ENLARGEMENT OF
RIGHTS OF APPEAL FROM THE DECISIONS OF THE NIGERIAN NATIONAL INDUSTRIAL COURT
RIGHTS OF APPEAL FROM THE DECISIONS OF THE NIGERIAN NATIONAL INDUSTRIAL COURT
By Dr. Olumide
Kolawole Obayemi, LL.M.; SJD*
Kolawole Obayemi, LL.M.; SJD*
I. Introduction
With
the controversies surrounding the rights of appeal from the decisions of the
Nigerian National industrial Court (NIC), we submit that since its
English
counterpart has been abolished, we may turn to the English colonies in Asia and
West Indies for guidance. For this, we choose two (2) veritable examples: (a) Antigua
and
Barbuda and (b) Malaysia.
the controversies surrounding the rights of appeal from the decisions of the
Nigerian National industrial Court (NIC), we submit that since its
English
counterpart has been abolished, we may turn to the English colonies in Asia and
West Indies for guidance. For this, we choose two (2) veritable examples: (a) Antigua
and
Barbuda and (b) Malaysia.
Borrowing
from Antigua and Barbuda, we make suggestions that there should be direct
right of appeal from the NIC to the Court of Appeal on the following
grounds:
from Antigua and Barbuda, we make suggestions that there should be direct
right of appeal from the NIC to the Court of Appeal on the following
grounds:
(a) that the NIC
had no jurisdiction in the matter, but so however, that it shall not be competent
for the Court of Appeal to entertain such ground of appeal, unless objection to
the jurisdiction of the Court has been formally taken at some time during the
progress of the matter before the making of the order or award;
had no jurisdiction in the matter, but so however, that it shall not be competent
for the Court of Appeal to entertain such ground of appeal, unless objection to
the jurisdiction of the Court has been formally taken at some time during the
progress of the matter before the making of the order or award;
(b) that the NIC has exceeded its
jurisdiction in the matter;
jurisdiction in the matter;
(c) that the order or award has been
obtained by fraud;
obtained by fraud;
(d). that any
finding or decision of the NIC in any matter is erroneous in point of law; or
finding or decision of the NIC in any matter is erroneous in point of law; or
(e) that some other specific illegality, not
hereinbefore mentioned, and substantially affecting the merits of the matter,
has been committed in the course of the proceedings.
hereinbefore mentioned, and substantially affecting the merits of the matter,
has been committed in the course of the proceedings.
We
also argue that the Attorney-Generals in each state of the federation and that
of the federal government should have a right to intervene in meritorious
cases. Again, borrowing from Antigua and Barbuda, there is a right of Intervention
by the Attorney-General.
also argue that the Attorney-Generals in each state of the federation and that
of the federal government should have a right to intervene in meritorious
cases. Again, borrowing from Antigua and Barbuda, there is a right of Intervention
by the Attorney-General.
Where any
dispute is before the Court, the Attorney-General may, for the purpose of
giving such assistance to the Court as he may be able to provide with the
consent of the Court, intervene, where it appears to him that some question of
public importance or affecting the public interest or both has arisen and that
it is fit and proper that the public interest should be represented therein.
dispute is before the Court, the Attorney-General may, for the purpose of
giving such assistance to the Court as he may be able to provide with the
consent of the Court, intervene, where it appears to him that some question of
public importance or affecting the public interest or both has arisen and that
it is fit and proper that the public interest should be represented therein.
No
one would doubt, as Bamidele Aturu had noted, that there are vital issues surrounding
the NIC’s jurisdiction, such as, the jurisdiction of the various Superior Courts
and how jurisdictional overlap and other problems can be constitutionally dealt
with. It is against this background that one attempts to address the issue of
the jurisdictional confusion militating against the proper functioning of the
National Industrial Court.
one would doubt, as Bamidele Aturu had noted, that there are vital issues surrounding
the NIC’s jurisdiction, such as, the jurisdiction of the various Superior Courts
and how jurisdictional overlap and other problems can be constitutionally dealt
with. It is against this background that one attempts to address the issue of
the jurisdictional confusion militating against the proper functioning of the
National Industrial Court.
II. Historical Background of the Nigerian
National Industrial Court.
National Industrial Court.
The NIC was
established in 1976 to decide trade and union disputes and to create a
sustainable industrial harmony. The founding legislation is the Trade Disputes
Act, Cap 432, Laws of the Federation of Nigeria, 1990 (“TDA”).
established in 1976 to decide trade and union disputes and to create a
sustainable industrial harmony. The founding legislation is the Trade Disputes
Act, Cap 432, Laws of the Federation of Nigeria, 1990 (“TDA”).
