Article written by Tolu OLATUNJI MCIArb(UK)[1]  and
Bukola BOWOTO[2]

Introduction

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supreme court Of Nigeria

The principles of natural justice and the constitutional right of appeal[3] are the basis of any legal system in the world today. Thus, for the purpose of justice and fairness, the court of first instance cannot also be that of last resort. In Nigeria, the right to appeal both in civil and criminal proceedings is recognised by the Constitution of the Federal Republic of Nigeria (‘Constitution’).[4] Such appeal may lie from the lower courts, to courts with appellate jurisdiction such as the Supreme Court, the Court of Appeal, the Sharia Court of Appeal, Customary Court of Appeal and the Federal or State High Courts.  

However, it is trite that an appeal cannot lie against the jurisdiction of any court except such a right of appeal is created by a statute.[5] Thus, the Constitution and subsidiary legislations must have created such a right of appeal before it can be considered. For the purpose of this paper, the laws creating the right of appeal from the National Industrial Court to the Court of Appeal will be considered.

By virtue of Section 240 of the Constitution as amended, the Court of Appeal enjoys exclusive jurisdiction to sit on appeals from the Federal High Court, High Court of the various States of the Federation, National Industrial Court, Sharia Court of Appeal and Customary Court of Appeal. By the same token, Part II and Part III of the Court of Appeal Act 2013 provides for appeals in civil and criminal cases. An equally significant subsidiary legislation is the Court of Appeal Rules of 2016 which provides the procedures for appeals in the Court of Appeal.  Such appeals may be as of right[6] or by the leave of Court.

The growth in global economic business has led to an inevitable increase in disputes amongst employees and employers in the work environment, buyers and sellers in the labour market and other economic related challenges. Thus, to ensure that economic disputes are expeditiously dispensed without delay, a specialised Court, known as the National Industrial Court was established in 1976 to determine matters pertaining to economic growth, labour market, industrial relations and so on, to ameliorate the problem of congestion of cases already being faced by the High courts.

The National Industrial Court was ensuingly re-established as a Superior Court of record by the Third Alteration of the 1999 Constitution in 2010. Sequel to this development, the National Industrial Court is now expressly and directly included in Section 6 of the Constitution in order to enable the court enjoy the status, jurisdiction and powers of a superior court of record. Also, by virtue of Section 254 (C) (1-4) of the Constitution and Section 7(1) of the National Industrial Court Act 2006, the National Industrial Court has the jurisdiction to the exclusion of any other courts of coordinate jurisdiction to adjudicate over civil and criminal cases relating to labour, employment, trade unions and industrial related matters.

Third Alteration of the 1999 Constitution

The central concern to this paper is, prior to the decision of the Supreme Court of Nigeria in Skye Bank Plc V. Iwu[7], the provision of Section 243(2) and (3) of the 1999 Constitution as amended literally provided that the National Industrial Court is a court of first and last instance, and so its decisions could not be appealed against except on the ground of breach of fundamental rights[8] or until the National Assembly enacts a law creating more grounds[9]. The reason for this conclusion is that the relevant provisions were vaguely constructed by the legislature and this led to the Court of Appeal in a number of cases applying the literal interpretation there by striking out appeals on the ground that the Court of Appeal had no jurisdiction to hear appeals from the National Industrial Court except on the ground of breach of fundamental rights.

Majorly, the cases of Coca-Cola (Nig.) Ltd. & 2 Ors v. Akinsanya (2013) 1 ACELR 28; (2013) 18 NWLR (PT. 1386) 255 and Lagos Sheraton Hotel & Towers v. Hotel Personal Services Senior Staff Association (2014) 14 NWLR (PT. 1426) 45 were used as a tool to challenge any appeal from the National Industrial Court and these two cases will be considered.

