Judicial activism, the solution to flawed legislation: The appellate jurisdiction of the National Industrial Court in view

Over the years, Nigerian courts have as a matter of course applied the Literal Rule in interpreting statutes, whether of state legislatures or the National Assembly, even in situations where literal interpretation will result in miscarriage of justice. Instances where the courts have applied a purposive or progressive interpretation are rare and often controversial, like the unprecedented Supreme Court decision in the case of Hon. Rotimi Amaechi v. INEC.

These Nigerian courts make it a duty to interpret the text of a statute even where it is obvious that litigants actually call upon them to interpret the silence of the legislature. This article deals with the latter situation, as illustrated by the controversy created by the 3rd amendment to the current Constitution of the Federal Republic of Nigeria (“The Constitution”) and the National Industrial Court Act, over the appellate jurisdiction of the National Industrial Court (“NIC”).

The NIC was established by the Trade Disputes Decree No. 7 of 1976, to exercise jurisdiction in civil matters relating to labour, employment and industrial relations. Prior to the establishment of the NIC, jurisdiction over the above areas was vested in the Federal High Court and State High Courts. Unsurprisingly, the establishment of the NIC led to several objections to its jurisdiction on different grounds, one of which was that despite being termed a superior court of record by its establishing statute, it did not qualify as one having not been so listed in Section 6 of the Constitution.

The issues regarding the jurisdiction of the NIC were only recently settled following the 3rd Amendment to the Constitution. The NIC was listed as a superior court of record under Section 6 of the Amended Constitution and its composition, powers and jurisdiction were provided for under Section 254A-D.

The efforts of the National Assembly in amending the Constitution to accommodate the NIC are hugely commendable. However, the legislators in clarifying the status of the NIC failed to properly review the specific provisions of the NIC Act from which the said constitutional amendments were lifted, and thus perpetuated a controversy that continues to plague appeals from the NIC.

In Section 243(2-3) of the Constitution, it is provided that appeals shall lie from the decision of the NIC as of right to the Court of Appeal on questions of fundamental human rights; and shall only lie with leave from the NIC to the Court of Appeal where prescribed by an Act of the National Assembly. Considering that at the time of writing this piece, no Act of the National Assembly exists which prescribes such appeal with leave from the decision of the NIC, this provision implies that on issues other than fundamental human rights, the NIC is both a court of first instance and a final court.

The Court of Appeal has been called upon on different occasions to interpret the above provision of the Constitution vis-à-vis the NIC Act and their decisions have varied and further compounded the issue. Most appellate court justices have been reluctant to deviate from the express wordings of the Constitution, despite the fact that a literal application of the above provisions will work grave hardship on litigants who are unable to appeal NIC decisions that are not on fundamental human rights grounds.

A few cases will serve to illustrate the problem. In Coca-Cola (Nig.) Ltd. v. Akinsanya (2013) 8 NWLR (Pt. 1386) Pg. 255, the Court of Appeal, Lagos Division failed to reach a unanimous interpretation of Section 243(2) of the Constitution. Justice Lokulo-Sodipe, who read the lead judgment, adopted the Literal Rule when holding obiter that Section 243(2) of the amended Constitution, though unfair, ought to be given its ordinary meaning. It is the duty of judges, he said, to interpret laws and not to make them. He thus held that only appeals on fundamental human rights issues can lie from the NIC. Justice Saulawa in his dissenting judgment adopted the Golden Rule of interpretation, holding that where an interpretation of a statute would result in defeating the object of the statute, the court should not lend its weight thereto. He thus held that appeals ought to lie from the NIC on every issue as the NIC cannot be allowed to be a final court.

While the reasoning of Justice Lokulo-Sodipe seeks to preserve the sacrosanct nature of the Constitution, Justice Saulawa’s position is more commendable because allowing an unjust provision of the Constitution to thrive in its injustice will lead to an infringement of litigants’ rights to fair hearing, which is also constitutionally protected under Section 36 of the Constitution.

In the case of Local Government Services Comm. Of Ekiti State v. Mr. S. K. Bamisaye (2013) LPELR – 20409 (C.A), the Justices of the Court of Appeal, Akure Division, unanimously took a bold step by allowing an appeal from the NIC on grounds other than fundamental human rights. The court premised its decision on the absence of an express provision in either the Constitution or NIC Act stipulating that the NIC shall be a final court in any matter. The learned Justices held that under no circumstance should the decision of the NIC be final as no court can be a final court by implication.

The reasoning of the Justices in the Bamisaye case is both sound and instructive as the Constitution expressly makes the Court of Appeal the final court on civil appeals from the NIC. However, the decision of these justices does not settle the issue because, while persuasive, a decision of one panel of the Court of Appeal is generally not binding on another panel of the same court.

Other divisions of the Court of Appeal have expressly refused to go beyond the literal meaning of the Constitution on this issue and have struck out appeals from the NIC for being premised on grounds other than on fundamental human rights.

Yet a litigant’s right of appeal is a fundamental aspect of the remedial promises of our judicial system. In this regard, the pronouncement of Justice Ogunbiyi of the Nigerian Supreme Court in the unrelated case of Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) Pg. 264 at 340 – 341, Para. H – A is instructive. The learned jurist held thus:

“It is the glory, happiness and pride of Nigeria’s various Constitutions that to prevent any injustice, no man is to be concluded by the first judgment, but that if he apprehends himself to be aggrieved, he has another court to which he can resort to for relief…

…The doors of the appellate courts have to be kept open if rights and freedom are to be preserved.”

The primary medium for a final resolution of the issues relating to appeals with leave from the NIC would be an amendment to the NIC Act, thus providing for an unfettered right of appeal with leave from the decisions of the NIC. This amendment will invariably satisfy the Constitutional requirement for appeals with leave where prescribed by an Act of the National Assembly.

However, it is noteworthy that the procedure for the passage of a bill into law in Nigeria is onerous and time consuming as such bill must first be passed by both chambers of the National Assembly before presentation to the President for his assent. There is thus a need for a quicker solution in the interest of preserving litigants’ rights of appeal.

This quicker solution can best be realized in the courts before which this issue arises consistently – The Court of Appeal. The attitude of the Court of Appeal and the consistency of their decisions in allowing appeals with leave from the decisions of the NIC can effectively rectify the injustice occasioned by the above literal provisions of the Consitution and the NIC Act.

The Courts remain the last hope of the common man as the National Assembly consistently displays an appalling attitude to their primary responsibility of lawmaking. The 7th National Assembly which wound up on 4th June, 2015 is reputed to have hurriedly passed 46 bills in ten minutes on 3rd June 2015, the day before the winding up of its tenure. This lack of an attention to detail by the legislature is the reason why the Courts need to strive to uphold the tenets of justice rather than be enslaved by the unjust letters of inadequately considered legislations. The courts in Nigeria are therefore called upon to step up in activism to fill the lacunae created by statutes, like the instant one over appeals with leave from the NIC.

Munachiso Michael is an Abuja based lawyer practicing under the Dispute Resolution, Corporate Commercial and Legislative Oversight & Related Government Activities practice groups of the law firm of Streamsowers & Kohn