This is similar to the
Industrial Court in United Kingdom, where the Industrial Court (the Court) is a
Tribunal Non-Departmental Public Body with statutory powers. It was originally
set up in 1919 to provide arbitration in industrial disputes and it still
carries out this voluntary arbitration role. However its main function is now
to adjudicate on applications relating to statutory recognition and
derecognition of trade unions for collective bargaining purposes, where such
recognition or derecognition cannot be agreed voluntarily. It also has a statutory power in relation to
determining disputes between trade unions and employers over the disclosure of
information for collective bargaining purposes.
In addition, it has responsibility for dealing with complaints under a
range of legislation deriving from European Directives, which provide employees
with Information and Consultation rights at national and European level.
Industrial Court in United Kingdom, where the Industrial Court (the Court) is a
Tribunal Non-Departmental Public Body with statutory powers. It was originally
set up in 1919 to provide arbitration in industrial disputes and it still
carries out this voluntary arbitration role. However its main function is now
to adjudicate on applications relating to statutory recognition and
derecognition of trade unions for collective bargaining purposes, where such
recognition or derecognition cannot be agreed voluntarily. It also has a statutory power in relation to
determining disputes between trade unions and employers over the disclosure of
information for collective bargaining purposes.
In addition, it has responsibility for dealing with complaints under a
range of legislation deriving from European Directives, which provide employees
with Information and Consultation rights at national and European level.
The National
Industrial Court was first set up pursuant to section 19 of the TDA. The TDA
created the NIC as a specialised tribunal, whose jurisdiction is solely to the
exclusion of all other courts, on ‘matters relating to or connected with any
labor, employment, trade unions, industrial relations and matters arising from
workplace, the conditions of service, including health, safety, welfare of
labor, employees, workers and matters incidental thereto or connected
therewith’ See, Section 7(1) of the National Industrial Court Act (2006)
(“NICA”).
Industrial Court was first set up pursuant to section 19 of the TDA. The TDA
created the NIC as a specialised tribunal, whose jurisdiction is solely to the
exclusion of all other courts, on ‘matters relating to or connected with any
labor, employment, trade unions, industrial relations and matters arising from
workplace, the conditions of service, including health, safety, welfare of
labor, employees, workers and matters incidental thereto or connected
therewith’ See, Section 7(1) of the National Industrial Court Act (2006)
(“NICA”).
Under section 15 of TDA,
the NIC is conferred with original jurisdiction to entertain applications
seeking the interpretation of the provisions of a collective agreement.
the NIC is conferred with original jurisdiction to entertain applications
seeking the interpretation of the provisions of a collective agreement.
The term, “collective
agreement” as defined under section 47 of TDA is “any agreement in writing for
the settlement of disputes and relating to terms of employment and physical
conditions of work concluded between an employer or a group of employers and a
trade union or trade unions.
agreement” as defined under section 47 of TDA is “any agreement in writing for
the settlement of disputes and relating to terms of employment and physical
conditions of work concluded between an employer or a group of employers and a
trade union or trade unions.
Further, section 24 of
TDA also provides that a right of appeal shall lie to the court from the award
of the Industrial Arbitration Panel (IAP) in cases of intra-union disputes
arising from the organisation and running of a trade union as laid down in the
union constitution or inter-union trade disputes arising from the restructuring
of trade unions established under the Trade Unions Act.
TDA also provides that a right of appeal shall lie to the court from the award
of the Industrial Arbitration Panel (IAP) in cases of intra-union disputes
arising from the organisation and running of a trade union as laid down in the
union constitution or inter-union trade disputes arising from the restructuring
of trade unions established under the Trade Unions Act.
Section 20 of the TDA
confers exclusive jurisdiction on the NIC to make awards for the purpose of
settling trade disputes and to determine, among other things, questions as to
the interpretation of the terms of settlement of any trade dispute as recorded
in a any memorandum during or after the process of conciliation.
confers exclusive jurisdiction on the NIC to make awards for the purpose of
settling trade disputes and to determine, among other things, questions as to
the interpretation of the terms of settlement of any trade dispute as recorded
in a any memorandum during or after the process of conciliation.
III. The Advent of the Nigeria Military
Rule Between 1983-1999.
Rule Between 1983-1999.
From 1976 until 1999,
the NIC issued several decisions in which it affirmed that the NIC’s
jurisdiction was not a court of first instance. In other word, a precursor to
filing a labor dispute case with the NIC mandated that the matter must concern
an award from the Industrial Arbitration Panel (IAP) under section 24 of TDA providing
for a right of appeal to the NIC from the award of the IAP. This was reinforced
in MARITIME
WORKERS UNION OF NIGERIA v NLC (unreported) Suit No. NIC/5A/2001
delivered on July 24th, 2001, the court struck out the applicants’
suit on the ground that it had no jurisdiction to entertain an intra- union dispute
as a court of first instance.
the NIC issued several decisions in which it affirmed that the NIC’s
jurisdiction was not a court of first instance. In other word, a precursor to
filing a labor dispute case with the NIC mandated that the matter must concern
an award from the Industrial Arbitration Panel (IAP) under section 24 of TDA providing
for a right of appeal to the NIC from the award of the IAP. This was reinforced
in MARITIME
WORKERS UNION OF NIGERIA v NLC (unreported) Suit No. NIC/5A/2001
delivered on July 24th, 2001, the court struck out the applicants’
suit on the ground that it had no jurisdiction to entertain an intra- union dispute
as a court of first instance.
