Nigeria: National Industrial Court: The Cart Before The Court?

Last Updated: 27 June 2016
Article by Folabi Kuti

The establishment Act created it as a specialized tribunal with exclusive adjudicating power on matters relating to or connected with labour and industrial relations laws, (Section 7 (1) of the National Industrial Court Act 2006).

To be sure, the propriety of that exclusive enacting clause in the face of seeming inconsistency with the constitutional provision situating such exercise of judicial power within superior courts of record listed in the nation's organic law, soon became a subject of disputation in legal circles. And, as easily discernible from the unanimity in a few reported cases, the exclusive jurisdiction supposedly conferred on the National Industrial Court (NIC) by legislation needed an insertion in the nation's organic law to make good law. Reference: National Union of Electricity Employees v Bureau of Public Enterprise (2010) LPELR-SC.62/2004.

The foregoing paved way for the legislative intervention in the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010.

Regrettably, this legislative intervention might have imported, perhaps inadvertently, an incongruous provision in the enabling statute and, the sad part of it, elevated same into a constitutional provision. This being that the NIC is a final court! Well, except in very limited (and, given the prescribed jurisdiction of the court, almost impossible) circumstances. It is pertinent to examine the relevant provision.

In almost an exact lettering as Section 9(1) & (2) of the NIC Act, Section 243(2) and (3) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 provide that appeal "shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights". Further 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". The latter category (of appeals), it further says, shall be with the leave of the Court of Appeal. Finally, it provides that the NIC is a final court in respect of any appeal arising from any civil jurisdiction of the National Industrial Court.

There is, it would appear, something to cheer about. Given our not-so-peculiar circumstances, it is worth articulating that making the NIC a final court would check the incidence of long gestation resolution of otherwise simple labour and industrial disputes. It is a well worn fact that the present situation of (unrestricted) access (of prospective appellant(s) to the appellate court to lodge notice(s) of appeal against every decision coming from the High Court and the attendant grim prospects of having such matters drag indeterminably from the intermediate appellate court to the nation's apex court within a horrendous timescale of anything between 5 to 10 years, does not augur well for the administration of civil justice in the country. It does make sense (and, good law) to check the unfortunate incidence by endowing the employment dispute resolution tribunal with ultimate power to hand down judgments, once-and-for all, and the Justices (of NIC) also able to echo the famous sentiments of the much revered Justice Oputa when he declared of the Supreme Court: "We are final not because we are infallible, rather we are infallible because we are final."

But, that is only a side to the coin.

It is, indisputably, a necessary feature of every system of adversarial administration of justice that errors in the judicial process should be capable of being corrected, reversed or varied at a higher level.

Admittedly, such errors may still be made when a full complement of the apex court sits on a matter. Little wonder then that the same Supreme Court, still speaking through Justice Oputa, admitted that: "Justices of this court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do incalculable harm through its mistakes...This court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error" (see the case of Adegoke Motors Ltd. v Adesanya, (1989) 3 NWLR (Pt 109) 250)

The point being made is that seen against the backdrop of even a higher or the apex court being susceptible to legal errors, it is, dangerous to have a single judge (or, even 3 judges) of a superior court of record interpret with finality, the position of the labour laws vis-à-vis peculiar fact situations presented by each case before the court. This is moreso where a provision of the enabling statute confers the court with wide latitude of discretionary power to "regulate its procedure and proceedings as it thinks fit". Still on this, even as the NIC is a superior court of record, it has the power to depart from applying the provisions of the Evidence Act to proceedings before it; the test/guide being the generic use of 'interest of justice' where it so decides. It states the obvious, in our adversarial system, that a litigant ought to have an unrestricted right of appeal/review to serve as a check on the exercise of judicial power in particular case-situation(s) where the litigant is/feels aggrieved.

There is a further argument that despite the seeming over-bearing ambit of the NIC's power, the registry of the Court of Appeal is not entirely shut to litigants from the labour courts, the compelling argument being that there is a window for appeals, howbeit on fundamental rights issues. This commentator is however of the view that the present situation of the window being a small peep-through would only work an avoidable strain on the dockets of the Court of Appeal as appeals from judgment of the NIC on errors of law, and/or fact would still be tweaked, couched and drafted as errors of fundamental rights, calling in aid the inexhaustible instances of breach of rights. Put simply, appeals would and as appears the position today, still be on the increase. The spiraling effect is an equal upsurge in the objections as to the merit of such exercise of right of appeal. It is pertinent to refer in this connection to the unreported decision of the Court of Appeal, Lagos Division in appeal with docket details CA/L/697/08 : Nigerian Westminster Dredging & Marine Ltd v John Ovoh. Here, the Court of Appeal restated the position of the law in Section 9(1) & (2) of the NIC Act and Section 243(2) and (3) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 on the limited instance of right of appeal from a decision of the NIC. Of particular note is that the argument of the appeal falling within the prescribed ambit of fundamental rights, specifically breach of right to fair hearing was put forward by the Appellant. The Court of Appeal however rejected the contention. Okoro JCA, delivering the judgment of the Court, observed thus: "... 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."

The Court thereafter considered the complaint of fair hearing, and came to the conclusion that there was no breach of the fundamental right of fair hearing in the instant case.

One further point to note is that in any event, court actions seeking to enforce fundamental rights of citizens are readily accommodated at the traditional fora for such; the Federal High Court and the High Court. As such, rarely would there be genuine cases of an appeal from NIC decisions, on question of fundamental rights.

The incongruity of the present situation has already been identified. But still, the storm gathers.

We can only delay the passage of the law envisaged in Section 243(2) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act to allow for 'appeal with leave of court' at our own peril. This commentator is of the view that the National Assembly can still streamline the appellate system by limiting a general right of appeal to the intermediate appellate court in the two tier system of appeal. Further, while not restricting right to go on appeal against a judgment of the NIC, interlocutory appeals can be restricted to be taken at the end of the substantive matter. And yes, there is nothing unconstitutional about it if the provision of the Constitution is further 'altered' (a legislative jargon which, by the way, is not altogether unhelpful) to say.

Unless these issues are addressed, the attendant effect on the already clogged dockets of the Court of Appeal can be better imagined.

A further point to note, almost in passing, is that Section 240 of the Constitution provides for right of appeal from from the Federal High Court, National Industrial Court, the High Court of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State to the Court of Appeal.

The National Industrial Court being a constitutionally prescribed superior court of record with co-ordinate status with the Federal High Court and other enumerated courts in Section 240, the arguments commend itself that the intention is to have unrestricted right of appeals from the NIC to the Court of Appeal. Yes, the converse is equally potent. The literal interpretation brooks of no ambiguity: the right of appeal in Section 243 relates solely to appeals touching on question(s) of fundamental rights.

Is the Court infallible? The jury is still out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Strachan Partners
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Strachan Partners
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions