I refer to the article by Folabi Kuti, Esq., published in the The Guardian of Tuesday,November 12,2013 at page 80 under the title “Is National Industrial Court of Nigeria infallible because it is final” and dare say that I am in agreement with the learned writer that the National Industrial Court enjoys finality of decisions in all but only two areas, to wit: First, the National Industrial Court is not a final court on questions of fundamental rights as contained in Chapter IV of the I999 Constitution (as amended) such as on questions touching on the right to form, join or belong to a trade union as enshrined in Section 40 of the 1999 Constitution. Second, 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. It is pertinent to observe that sections 243(2) –(4) and 254C (4)-(5) of the 1999 Constitution(as amended) by the Third Alteration Act,2010 provides specifically that appeals must be as of right in both cases where appeals can be launched from the decisions of the National Industrial Court to the Court of Appeal with the added power to the NIC to apply the provisions of the Criminal Code, Penal Code, Criminal Procedure Act, Criminal Procedure Code and Evidence Act when it exercises its criminal jurisdiction. The reason for the conclusion that the National Industrial Court is a final court in all but only two areas is simple-any right of appeal from the National Industrial Court to the Court of Appeal sought to be exercised by any aggrieved party outside issues of fundamental rights and criminal causes and matters must be a right conferred by an Act of the National Assembly and in a manner prescribed by such an Act but no appeal outside the two mentioned areas can lie to the Court of Appeal without the leave of that court. The Act of the National Assembly that has prescribed a right of appeal from the decisions of the National Industrial Court to the Court of Appeal is the National Industrial Court Act,2006.That Act in section 9 does not prescribe a right of appeal outside issues of fundamental rights contained in Chapter IV of the 1999 Constitution(as amended).The essence is that there is presently in Nigeria no Act of the National Assembly that has prescribed a right of appeal to the Court of Appeal from the decisions of the National Industrial Court other than as prescribed in 1999 Constitution(as amended) by the Third Alteration Act,2010 and the National Industrial Court Act,2006.Until such an Act is enacted, the National Industrial Court shall have the final say on several key areas of Labour jurisprudence. However, I must disagree with the assertion of the learned writer that section 240 of the I999 Constitution(as amended)commends itself to the argument that the intention of the lawmakers is to enable an unrestricted right of appeals from the NIC to the Court of Appeal. The reason is simple. The right of appeals from the NIC to the Court of Appeal as provided in section 240 has been circumscribed by the Constitution itself in sections 243(2) –(4) and 254C (4)-(5) of the 1999 Constitution(as amended). The Constitution must be read as a whole. As the NIC is a special court of record, several reasons can be advanced for the draconian provision of section 243(2) –(4) of the Constitution. The first point to note is that there must be an end to litigation. Special procedures already exist under the Trade Disputes Act for Labour matters to snake through intervention by the Ministry of Labour and Productivity before reference is made to the Industrial Arbitration Tribunal and a further reference is made to the National Industrial Court in the form of appeals. Even when matters have been decided by the Industrial Arbitration Tribunal, the Honourable Minister of Labour is empowered under section 13 of the Trade Disputes Act to refer the award back to the Tribunal for reconsideration without a bar on the right of appeal from any further award to the National Industrial Court. Second, it may be an attempt by the lawmakers to abort delay tactics by elements within the trade union movement who may use violence or superior tactics to ascend to power and then use the instrumentality of the law to sustain their hold in office. The right to occupy or stay in office is not a fundamental right for which an appeal as of right is available. A party who intends to play mischief can deploy preliminary objections and where that fails, a frivolous appeal to ensure the exhaustion of the tenure of office of the duly elected executives to perpetuate himself in power. It is to persons such as those that the provisions of section 243(2) –(4) of the Constitution is directed. It is my view that the said provision should be tried for a few more years before an amendment is contemplated but any such amendment should retain the proviso to the section to allow for the weeding out of frivolous appeals. This is because at the stage of granting leave before an appeal can be allowed to proceed,the court is enabled to scrutinize the notice and grounds of appeal to determine its merit.In Imegwu v. Okolocha (2013) 9 NWLR PT 1359 at pg 347 at 372 para B, the Supreme Court of Nigeria per Ariwoola,J.S.C summarized what an appellate court does at the leave stage when it stated as follows:“I have also examined the fifteen grounds of appeal proposed for the prosecution of the appeal when leave is granted to the applicant to appeal. I am of the firm view that, in the circumstances of the peculiarity of this case, the said grounds of appeal cannot be said to show good cause why the appeal should be heard.
Posted on: Fri, 22 Nov 2013 22:53:47 +0000
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