SKYE BANK V. IWU (2017) LPELR-42595 (SC): ANOTHER PIECE OF JUDICIAL LEGISLATION.

Sometime in 2017, the Supreme Court settled the question of whether appeals can lie against the decisions of the National Industrial Court over civil matters other than fundamental human rights actions. This question was answered by the Court in the affirmative after it considered the relevant provisions of the constitution.

For ease of reference, I shall reproduce section 240 and section 243(2),(3), (4) of the Constitution.

S.240: Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court Martial or other tribunals as may be prescribed by an Act of the National Assembly.

S.243(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.
S. 243(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 prescribed that an appeal shall be from the decision of the National Industrial Court to the Court of Appeal such appeal shall be with the leave of the Court of Appeal.

S. 243(4): 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.

Briefly, the facts which gave rise to the suit are as follows:

The respondent in this suit brought an action against the appellant before the National Industrial Court for wrongful termination of employment. The appellant (Mainstream bank at the time) filed a preliminary objection challenging the jurisdiction of the court to entertain the said matter. The objection was dismissed by the Court. The appellant appealed against the ruling. At the Court of Appeal, the respondent (Iwu) raised his own objection that the Court of Appeal lacked jurisdiction to hear the appeal on the ground that the decisions of the National Industrial Court were appealable only on issues of fundamental human rights. An application was consequently made by the appellant for the case to be stated to the Supreme Court since there were already two sets of conflicting decisions of the Court of Appeal on whether it (the Court of Appeal) had jurisdiction over appeals against all decisions of the National Industrial Court. The application was granted by the Court of Appeal. This gave rise to the instant suit.

As much as the decision in Skye bank’s case looks like a giant stride in our constitutional jurisprudence, I find it rather difficult to accept the conclusions reached therein as flowing from the letters of the laws sought to be interpreted. I can best qualify the decision as another piece of judicial legislation!

First, I do not seem to agree that section 243(3) of the constitution contemplates a procedure for an appeal as held by the majority decision of the Supreme Court especially if it is read alongside section 243(2). The little confusion in that section was ultimately settled by the proviso to section 243(3) which states clearly 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 leave. Had section 243(3) contemplated a procedure as held by the court, then the proviso to section 243(3) would be superfluous. I don’t think so! I tend to agree with the argument of the respondent’s counsel that the section talked about substantive matters (appeal) which can be provided for by an Act of the National Assembly.

Important to note is that section 243 did not limit appealable civil matters from the National Industrial Court to only fundamental Human Rights issues. Section 243(3) only made the exercise of such right contingent upon the enactment of an Act by the National Assembly which would prescribe such matters. Such matters, in addition, would be with the leave of the court of appeal.

The Supreme Court contended that the above interpretation would run afoul the provision of section 240 which generally vested jurisdiction on the court of appeal over matters from the National Industrial Court. Unfortunately, (or fortunately, depending on how one sees it) both provisions are constitutional provisions such that none can override the other as would be the case were it to be an ordinary Act of the National Assembly. But then, I would have thought that the Supreme Court, among all the principles and canons of interpretation employed in the dissection of these provisions, would have also considered that section 240 is general in outlook while 243(3) is specific. It is no surprise, anyway, since the majority decision of the Supreme Court, ab initio, did not accept the interpretation offered by the Respondent which I seem to align myself with. Be that as it may, an interesting point about the almighty section 240 which his lordships kept mute about is that the opening line of that section contains an inherent limitation as it made the entire section subject to the provisions of the constitution. (His lordship, C. C. Nweze JSC actually placed that line in quotation when he cited the provision. Why he chose to remain silent is somehow a mystery to me!) I should believe that section 243(3) was not excepted from the provisions that should override section 240 in a time like this!

The Supreme Court made yet another point that section 243(4) states that 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. The contention of the court is that the use of the word “any” twice in the said provision suggests that the framers of the constitution intended the Court of Appeal to have appellate jurisdiction in all civil matters from the National Industrial Court.
I have earlier stated that section 243(3) did not make the National Industrial Court, the final court in every civil matter other than fundamental Human Rights action. It only makes appeals on other matters contingent upon the prescriptions by an Act of the National Assembly. Such appeal, however, must be with the leave of the Court of Appeal.

Another argument which was strenuously emphasised by his lordship, C. C. Nweze JSC is the legislative intent of the third alteration Act which according to him, can be gleaned from the long title. The long title of the Act reads thus, An Act to alter the constitution of the Federal Republic of Nigeria for the establishment of the National Industrial Court under the Constitution”. His lordship concluded that, indubitably, the intention of the framers of the law was to grant the National Industrial Court a constitutional background.
This view by his lordship, with the greatest respect, is such a very narrow approach to constitutional interpretation which is often frowned at by the Supreme Court even in the instant case. Part of the constitutionality of the establishment of the National Industrial Court is the spelling out in clear terms, the various jurisdictions of the Court. If these parts were left to the Constitutive Act of the Court alone, perhaps, by now, the Supreme Court would have been flooded with questions on the constitutionality of certain provisions of the National Industrial Court Act. My point is that, “establishment of the National Industrial Court under the constitution” as provided in the long title of the Act also extends to determination of jurisdictions which includes the nature of appeals that would lie from the National Industrial Court as provided in section 243. We can therefore, turn to the said section for guidance!

In conclusion, part of the problems we encounter in constitutional interpretation is caused by draftsman inelegance. This, certainly, is one!

Godstime C. Ejide Esq.

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