The Court of Appeal’s decision in Coca-Cola (Nig.) Ltd. & 2 Ors v. Akinsanya (2013) 1 ACELR 28 was handed down by a full panel of the Honourable Court. At page 73 lines 1-21 of the decision, Lokulo-Sodipe, JCA who delivered the lead judgment quoted the provisions of Section 243 (2)-(4) of the amended Constitution and there after posited as follows:

It is in my considered view clear from the provisions re-produced above; that the lower court (National Industrial Court) though a superior court of record is not in the same league with the Federal High Court or State High Courts against the backdrop of appeals. The lower court is clearly the only superior court of record created by the Constitution and whose decisions can never be tested on appeal in the Supreme Court. I have not said that the lower court is the only adjudicatory body established by the Constitution whose decision cannot be tested on appeal in the Supreme Court because I am aware that the amended Constitution has made the decisions of this Court in election matters (save Governorship and Presidential) not subject to appeals to the supreme court. But it must be noted that election matters are sui generis. In other words all that I am saying is that by virtue of the provisions of the Constitution hereinbefore referred to, the lower is the only superior court of record created by the Constitution that can entertain civil and criminal jurisdictions and whose decisions in respect of its civil jurisdiction are appealable to the Court of Appeal on ground of violation of fundamental rights provisions of Chapter IV of the Constitution only, and whose decision(s) can never get to the Supreme Court for review.

This decision above energised the Court of Appeal in the subsequent case of Lagos Sheraton Hotel & Towers v. Hotel Personal Services Senior Staff Association (Supra) where the court interestingly amplified its lack of jurisdiction on the subject. His Lordship Samuel Chukwudumebi Oseji, J.C.A. posited as follows:

From my humble understanding of the provisions of section 243 (2) and (3) of the 1999 Constitution (as amended), they are very clear and unambiguous as to the meaning of the message they intend to convey as pertaining to the scope and extent of the right of appeal from the National Industrial Court to the Court of Appeal.

By virtue of subsection 2, any party who is aggrieved with the decision of the National Industrial Court can appeal against such decision to the Court of Appeal as of right (which means that he does not require leave of either the lower court or this court to do so). Provided however, that the decision he seeks to appeal against must arise from questions of fundamental right as contained in Chapter IV of the Constitution in so far as it relates to matter upon which the National Industrial Court has jurisdiction to entertain as per section 254 (c) (1-5) of the said Constitution or any other jurisdiction as may be conferred upon it by an Act of the National Assembly. In other words, the only decisions of the National Industrial Court from which a party can exercise a right of appeal without much ado is where it emanates from questions of fundamental rights but limited to those contained in Chapter IV of the Constitution. I must quickly add here that this restriction does not extend to the right of appeal against the decision of the National industrial Court on criminal matters…. What can clearly be gleaned from the provisions of section 243 (2) and 254(C)(5) of the Constitution is that appeal from the National Industrial Court to the Court of Appeal can only be as of right on decisions connected with questions of fundamental rights under Chapter IV of the Constitution or decisions on criminal causes or matters arising from any causes or matters of which jurisdiction is conferred on the court by section 254 (C) (1-4) or any other Act of the National Assembly or by any other law.

The Court of Appeal in Lagos Sheraton Hotel & Towers v. Hotel Personal Services Senior Staff Association (Supra) went further to emphasise that “until there is an enactment to that effect (an Act of Parliament giving further jurisdiction to the Court of Appeal on appeals from the National Industrial Court) or a subsequent amendment of section 243 of the Constitution, the National Industrial Court remains the final and ultimate court in all causes or matters upon which it has jurisdiction except in decisions relating to questions of fundamental rights connected with Chapter IV of the Constitution or in criminal causes.”[10]

His Lordship Samuel Chukwudumebi Oseji, J.C.A. indeed admonished counsel that even if grounds relating to fundamental rights are smuggled into the grounds of appeal where there are no fundamental right issues arising from the decision of the National Industrial Court being appealed against, the Court of Appeal will see through same and ensure that it does not assume jurisdiction on such appeals. It almost seemed like the court was excited to do away with some cases on its docket.

Skye Bank Plc V. Iwu

The position above was law until the landmark judgment of the Supreme Court in the case of Skye Bank Plc V. Iwu[11], which put paid to the controversy on the appellate jurisdiction of the Court of Appeal over the decisions of the National Industrial Court. Acknowledging the confusion created by the Third Alteration of the Constitution, His Lordship Kudirat Motonmori, J.S.C. in the case stated as follows:

Where there are two possible meanings … the court must adopt the meaning that is more reasonable and which will avoid absurdity. It should give a wide and liberal interpretation that would best give effect to the intention of the law maker, unless there is express provision to the contrary…the adoption of the mischief rule would best enable the court to resolve the issue…

