The Supreme Court will on June 30, 2017, decide whether the decisions of National Industrial Court (NIC) are generally appeallable to the Court of Appeal or are restricted to only appeals on questions of fundamental rights as contained in Chapter IV of the 1999 Constitution (as amended).
A full panel of eminent jurists of the apex court presided over by Justice Mary Peter-Odili last week heard arguments from parties who contend that the decisions of NIC are generally appealable on one hand and parties who contend to the contrary on the other hand in consolidated appeals that came by way of reference under section 295 of the 1999 Constitution.
The Lagos Division of the Court of Appeal had in 2014 referred to the apex court the appeal in Mainstreet Bank Ltd (now Skye Bank Limited) vs Victor Anaemen Iwu seeking a resolution of the substantial question of law on finality of decisions of NIC.
The Skye Bank appeal was consolidated with another related appeal – Coca-Cola Nigeria Limited vs Mrs. Titilayo Akinsanya in which the Court of Appeal Lagos Division had in 2013 held that there is no general right of appeal for a litigant against the decision of the NICN except as limited in Section 243(2)-(4) of the 1999 Constitution (as amended)
At the resumed hearing of the appeals, the court hall was filled to the brim with lawyers, litigants and other interested parties including some judges of the National Industrial Court who came to observe the court’s proceedings.
The issue of ‘finality’ of the decisions of NIC has recently generated a lot of controversy in the legal profession; among litigants, employees and employers of labour and the academia resulting in conflicting decisions by the Court of Appeal in various divisions.
Sources at various registries of the Court of Appeal across the country indicated that there are not less than 100 appeals now put on hold awaiting the outcome of the decision of the Supreme Court on the vexed issue.
The conflicting decisions of the Court of Appeal arose mainly in their interpretation of Sections 240 and 243 (1-4) of the 1999 Constitution (as amended) by the 3rd Alteration Act of 2010. The 3rd Alteration had promoted the National Industrial Court (NIC) from the status of an inferior court to a superior court of records having the same powers like a High Court. Section 240 of the Constitution as amended listed the NIC as one of the courts from which an appeal can lie from their decisions to the Court of Appeal.
However, section 243(2) granted a right of appeal to litigants in matters relating to fundamental rights connected to the jurisdiction of NIC as of right but section 243(3) provided that “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 … while Section 243(4) then provided that “…the decisions of the Court of Appeal on appeals on the civil jurisdiction of the National Industrial Court shall be final.”
On February 13 and 15, 2013, the Court of Appeal sitting at Ado-Ekiti Division decided four cases viz: Local Government Service Commission, Ekiti State and Anor. Vs Mr. M. A. Jegede (2013) Lpelr-21131; Local Government Service Commission, Ekiti State and Anor. Vs Mr. M. K. Bamisaye (2013) Lpelr-20407; Local Government Service Commission, Ekiti State and Anor. Vs Francis Oluyemi Olamiju (2013) Lpelr-20409, and Local Government Service Commission, Ekiti State and Anor. Vs Mr. G. O. Asubiojo (2013) Lpelr-20403, that litigants have right of appeal as of right in matters relating to fundamental rights as granted by section 243(2) of the Constitution and also that litigants can appeal with leave of the Court of Appeal on all other matters.
In other words, the Appeal Court held that the NIC is not a final court and that the decisions of the NIC are appealable to the Court of Appeal.
However, later in the same year, the Lagos Division of the Court of Appeal surprisingly, in the ‘Coca Cola case’ -Coco-Cola (Nig) Limited vs. Akinsanya (2013) 18 NWLR (pt. 1386) 225 – delivered on July 4, 2013, held that until the National Assembly passes a law granting litigants right of appeal with leave, that the right does not exist.
In other words, it held that the right of appeal from decisions of the NIC to the Court of Appeal is limited to decisions of the NIC relating to fundamental rights.
This was the confusing state of the law until Dr. Charles Mekwunye, a Lagos-based lawyer, appearing for Skye Bank, lodged an appeal at the Court of Appeal and thereafter applied for a reference to the Supreme Court, seeking the interpretation of the said sections of the constitution.
Mekwunye when contacted, declined comments, saying that he has done his bit as a servant of the legal profession and has left the rest for the highest court in the land to decide.
Fees Ekeh, the respondent’s counsel did not pick or return calls made to him at the time of going to press.