After the military
struck and seized power in 1983, military laws constituted the grundnorm and so
military Decrees were superior to the unsuspended part of the Constitution, as
provided by the Constitution (Suspension & Modification) Decree No. 107 of
1993; See also, LABIYI v ANRETIOLA (1992) 8 NWLR (Pt.258) 139).
struck and seized power in 1983, military laws constituted the grundnorm and so
military Decrees were superior to the unsuspended part of the Constitution, as
provided by the Constitution (Suspension & Modification) Decree No. 107 of
1993; See also, LABIYI v ANRETIOLA (1992) 8 NWLR (Pt.258) 139).
Thus, in 1992, the
Babangida’s military government amended the TDA, via the
Trade Disputes (Amendment) Decree No 47 of 1992 which expanded the jurisdiction
of the NIC to include both intra-union and inter-union disputes—a
position taken by the Supreme Court in UDOH v O.H.M.B (1993) 7 NWLR
(Pt.304)139. The Court of Appeal in DANIEL
v FADUGBA (1998) 13 NWLR(Pt. 582) 482; NURTW v OGBODO (1998) 2
NWLR (Pt. 537): and TIDEX( NIG.) LTD v NUPENG (1998) 11 NWLR (Pt. 573) 263, also
gave effect to the Trade Disputes (Amendment)
Decree No 47 of 1992 expanding the NIC’s jurisdiction.
Babangida’s military government amended the TDA, via the
Trade Disputes (Amendment) Decree No 47 of 1992 which expanded the jurisdiction
of the NIC to include both intra-union and inter-union disputes—a
position taken by the Supreme Court in UDOH v O.H.M.B (1993) 7 NWLR
(Pt.304)139. The Court of Appeal in DANIEL
v FADUGBA (1998) 13 NWLR(Pt. 582) 482; NURTW v OGBODO (1998) 2
NWLR (Pt. 537): and TIDEX( NIG.) LTD v NUPENG (1998) 11 NWLR (Pt. 573) 263, also
gave effect to the Trade Disputes (Amendment)
Decree No 47 of 1992 expanding the NIC’s jurisdiction.
The constitutional
flavor added by the 1992 amendment has been a subject of debate because the
1992 amendment specifically, deemed the TDA to be an Act of the National
Assembly by virtue of section 315 of the 1979 Constitution.
flavor added by the 1992 amendment has been a subject of debate because the
1992 amendment specifically, deemed the TDA to be an Act of the National
Assembly by virtue of section 315 of the 1979 Constitution.
Specifically, section
315 of the 1979 Constitution stated that no person shall commence an action,
the subject matter of a trade dispute or any inter or intra union dispute in a
court of law.
315 of the 1979 Constitution stated that no person shall commence an action,
the subject matter of a trade dispute or any inter or intra union dispute in a
court of law.
The issue then is
whether the jurisdiction of the regular state and federal superior courts to
handle matters listed under the 1992 Amendment have been ousted.
whether the jurisdiction of the regular state and federal superior courts to
handle matters listed under the 1992 Amendment have been ousted.
From 1992 until 1999,
state and federal superior courts respected the ouster clause in the 1992 amendment
state and federal superior courts respected the ouster clause in the 1992 amendment
The 1992 amendment
further also conferred the status of a superior court of record on the NIC.
further also conferred the status of a superior court of record on the NIC.
IV. 1999 Federal Constitution
With the end of the
military rule in 1999, superior courts started to flex their muscles and so
rejected the ouster clauses in the military decrees. By this in several
decisions, superior courts started to foray into labor disputes. See, e.g., KALANGO
v DOKUBO (2003) 15 WRN 32 and Attorney-General of OYO STATE v NLC
(2003) 8NWLR 1 which hold that the provisions of the Trade Disputes(Amendment)
Act that confers exclusive jurisdiction on NIC on labour matters are
unconstitutional and so null and void.
military rule in 1999, superior courts started to flex their muscles and so
rejected the ouster clauses in the military decrees. By this in several
decisions, superior courts started to foray into labor disputes. See, e.g., KALANGO
v DOKUBO (2003) 15 WRN 32 and Attorney-General of OYO STATE v NLC
(2003) 8NWLR 1 which hold that the provisions of the Trade Disputes(Amendment)
Act that confers exclusive jurisdiction on NIC on labour matters are
unconstitutional and so null and void.
