A BRIEF VIEW INTO THE DECISION ON THE MANDATORY REQUIREMENT OF LEAVE TO APPEAL DECISIONS OF THE NATIONAL INDUSTRIAL COURT TO THE COURT OF APPEAL AS PROVIDED FOR IN SECTIONS 240, AND 243 (2)(3) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS ALTERED)

1          The Court of Appeal sitting in Owerri, Nigeria on the 30^th October 2020 struck out an appeal between Governor of Rivers State of Nigeria and Attorney General Rivers State vs. Ihua Friday & 6 Ors. against the judgement of the National Industrial Court. The Court relying heavily on the Supreme Court decision in SKYE BANK PLC vs IWU (2017) LPELR – 42595 (SC), (2017)16 NWLR (pt. 1590) 24 held that the Appellants (Governor of Rivers State of Nigeria and Attorney General Rivers State)  failed to obtain the leave of the Court of Appeal to appeal the judgement of the National Industrial Court as provided for in section 240, 243 (2) and (3) of the 1999 Constitution (As Altered). The Appeal Court finally held that:

Thus, an aggrieved party in a labour matter at the National Industrial Court, can approach this court (Court of Appeal) for leave to appeal, on any question outside fundamental rights matters, based on the grace extended by the Skye Bank Plc v. Iwu Plc.

2.         The Court of Appeal relied its decision fundamentally on the Supreme Court judgement where the Apex Court held in Skye Bank Plc vs Iwu that

“I do not think the constitution intends that the first instance decision of the National Industrial Court shall be final and conclusive. The promulgation of section 240 of the Constitution makes the point more poignant, particularly when it is read together with section 36(2)(b) of the same Constitution. My firm view on sections 240, 243(2)(3) and 36(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999, is that:

i.                From the decision of the National Industrial Court there is a right of appeal to the Court of Appeal;

ii.               Appeal is of right to the Court of Appeal from any decision of the National Industrial Court on any question of fundamental right under Chapter IV of the Constitution.

ii.               Appeal is not as of right, but upon leave of the Court of Appeal, from any decision of the National Industrial Court other than an appeal on any fundamental rights question,” (Italics mine).

3.         It is therefore a constitutional requirement that aside an appeal founded on fundamental rights enforcement commenced via the procedure provided for under the Fundamental Rights Enforcement Rules, no appeal can be initiated without first obtaining the leave of the Court of Appeal. Section 243 of the 1999 Constitution (As Altered) provided that;

(2) 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.

(3) 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.

4.         The Supreme Court in the words of the Appeal Court graciously extended to litigants right to appellate review of their cases/ judgements in Skye Bank Plc vs Iwu, noting that the appellate power of the Court of Appeal was never abrogated by s.240 and 243 (2) and (3)  of the 1999 Constitution. The old misconception or misapplication that the decisions of the National Industrial Court cannot be appealed against was jettisoned by the judgement in Skye Bank Plc vs Iwu and re-echoed in page 964 in Governor of Rivers State and A-G Rivers State vs Ihua Friday. The Court of Appeal surmised conclusively thus;

But it is a clear misconception or misrepresentation of that mercy extended by the supreme Court decision, in my view for a party to file an appeal in this court directly against a decision of the National Industrial Court, not founded on fundamental rights matters, without seeking and obtaining leave of this court (the court of appeal), claiming that an issue of fair hearing was raised in the case appealed against, or that the grounds of the appeal raised or intends to raise (at the Court of appeal) questions of fundamental right, as argued by the appellant/applicants in this application.

Raising a ground of appeal or issue on question of fair hearing or fundamental rights by appellants, in my view, is quite a different thing from the suit, at the lower court, being one of fundamental rights, under Chapter IV of the Constitution. While the former has to do with an issue of fair hearing or fundamental right, which can arise in any appeal process, the latter has to do with the entire suit, being one fought or founded on the Fundamental Rights Enforcement Procedure Rules, 2009, in which the principal/primary claim was/is a fundamental rights claim, not ancillary.

5          Since the decision in Skye Bank Plc vs Iwu, appeals from the National Industrial Court have flooded the docket of the Court of Appeal in all its divisions. That gave life to the ratio expressed by the Supreme Court that;

Any provision of a statute that makes “the determination of the administrative authority final and conclusive” violates section 36(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999.

Litigants have a right for appellate consideration of their grievances and same being a constitutional right was well safeguarded in the Supreme Court decision in Skye Bank Plc vs Iwu. The Apex Court opined that;

Suffice it to say also that an appeal is a continuation of its litigation process. It is akin to the right of access to Court which is constitutionally guaranteed under Section 36 of the Constitution. In other words, the right of access to Court does not end with access to the trial Court only. The right so guaranteed is substantive and continues right through to the appeal process. The right is not dependent on whether the appeal is of right or with leave. See also the case of Local Government Service Commission, Ekiti State & Anor v. Mr. M. A. Jegede (2013) LPELR-21131 at 20 wherein the Lower Court expressed the following view and said:- “Right of access to Courts is basic constitutional and fundamental. An appeal either as of right or with leave is a review of the trial Court’s decision by an appellate Court. I am thus of the firm viewpoint that a dispute between an employer and employee is an ordinary civil proceeding and this qualifies in a similar manner for the same consideration or treatment with regard to the exercise of appellate jurisdiction of the Court of Appeal from decisions of subordinate Courts. I am thus of the mindset that the exercisable jurisdiction of this Court over decisions of the National Industrial Court as conferred and or vested by the Constitution cannot and should not be circumscribed or limited to questions of fundamental rights alone. It is thus clear and without prevarication whatsoever, that Subsection (4) of Section 243 of the 1999 Constitution as amended, gives the right of appeal to an aggrieved person in any civil matter arising from decisions of the National Industrial Court in the exercise of its civil jurisdiction.”  Per OGUNBIYI, J.S.C in SKYE BANK v. IWU (2017) LPELR-42595(SC) (Pp. 116-118 paras. D).

Therefore, the Court of Appeal was right is striking out the appeal brought by Governor of Rivers State of Nigeria and Attorney General Rivers State as against the decision of the National Industrial Court.

 

 

Download: A brief view into the decision on the mandatory requirement of leave to appeal decisions of the national industrial court to the court of appeal as provided for in sections 240, and 243 (2)(3) of the constitution of the Federal Republic of Nigeria 1999 (as altered).