The apex court in resolving the contention stressed that all sections of the Constitution should be construed together and not in isolation. Thus, Section 243(2), (3) must be read alongside Section 240 and Section 243(4). It further reiterated the statement of Niki Tobi J.S.C. in INEC V. Musa[12], that ‘constitutional provisions are of equal strength and constitutionality; none is inferior or superior to the other’. Thus, it will be wrong to construe Section 243(2) (3) in a way that will render Section 240 and 243(4) nugatory or redundant. This position of the apex court is logical because while Section 240 of the Constitution simply gives the Court of Appeal a blanket jurisdiction over appeals from the National Industrial Court among others, Section 243 (4) is more specific. Section 243 (4) of the 1999 Constitution as amended provides thus:

“Without prejudice to the provisions of section 254C (5) of this Act the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final”

Section 234(4) did not limit the civil jurisdiction of the Court of Appeal on appeals from the National Industrial Court. The use of the word “any” in the provision implies that such right is not limited to only fundamental rights.

The Supreme Court also considered the long title of the Act for the general explanation of Section 243(2) (3) and Section 240 and 243(4) which reads ‘’an Act to alter the Constitution of the Federal Republic of Nigeria Cap. 23, Law of the Federation of Nigeria 2004, for the establishment of the National Industrial Court under the Constitution ’’It is the Court’s holding that the alteration only means that the National Industrial Court now enjoys the status of a court of record like other Courts in Sections 6(3) and (5) (a) – (i) of the Constitution and it will be wrong to say that the National Industrial Court wears the apparel of finality, thus, disrobing itself as a lower court. Also, since by virtue of Section 254 D (1) of the Constitution as amended the National Industrial Court ranks equipollently as a court of coordinate jurisdiction with the high court, then by logic, it comes within the categories of trial courts over which the Court of Appeal exercises appellate jurisdiction.

The Supreme Court observed that the Marginal or Side notes of Section 243 of the 1999 Constitution further states: ‘’Exercise of right of appeal from Federal, National Industrial Court, of High Courts in civil or criminal matters’’.  This shows that, while Section 240 clearly defines the specific right of appeal, Section 243 (2) (3) merely prescribes the procedure for exercising the right of appeal. By this the Supreme Court meant, even if there was an error in the provisions of Section 243, it should affect the procedure and not the right to appeal.

The Supreme Court observed that the words ‘’subject to’’ in Section 240 of the Constitution are words of subordination, thus it should be construed in line with other provisions on the right of appeal. Consequently, Section 36(2) (b) Constitution would make it unconstitutional if an Act of the National Assembly makes the decision of the National Industrial Court conclusive except on questions of fundamental rights.[13] Also, Section 17(2) of the Constitution which provides for easy accessibility to the court of law is also relevant. Correspondingly, the use of the word ‘’any’’ in Section 243(4) of the Constitution also shows that there are no limitations to the nature of civil cases to be brought to the Court of Appeal. The Court concluded that there is no express provision conferring the National Industrial Court with the status of finality, and thus same should not be implied.

Copy and Paste Drafting

Now a question that bothered this writer, which is the kernel of this paper and which the Supreme Court resolved in Skye Bank Plc V. Iwu supra is whether the parliament really intended the interpretation of the Court of Appeal in Coca-Cola (Nig.) Ltd. & 2 Ors V. Akinsanya (2013) and Lagos Sheraton Hotel & Towers V. Hotel Personal Services Senior Staff Association (2014) supra and the Supreme Court was probably wrong to set aside the decisions of the Court of Appeal? A follow up question to this is, if indeed the Supreme Court was right in Skye Bank Plc V. Iwu, what in heaven’s name led the Nigerian National Assembly into a Constitutional Amendment that misled a full panel of the Court of Appeal?

Looking at the laws involved, it became apparent that despite the unconstitutionality of the provisions of Section 9 of the National Industrial Court Act 2006, the parliament copied the same provisions and dumped it in the Constitution without much thought. Section 9 of the National Industrial Court Act provides as follows:

(1)       Subject to the provisions of the constitution of the Federal Republic of Nigeria 1999 and subsection (2) of this section, no Appeal shall lie from the decision of the court to the Court of Appeal or any other court except as may be prescribed by this Act or any other Act of the National Assembly.

(2)       An appeal from the decision of the court shall lie only as of right to the Court of Appeal only on questions of fundamental rights as contained in chapter IV of the constitution of the Federal Republic of Nigeria.