The matter came to a
head in 2010 when the Nigerian Supreme Court held thus in National Union of Electricity
Employees v Bureau of Public Enterprise (2010) LPELR-SC.62/2004:
head in 2010 when the Nigerian Supreme Court held thus in National Union of Electricity
Employees v Bureau of Public Enterprise (2010) LPELR-SC.62/2004:
“by Decree No.47 of 1992
arrogating to the National Industrial Court a superior court of record as has
been contended by the appellants does not by that token make the said National
Industrial Court a superior court of record without an amendment of the
provisions of Section 6(3) and (5) of the 1999 constitution which has listed
the only superior courts of record recognized and known to the 1999
Constitution and the list does not include the National Industrial Court; until
the Constitution is amended it remains a subordinate court to the High Court.”
arrogating to the National Industrial Court a superior court of record as has
been contended by the appellants does not by that token make the said National
Industrial Court a superior court of record without an amendment of the
provisions of Section 6(3) and (5) of the 1999 constitution which has listed
the only superior courts of record recognized and known to the 1999
Constitution and the list does not include the National Industrial Court; until
the Constitution is amended it remains a subordinate court to the High Court.”
V. Efforts Toward Amendments
Earlier
on, in June 2005, the National Assembly took a wise decision to allow the
judiciary subcommittee of the Constitution Review Committee by holding a
separate public hearing recently in Abuja. Thus, on November 10, 2005, the NIC
bill was passed by the Senate yesterday. The bill was expected to both ease and
hasten the dispensation of justice in matters related to labor and trade
unions. The NIC bill then proceeded to await concurrence by the House of
Representatives. Presenting the final report on the bill, the chairman, Senate
Committee on Judiciary and Legal Matters, Professor Osarheimen Osunbor,
explained the objectives of the bill:
on, in June 2005, the National Assembly took a wise decision to allow the
judiciary subcommittee of the Constitution Review Committee by holding a
separate public hearing recently in Abuja. Thus, on November 10, 2005, the NIC
bill was passed by the Senate yesterday. The bill was expected to both ease and
hasten the dispensation of justice in matters related to labor and trade
unions. The NIC bill then proceeded to await concurrence by the House of
Representatives. Presenting the final report on the bill, the chairman, Senate
Committee on Judiciary and Legal Matters, Professor Osarheimen Osunbor,
explained the objectives of the bill:
“The objectives of the bill, in the opinion of
the Joint Committee, are to among others, re- establish the court as a superior
court of record and to provide for an enabling law that will regulate its
functions, thus giving it its proper status as a court of law. This, it is
envisaged, will cure inherent defects of the current regime. For example,
litigants cannot approach the court directly in majority of cases except
through a referral from the Minister of Labour, Employment and Productivity.
Secondly, the situation whereby the court cannot sit unless it is presided over
by the President of the Court does not augur well for the administration of
justice. These are some of the apparent defects, which this bill seeks to
cure.”
the Joint Committee, are to among others, re- establish the court as a superior
court of record and to provide for an enabling law that will regulate its
functions, thus giving it its proper status as a court of law. This, it is
envisaged, will cure inherent defects of the current regime. For example,
litigants cannot approach the court directly in majority of cases except
through a referral from the Minister of Labour, Employment and Productivity.
Secondly, the situation whereby the court cannot sit unless it is presided over
by the President of the Court does not augur well for the administration of
justice. These are some of the apparent defects, which this bill seeks to
cure.”
Osunbo
added:
added:
“With a separate enabling law for the National
Industrial Court, the court even as a specialised court, will now be fully
integrated into the structure of the nation’s judiciary as a superior court of
law thereby securing its independence and impartiality in its adjudicatory
functions. Like all other federal courts, matters such as appointment and
discipline of judges as well as appropriation to the court, will be brought
fully under the authority of the National Judicial Council.
Industrial Court, the court even as a specialised court, will now be fully
integrated into the structure of the nation’s judiciary as a superior court of
law thereby securing its independence and impartiality in its adjudicatory
functions. Like all other federal courts, matters such as appointment and
discipline of judges as well as appropriation to the court, will be brought
fully under the authority of the National Judicial Council.
The
president of the NIC,
Justice Babatunde A. Adejumo, in a swift reaction, said the new law would be a
major step forward in the history of labour-related cases:
president of the NIC,
Justice Babatunde A. Adejumo, in a swift reaction, said the new law would be a
major step forward in the history of labour-related cases:
“By the time it fully becomes a law, it will
help us to have a quicker dispensation of trade dispute matters in the country.
It will also encourage foreigners to invest more in Nigeria since they now know
that when they invest their money, the problems that may arise between them and
their employees can now be easily resolved by this court. What has happened
today is good for the nation and it is good for the economy of the nation and
the labour force as well as employers of labour generally.”
help us to have a quicker dispensation of trade dispute matters in the country.
It will also encourage foreigners to invest more in Nigeria since they now know
that when they invest their money, the problems that may arise between them and
their employees can now be easily resolved by this court. What has happened
today is good for the nation and it is good for the economy of the nation and
the labour force as well as employers of labour generally.”
