Introduction

Under Nigerian law, the right to appeal a court decision is derived from the Constitution or the law establishing the relevant court.(1) The Court of Appeal is empowered by the Constitution to hear appeals from the National Industrial Court (NIC) and other courts of coordinate jurisdiction.(2) Appeals lie before the Court of Appeal either as of right or with leave. If it lies as of right, the appeal is filed without the requirement first to seek leave (ie, permission to appeal).

Regarding appeals from state high courts, the Federal High Court, the Shariah Court of Appeal and the Customary Court of Appeal, the Constitution defines the situations in which appeals lie as of right or with leave; further, the provisions are clear that appeals are allowed to the Court of Appeal. However, the Constitution allows appeals of NIC decisions to the Court of Appeal as of right only on questions of fundamental rights (as defined in Chapter IV), as they relate to matters on which the NIC has jurisdiction.(3) In the case of other NIC decisions, the Constitution provides:

"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 appeal shall be with the Leave of the Court of Appeal."(4)

This provision of the Constitution has been the subject of various opinions. A preponderance of opinion suggests that, apart from decisions involving fundamental rights, an NIC decision cannot be appealed to the Court of Appeal unless an act of the National Assembly allows it. The challenge posed by the restriction of the right to appeal NIC decisions has generated debate in legal circles. The resolution of disputes arising from employment contracts or disputes with trade unions affects a wide range of stakeholders, from members of the workforce (and their dependents) to employers and investors. Two diametrically opposed decisions of the Court of Appeal further illustrate the current debate.

Lagos Sheraton decision

Facts

In Lagos Sharaton Hotel & Towers v Hotel and Personal Services Senior Staff Association,(5) the appellant was a hotel located in Lagos State and the respondent was a trade association. The trade association sued the hotel at the Lagos division of the NIC and obtained relief from the court against it on behalf of some members of the association whose employment had been terminated by the hotel. The hotel filed a summons on notice, seeking:

  • interpretation or setting aside of the judgment; and
  • stay of execution of the judgment.

The NIC dismissed the summons and refused to grant the orders sought. The hotel then applied to the Lagos division of the Court of Appeal for leave to appeal against the decision, among other reliefs.

Decision

The Court of Appeal unanimously dismissed the application for leave and held that the right of appeal against NIC decisions lies of right only if it relates to fundamental rights and criminal matters. It stated that an appeal relating to other matters prescribed by statute will lie only by leave; further, until a statute is enacted which provides otherwise, no appeal can lie against NIC decisions, except in the circumstances provided by the Constitution.

Ekiti Government Service Commission decision

Facts

In Local Government Service Commission Ekiti State v Mr M K Bamisaye,(6) the respondent (M K Bamisaye) filed a suit against the appellant (the Ekiti State Local Government Service Commission) at the Ibadan, Oyo State division of the NIC. The NIC ruled in Bamisaye's favour on November 26 2012. The service commission then filed an application at the Ekiti division of the Court of Appeal for an order granting leave to appeal the judgment.

Decision

The Court of Appeal allowed the service commission's application for leave to appeal, holding that Section 9 of the National Industrial Court Act 2006 (the NIC Act) did not conflict with the Constitution in the issue at hand. The court based its decision on the premise that neither the NIC Act nor the Constitution provide for the NIC to be the final court in respect of any matter before it. The court held that while the law provides for appeals on questions of fundamental rights to come to the Court of Appeal as of right, no provision excludes a right of appeal other NIC decisions with leave. The court further held that since neither the Constitution nor the NIC Act expressly provide for the NIC to be a final court in any matter before it, the NIC should under no circumstances exercise the act of finality in a matter before it.(7) The court further emphasised that a court of law can be expressly made a final court only by the statute that created it or by another relevant law. It emphasised that no court can be a final court by mere implication.

Comment

The cases mentioned above are important developments in Nigerian legal jurisprudence, particularly as it relates to the right of parties to appeal NIC decisions to the Court of Appeal. The conflicting decisions of the two divisions of the Court of Appeal underscore the urgent need for intervention from the National Assembly to enact a law or amend the Constitution in order to confer appellate jurisdiction on the Court of Appeal over NIC decisions, as it has done for the other courts of coordinate jurisdiction with the NIC. Presently, no enactment of the National Assembly confers the right to appeal any NIC decision to the Court of Appeal except in respect of fundamental rights.

There is also a risk that a first-instance court such as the NIC may become high handed if its decisions are not subject to review by the appellate courts.

Unfortunately, the situation is further complicated by the fact that all appeals of NIC decisions end at the Court of Appeal, which means that the Supreme Court does not have the opportunity to clarify the obvious conflict between the two decisions reviewed here.

The intervention of the National Assembly will no doubt provide direction and help to avoid further conflict in Court of Appeal decisions on the subject.

For further information on this topic please contact Funke Agbor or Chukwuma Nzemechi at ACAS - LAW by telephone (+234 1 462 2094) or email (fagbor@acas-law.com or cnzemechi@acas-law.com). The ACAS - LAW website can be accessed at www.acas-law.com.

Endnotes

(1) Ekunola v CBN & Anor (2013) 15 NWLR (Pt 1377) 224 at 272G-H; Adigun v AG Oyo State (1987) 2 NWLR (465) 150; Ajomale v Yaduat (No 1) (1991) 5 NWLR (Pt 191) 257.

(2) Other Courts with coordinate jurisdiction with the NIC are the Federal High Court, the state high courts, the Customary Court of Appeal and the Shariah Court of Appeal.

(3) Section 243(2) of the Constitution.

(4) Section 243(3) of the Constitution.

(5) (2014) 9 CLRN Page 61.

(6) (2013) LPELR- 20407 (CA).

(7) (2013) LPELR- 20407, Paragraph E-F, Page 17.

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