Section 243(2) – (4) of the Constitution as amended specifically provides for appeals from the National Industrial Court to the Court of Appeal. The provisions thereof read thus:-

(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.

(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly: Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such shall be with the leave of the Court of Appeal.

(4) Without prejudice to the provisions of section 254C(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.[14]

This exposes the inadequacy of the draftsmen and law makers in not reviewing the provisions of the draft amendment to ensure there is no conflict and that it corresponds with their legislative intentions.

A literal interpretation of the above provisions stricto senso shows that an appeal from the decision of the National Industrial Court is limited to questions of fundamental right as contained in Chapter IV of the Constitution or where an enabling Act of parliament prescribes an appeal. This interpretation led to serious confusions and many cases suffered as appellants were denied their constitutional right of appeal in the process. Thus it became pertinent that other rules of construction be considered especially when the plain or literal interpretation only led to confusion and outright conflict in the constitution. Upon a thorough review, the Supreme Court discovered that an application of the literal rule will circumvent the true intention of the legislature and thus opted for the mischief rule of interpretation.[15]

It is pertinent to note however that while the purpose of the courts especially the Supreme Court is to resolve legal quagmire such as the one created by the legislature in this circumstance, many cases often suffer while the confusion is raging.

Recommendations

The effectiveness of any legislation depends greatly on the way in which the intention of the legislature is being expressed. It must be capable of being interpreted and devoid of absurdity. In light of this, it is pertinent to note that the “copy and paste” drafting employed in Section 243 (2) and (3) of the Constitution was inelegant and unsavoury. The Section was fraught with ambiguity and created contentions amongst legal minds and authors. Consequently, had the cases decided before the Judgment of the Supreme Court in Skye Bank Plc V. Iwu[16] come up today or in the current dispensation they would have been decided differently. This writer seek to impress that subsequently, draftsmen should ensure clarity of intention when drafting legislations.

Furthermore, a closer look at the Court of Appeal Act of 2013, Court of Appeal Rules of 2016 and also the National Industrial Court Act of 2006 reveals that since the amendment of the Constitution in 2010, necessary changes have not been effected. Thus, this writer recommends that the aforementioned Laws be reviewed and amended so as ensure that they are in tandem with recent development.

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Tolulope olatunji

[1] Tolu Olatunji is a Dispute Resolution Specialist and a researcher. He practices law at T&A Legal. tao.ademi@gmail.com

[2] Bukola Bowoto is a final year law student at the University of Ibadan. bukolabowoto@ymail.com

[3] Oputa J.S.C. in Oredoyin V. Arowolo [1989] 4 NWLR (Pt. 114) 172 at 211, described an appeal as an invitation to a higher court to find out whether, on proper consideration of facts placed before it, and the applicable law, the lower court arrived at a correct decision.

[4] See Chapter VII of the 1999 Constitution of the Federal Republic of Nigeria

[5] Adigun & Ors. V. A.G Oyo State [1987] 2 NWLR (pt. 56) 197 at 230

[6] An appeal is of right when it relates to any issue involving the fundamental human rights of a person as guaranteed by the Constitution, issues of law, final decision of a High Court where the High Court is the court of first instance or the general interpretation of the Constitution. However an appeal with leave of the court will include appeals that do not fall within the categories aforementioned.  

[7] (2017) 10 SCM

[8] Coca-Cola Nig. Ltd v Akinsanya (2013) 18 NWLR (Pt. 1386) 255

[9] Lagos Sheraton Hotel & Towers V. H.P.S.S.A. (2014) 14 NWLR (Pt. 1426)

[10] See pages pages 65 paragraph D through to page 70 paragraph G of the decision.

[11] Supra

[12] (2003) LPELR-24927 (SC)

[13] Hart V. Military Governor Rivers State & Ors (1976) 11 SC (Reprint) 109 SC

[14] A similar provision of the law was contained in Section 21 (3) of the Trade Dispute Act, Cap. T8, LFN, 2004.

[15] The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament’s intention. The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament’s intent. It can be argued that this undermines Parliament’s supremacy and is undemocratic as it takes law-making decisions away from the legislature. Saksham Dwivedi in Subhyanka Rao, RMLNLU’s Mischief Rule of Statutory Interpretation. Culled 3rd December, 2018 from https://www.lawctopus.com/academike/mischief-rule-statutory-interpretation/

[16] supra

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