The
NIC bill as passed
had jurisdiction in civil cases relating to employment, labour, trade unions,
industrial relations and conditions, health, safety and welfare of employees.
NIC bill as passed
had jurisdiction in civil cases relating to employment, labour, trade unions,
industrial relations and conditions, health, safety and welfare of employees.
In,
2010, there was an
alteration to the 1999 Constitution via
a legislative intervention providing for the establishment of the NIC as a
superior court of record under the Constitution. Further, the 2010 Act also
provided an elaborate scope of the NIC’s specified jurisdiction by the
insertion of a new enactment in Section 254C of the Constitution of the Federal
Republic of Nigeria (Third Alteration) Act 2010.
2010, there was an
alteration to the 1999 Constitution via
a legislative intervention providing for the establishment of the NIC as a
superior court of record under the Constitution. Further, the 2010 Act also
provided an elaborate scope of the NIC’s specified jurisdiction by the
insertion of a new enactment in Section 254C of the Constitution of the Federal
Republic of Nigeria (Third Alteration) Act 2010.
The
2010 Act conferred the NIC with the exclusive adjudicating power on labour and
industrial relations laws, as opposed to the unlimited jurisdiction of the
States’ High Court.
2010 Act conferred the NIC with the exclusive adjudicating power on labour and
industrial relations laws, as opposed to the unlimited jurisdiction of the
States’ High Court.
V. The new Constitution of the Federal Republic
of Nigeria (Third Alteration) Act 2010.
of Nigeria (Third Alteration) Act 2010.
No
one would doubt the labor that went into the preparation and enactment of the
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010.
According to Section 243(2) and (3) of the Constitution of the Federal Republic
of Nigeria (Third Alteration) Act 2010:
one would doubt the labor that went into the preparation and enactment of the
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010.
According to Section 243(2) and (3) of the Constitution of the Federal Republic
of Nigeria (Third Alteration) Act 2010:
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.
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.
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:
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.
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.
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.
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.
We
now arrive at the kernel of this paper: the scope of rights of appeal under
from the NIC
now arrive at the kernel of this paper: the scope of rights of appeal under
from the NIC
VI. Rights of Appeal
From
the above, there is a right of appeal (a) where the issues involve fundamental
human rights; (b) in decisions of the NIC on matters prescribed by an Act of
the Nigerian National Assembly; and (c) where an Act allows an appeal from the
NIC to the court of appeal, such shall be via a leave obtained allowing the
appeal by the Court of Appeal.
the above, there is a right of appeal (a) where the issues involve fundamental
human rights; (b) in decisions of the NIC on matters prescribed by an Act of
the Nigerian National Assembly; and (c) where an Act allows an appeal from the
NIC to the court of appeal, such shall be via a leave obtained allowing the
appeal by the Court of Appeal.
As
provided under Section 9(1) & (2) of the NIC Act, the decision of the Court
of Appeal on civil matters (as opposed to criminal matters) from the NIC shall
be final.
provided under Section 9(1) & (2) of the NIC Act, the decision of the Court
of Appeal on civil matters (as opposed to criminal matters) from the NIC shall
be final.
Smart
litigants have couched their appellate grounds as involving fundamental human
rights so as to have a right of appeal without leave—while claiming that they
were denied fair hearing. As Hon. Okoro, JCA had pointed out in
Nigerian Westminster Dredging & Marine Ltd v John Ovoh (Suing for himself
and as representative of the 679 Junior Staff of Nigerian Dredging & Marine
Ltd. Retrenchment in 1994). CA/L/697/08 Date of decision under reference:
14th day of May 2012:
litigants have couched their appellate grounds as involving fundamental human
rights so as to have a right of appeal without leave—while claiming that they
were denied fair hearing. As Hon. Okoro, JCA had pointed out in
Nigerian Westminster Dredging & Marine Ltd v John Ovoh (Suing for himself
and as representative of the 679 Junior Staff of Nigerian Dredging & Marine
Ltd. Retrenchment in 1994). CA/L/697/08 Date of decision under reference:
14th day of May 2012:
“I had earlier stated
in this judgment while dealing with the preliminary Objection herein that
section 9 (2) of the National Industrial Court Act permits an appeal to lie
from the National Industrial Court 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, 1999. Sub-paragraph (1) thereof states that no
appeal shall lie from the decisions of the National Industrial Court to the
Court of Appeal or any other court except as provided for in the Act.
Therefore, any attempt to foist on this court any appeal on issues outside
questions of fundamental rights shall not be entertained. Thus, I shall
determine this appeal strictly on issue as to whether the Appellant herein was
given fair hearing by the lower court or not. Other matters which do not relate
to questions of fundamental right but which are stuffed into the issue in order
to beat the provision of Section 9 (1) of the National Industrial Court Act,
shall not be considered.”
in this judgment while dealing with the preliminary Objection herein that
section 9 (2) of the National Industrial Court Act permits an appeal to lie
from the National Industrial Court 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, 1999. Sub-paragraph (1) thereof states that no
appeal shall lie from the decisions of the National Industrial Court to the
Court of Appeal or any other court except as provided for in the Act.
