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.
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