Mar 25, 2014

RIGHTS OF APPEAL FROM THE NIGERIAN NATIONAL INDUSTRIAL COURT

ENLARGEMENT OF RIGHTS OF APPEAL FROM THE DECISIONS OF THE NIGERIAN NATIONAL INDUSTRIAL COURT


By Dr. Olumide 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.

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:


(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;
    (b) that the NIC has exceeded its jurisdiction in the matter;
    (c) that the order or award has been obtained by fraud;
(d). that any 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.

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.

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.

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.

II.        Historical Background of the Nigerian 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”).

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.

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”).

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 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.

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.
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.

III.       The Advent of the Nigeria Military 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.

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).

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.

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.

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.

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.

From 1992 until 1999, 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.

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.

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:

“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.”

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:

"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."

Osunbo 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.

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:

"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."

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.

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.

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.

V.        The new Constitution of the Federal Republic 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:

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.

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.

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.

We 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.

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.

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:

“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.”

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.

From 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.

Again, 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.

Such cases are few.

This 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

Let 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. (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 -

(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;

    (b) that the Court has exceeded its jurisdiction in the matter;

    (c) that the order or award has been obtained by fraud;

(d). 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.

17. (2)         On hearing of an appeal in any matter 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

    (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.

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.

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)-

    (a) shall not be challenged, appealed 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.

Intervetion 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.

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.

18. (3)     Where the Attorney-General intervenes in a 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

VIII.    THE INDUSTRIAL RELATIONS ACT, (1967) LAWS OF MALAYSIA, Reprint
Act 177, Incorporating 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:

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—
(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.
(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.
(3) An 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.
(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.
(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.
(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.

Award, decision or order of the Court to 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.
(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.

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

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.

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.
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1 comment:

  1. in Local Government Service Commission Ekiti State v Mr M K Bamisaye(2013) LPELR- 20407, Paragraph E-F, Page 17. the Court of appeal provided that there is nothing both in the Act or Constitution that provides that the National Industrial Court shall be a final court in respect of any matter before it. The court further stated that there is no provision which excludes a right of appeal over other decisions of the NIC with leave. It is though conceded that there is another conflicting decision in Lagos Sharaton Hotel & Towers v Hotel and Personal Services Senior Staff Association (2014) LPELR-23340(CA)
    which states that the right of appeal against NIC decisions lies of right only if it relates to fundamental rights and criminal matters. the position of the law is thus still not clear on the issue, but it is rather strange that an industrial court will be a final court as that is not the case in other climes. It ought not to be so and we hope the SC can make a final pronouncement on the matter.

    ReplyDelete

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