Therefore, any attempt to foist on this court any appeal on issues outside
questions of fundamental rights shall not be entertained. Thus, I shall
determine this appeal strictly on issue as to whether the Appellant herein was
given fair hearing by the lower court or not. Other matters which do not relate
to questions of fundamental right but which are stuffed into the issue in order
to beat the provision of Section 9 (1) of the National Industrial Court Act,
shall not be considered.”
We
therefore agree with Afolabi Kuti that since the state and federal superior
courts have unlimited jurisdiction over enforcement of fundamental human
rights, there would be no genuine cases that would afford outright rights of
appeal from the NIC to the Court of Appeal.
therefore agree with Afolabi Kuti that since the state and federal superior
courts have unlimited jurisdiction over enforcement of fundamental human
rights, there would be no genuine cases that would afford outright rights of
appeal from the NIC to the Court of Appeal.
From
this, the decision of the NIC appears to be final.
this, the decision of the NIC appears to be final.
Second
as to the appellate right stated thus: “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”—there has to be a proper amendment of
the Constitution before such a right can be asserted. Apart from the National
Industrial Court Act and the Constitution of the Federal Republic of Nigeria
(Third Alteration) Act 2010, there is no other Act prescribing rights of
appeal.
as to the appellate right stated thus: “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”—there has to be a proper amendment of
the Constitution before such a right can be asserted. Apart from the National
Industrial Court Act and the Constitution of the Federal Republic of Nigeria
(Third Alteration) Act 2010, there is no other Act prescribing rights of
appeal.
Again,
from this, the decision of the NIC appears to be final.
from this, the decision of the NIC appears to be final.
Finally,
the only other appellate right appears to be matters of labor disputes
involving criminal elements. As stated by Rupert Irikefe, appeals can lie from
the decisions of the National Industrial Court to the Court of Appeal where the
subject matter of the proceedings involves criminal causes and matters arising
from any cause or matter of which jurisdiction is conferred on the National
Industrial Court by Section 254C of the Constitution of Nigeria as amended by
the Third Alteration Act, 2010 or any other Act of the National Assembly or any
law in force in any part of the Federation.
the only other appellate right appears to be matters of labor disputes
involving criminal elements. As stated by Rupert Irikefe, appeals can lie from
the decisions of the National Industrial Court to the Court of Appeal where the
subject matter of the proceedings involves criminal causes and matters arising
from any cause or matter of which jurisdiction is conferred on the National
Industrial Court by Section 254C of the Constitution of Nigeria as amended by
the Third Alteration Act, 2010 or any other Act of the National Assembly or any
law in force in any part of the Federation.
Such
cases are few.
cases are few.
This
has led to the calls for an amendment to statutory rights of appeal from the
NIC.
has led to the calls for an amendment to statutory rights of appeal from the
NIC.
VII. An Examination of CHAPTER 214, of the
INDUSTRIAL COURT ACT of Antigua and Barbuda
INDUSTRIAL COURT ACT of Antigua and Barbuda
Let
us examine CHAPTER 214, of the INDUSTRIAL COURT ACT of Antigua and Barbuda
us examine CHAPTER 214, of the INDUSTRIAL COURT ACT of Antigua and Barbuda
Section
17 of the Antigua and Barbuda Act dealing with Appeal on point of law, provides
thus:
17 of the Antigua and Barbuda Act dealing with Appeal on point of law, provides
thus:
17. (1) Subject to this Act, any party to a matter
before the Court shall be entitled as of right to appeal to the Court of Appeal
on any of the following grounds, but no others –
before the Court shall be entitled as of right to appeal to the Court of Appeal
on any of the following grounds, but no others –
(a)
that the Court had no jurisdiction in the matter, but so however, that it shall
not be competent for the Court of Appeal to entertain such ground of appeal,
unless objection to the jurisdiction of the Court has been formally taken at
some time during the progress of the matter before the making of the order or
award;
that the Court had no jurisdiction in the matter, but so however, that it shall
not be competent for the Court of Appeal to entertain such ground of appeal,
unless objection to the jurisdiction of the Court has been formally taken at
some time during the progress of the matter before the making of the order or
award;
(b) that the Court has exceeded its
jurisdiction in the matter;
jurisdiction in the matter;
(c) that the order or award has been
obtained by fraud;
obtained by fraud;
(d).
that any finding or decision of the Court in any matter is erroneous in point
of law; or
that any finding or decision of the Court in any matter is erroneous in point
of law; or
(e)
that some other specific illegality, not hereinbefore mentioned, and
substantially affecting the merits of the matter, has been committed in the
course of the proceedings.
that some other specific illegality, not hereinbefore mentioned, and
substantially affecting the merits of the matter, has been committed in the
course of the proceedings.
17. (2) On hearing of an appeal in any matter
brought before it under this Act, the Court of Appeal shall have power –
brought before it under this Act, the Court of Appeal shall have power –
(a) if it appears to the Court of Appeal
that a new hearing should be held, to set aside the order or award appealed
against and order that a new hearing be held; or
that a new hearing should be held, to set aside the order or award appealed
against and order that a new hearing be held; or
(b) to order a new hearing on any question
without interfering with the finding or decision upon any other question,and
the Court of Appeal may make such final or other order as the circumstances of
the matter may require.
without interfering with the finding or decision upon any other question,and
the Court of Appeal may make such final or other order as the circumstances of
the matter may require.
17. (3) The Court of Appeal may in any matter
brought on appeal before it, dismiss the appeal if it considers that no
substantial miscarriage of justice has actually occurred although it is of the
opinion that any point raised in the appeal might have been decided in favour
of the appellant.
brought on appeal before it, dismiss the appeal if it considers that no
substantial miscarriage of justice has actually occurred although it is of the
opinion that any point raised in the appeal might have been decided in favour
of the appellant.
17. (4) Subject to subsection (I), the hearing and
determination of any proceedings before the Court, and an order or award or any
finding or decision of the Court in any matter (including an order or award)-
determination of any proceedings before the Court, and an order or award or any
finding or decision of the Court in any matter (including an order or award)-
(a) shall not be challenged, appealed
against, reviewed, quashed or called in question in any court on any account
whatever; and
against, reviewed, quashed or called in question in any court on any account
whatever; and
(b) shall not be subject to prohibition,
mandamus or injunction in any court on any account whatever.
mandamus or injunction in any court on any account whatever.
Intervetion
by the Attorney-General.
by the Attorney-General.
18. (1) Where any dispute is before the Court, the
Attorney-General may, for the purpose of giving such assistance to the Court as
he may be able to provide with the consent of the Court, intervene, where it
appears to him that some question of public importance or affecting the public
interest or both has arisen and that it is fit and proper that the public
interest should be represented therein.
Attorney-General may, for the purpose of giving such assistance to the Court as
he may be able to provide with the consent of the Court, intervene, where it
appears to him that some question of public importance or affecting the public
interest or both has arisen and that it is fit and proper that the public
interest should be represented therein.
18. (2) No intervention by the Attorney-General
shall be taken to cause the Attorney-General to become a party to the dispute
before the Court, and accordingly no order or award may be made against the
Attorney-General either in the matter or, subject to section 10 (2), as to
costs.
shall be taken to cause the Attorney-General to become a party to the dispute
before the Court, and accordingly no order or award may be made against the
Attorney-General either in the matter or, subject to section 10 (2), as to
costs.
18. (3) Where the Attorney-General intervenes in a
dispute he may instruct such persons as he thinks fit to appear on his behalf.
dispute he may instruct such persons as he thinks fit to appear on his behalf.
We
submit that the above provisions from Antigua may be utilized as such confer
enormous powers to whittle out frivolous appeals, while not depriving
meritorious litigants from their appellate rights
submit that the above provisions from Antigua may be utilized as such confer
enormous powers to whittle out frivolous appeals, while not depriving
meritorious litigants from their appellate rights
VIII. THE INDUSTRIAL RELATIONS ACT, (1967) LAWS
OF MALAYSIA, Reprint
OF MALAYSIA, Reprint
Act 177, Incorporating
all amendments up to 1 March 2010.
all amendments up to 1 March 2010.
Here,
section 33 of the Malaysian Industrial Relations Act dealing with “Reference to
the High Court on a question of law” provides thus:
section 33 of the Malaysian Industrial Relations Act dealing with “Reference to
the High Court on a question of law” provides thus:
33a. (1) Where
the Court has made an award under subsection 30(1) it may, in its discretion,
on the application of any party to the proceedings in which the award was made,
refer to the High Court a question of law—
the Court has made an award under subsection 30(1) it may, in its discretion,
on the application of any party to the proceedings in which the award was made,
refer to the High Court a question of law—
(a)
which arose in the course of the proceedings;
which arose in the course of the proceedings;
(b)
the determination of which by the Court has affected the award;
the determination of which by the Court has affected the award;
(c) which, in
the opinion of the Court, is of sufficient importance to merit such reference;
and
the opinion of the Court, is of sufficient importance to merit such reference;
and
(d) the
determination of which by the Court raises, in the opinion of the Court,
sufficient doubt to merit such reference.
determination of which by the Court raises, in the opinion of the Court,
sufficient doubt to merit such reference.
(2) Where an
application under subsection (1) has been granted by the Court, compliance with
the award in respect of which the application has been granted shall be stayed
pending the disposal of the reference by the High Court, unless the Court
otherwise directs in respect of the whole or a part of the award.
application under subsection (1) has been granted by the Court, compliance with
the award in respect of which the application has been granted shall be stayed
pending the disposal of the reference by the High Court, unless the Court
otherwise directs in respect of the whole or a part of the award.
(3) An
application under this section shall be made within thirty days of the date on
which the award was made.
application under this section shall be made within thirty days of the date on
which the award was made.
(4) Where a
question has been referred to the High Court under this section, the Court
shall forward the record of its proceedings to the Registrar of the High Court
who shall thereupon appoint and notify to the parties to the proceedings the
time and place for its hearing.
question has been referred to the High Court under this section, the Court
shall forward the record of its proceedings to the Registrar of the High Court
who shall thereupon appoint and notify to the parties to the proceedings the
time and place for its hearing.
(5) The High
Court shall hear and determine the question referred to it under this section
as if the reference were an appeal to the High Court against the award of the
Court, and may, consequently, confirm, vary, substitute or quash the award, or
make such other order as it considers just or necessary.
Court shall hear and determine the question referred to it under this section
as if the reference were an appeal to the High Court against the award of the
Court, and may, consequently, confirm, vary, substitute or quash the award, or
make such other order as it considers just or necessary.
(6) A decision
of the High Court under subsection (5) shall have the same force and effect as
an award of the Court has under section 32, and may be enforced as if it were
an award of the Court.
of the High Court under subsection (5) shall have the same force and effect as
an award of the Court has under section 32, and may be enforced as if it were
an award of the Court.
(7) A decision
of the High Court under subsection (5) shall be final and conclusive, and no
such decision shall be challenged, appealed against, reviewed, quashed or
called in question in any other court or before any other authority, judicial
or otherwise, whatsoever.
of the High Court under subsection (5) shall be final and conclusive, and no
such decision shall be challenged, appealed against, reviewed, quashed or
called in question in any other court or before any other authority, judicial
or otherwise, whatsoever.
Award, decision or order of the Court to
be final and conclusive
be final and conclusive
33b. (1) Subject
to this Act and section 33a, an award, decision or order of the Court under
this Act (including the decision of the Court whether to grant or not to grant
an application under subsection 33a(1)) shall be final and conclusive, and
shall not be challenged, appealed against, reviewed, quashed or called in
question in any court.
to this Act and section 33a, an award, decision or order of the Court under
this Act (including the decision of the Court whether to grant or not to grant
an application under subsection 33a(1)) shall be final and conclusive, and
shall not be challenged, appealed against, reviewed, quashed or called in
question in any court.
(2) Subject to
section 33a, no award of the Court for the reinstatement or reemployment of a
workman shall be subject to any stay of proceedings by any court.
section 33a, no award of the Court for the reinstatement or reemployment of a
workman shall be subject to any stay of proceedings by any court.
Clearly,
the duty to refer to the Higher Court cases involving issues of question of law
(a) which arose in the course of the proceedings; (b) the determination of
which by the Court has affected the award; (c) which, in the opinion of the court,
is of sufficient importance to merit such reference; and (d) the determination
of which by the Court raises, in the opinion of the Court, sufficient doubt to
merit such reference—should be utilized by the NIC. And this is whether or not
such questions of law involve fundamental human rights, matters prescribed by
the Nigerian National Assembly or criminal matters
the duty to refer to the Higher Court cases involving issues of question of law
(a) which arose in the course of the proceedings; (b) the determination of
which by the Court has affected the award; (c) which, in the opinion of the court,
is of sufficient importance to merit such reference; and (d) the determination
of which by the Court raises, in the opinion of the Court, sufficient doubt to
merit such reference—should be utilized by the NIC. And this is whether or not
such questions of law involve fundamental human rights, matters prescribed by
the Nigerian National Assembly or criminal matters
IX. Conclusion
The
rights of appeal from the Nigerian NIC are illusory as they presently stand. A widened
and much broader statutory rights are required for the Nigerian legal system to
catch up with other nations and be able to compete favorably on the international
arena. The examples from Antigua and Malaysia are pointers to the way forward. We
hope that the Nigerian National Assembly would find these suggestions useful.
rights of appeal from the Nigerian NIC are illusory as they presently stand. A widened
and much broader statutory rights are required for the Nigerian legal system to
catch up with other nations and be able to compete favorably on the international
arena. The examples from Antigua and Malaysia are pointers to the way forward. We
hope that the Nigerian National Assembly would find these suggestions useful.
Dr. Olumide
Kolawole Obayemi, LL.M. (Alberta Canada); LL.M. in Taxation Law; SJD in
International Legal Studies, is of the Bars of the Federal Republic of Nigeria
and State of California.
Kolawole Obayemi, LL.M. (Alberta Canada); LL.M. in Taxation Law; SJD in
International Legal Studies, is of the Bars of the Federal Republic of Nigeria
and State of California.