APPEALS IN LABOUR AND INDUSTRIAL DISPUTES: PRACTICE AND PROCEDURE - PowerPoint Presentation

1. APPEALS IN LABOUR AND INDUSTRIAL DISPUTES: PRACTICE AND PROCEDUREPresented at the Refresher Course for Judges and Kadis (21-25 March 2022) at the NJI, AbujaBy Adejoke Oyewunmi PhDProfessor & Head, Department of Commercial & Industrial LawFaculty of Law, University of Lagos

2. Paper Outline and Discussion Points The Constitution of the Federal Republic of Nigeria, 1999, in line with global best practices, sets out the hierarchy of courts and provides for the framework for appeals from the decision of lower by higher courts. In the case of the exercise of appellate jurisdiction in respect of labour and industrial disputes however, there have been some recent developments regarding the nature, extent and scope of the right to appeal. The question is, what distinctive statutory and constitutional provisions, and/or philosophical considerations underlie this development?

3. Outline and Discussion PointsWhat peculiarities differentiate labour and industrial disputes to justify some of the seemingly unique provisions of the laws regulating its adjudication and appeal?Which Constitutional and statutory provisions and rules of procedure are relevant to this conversation?What is at stake and how have the relevant laws and the judicial interpretation thereof attempted to balance the interests between the speedy and efficient dispensation of justice and the well entrenched safeguard of appeals? What approach can be helpful going forward (perhaps also drawing on lessons from a comparative analysis of the approach in other jurisdictions)?

4. Introduction and Conceptual Clarification The key terms – ‘appeals’ as well as ‘labour and industrial disputes’ need to be clarified, to lay a proper foundation for the ensuing discussion.Appeals refer to the invitation of a higher court to review the decision of a lower court, and includes the power to reverse or modify the decision of the lower court. Appeals therefore afford an opportunity to parties who are dissatisfied with the decision of a lower court, to subject such decision to further scrutiny by a higher judicial body, usually sitting as a panel and therefore positioned to aggregate their collective knowledge, experience and skills to interrogate the decision, with a view to ascertaining whether, on the facts placed before it, and applying the relevant laws and principles, the lower court came to the right decision. The exercise of appellate jurisdiction is hinged on the fallible nature of all, including judicial officers

5. Intro cont’d…(labour and industrial disputes) Labour disputes refer to any controversy arising between a worker and an employer or a trade union and employers It is a disagreement between the parties concerned with labour relations over matters arising from, connected with or associated with rights, duties or conditions at workAn industrial dispute on its part is narrower, as it focuses on disagreements between a trade union and employer or employers' associationThus, labour is more all-encompassing, as it covers both individual employment as well as collective relations in the workplaceThe types of disputes arising in the course of work are quite extensive and this may be gleaned from the combined provisions of section 254C of the Constitution (as amended) and section 7 of the NIC Act which set out the range of matters over which the National Industrial Court has jurisdiction and which therefore fall within the range of issues that can give rise to labour disputes

6. Historical evolution of the framework for adjudication of labour and industrial disputes in Nigeria The Non-Interventionist and Voluntary Phase - Trade Disputes (Arbitration and Inquiry ) Ordinance, 1941The Interventionist Phase –Trade Disputes (Emergency Provisions) Act (No 21) 1968Establishment of the National Industrial Court (NIC) -Trade Disputes Act(No 7) 1976 with jurisdiction to settle trade disputes, interprete collective agreements and connected matters (section 20); Exclusive jurisdiction in making awards for the purpose of settling trade disputes, determination of questions regarding the interpretation of any collective agreement and any award made by an arbitration tribunal established under the ActTrade Disputes (Amendment) Act (No 47), 1992 which provided that the NIC was to be a superior court of record

7. Status and Jurisdiction of the NICThe Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 has put the status of the NIC beyond conjecture, as a superior court of record. It has also further given constitutional weight and flavour to the provisions of the National Industrial Court Act (No 38) of 2006 (NICA) which broadened the jurisdiction of the NIC beyond adjudication of industrial disputes to a more encompassing role which straddles the entire gamut of labour disputes including individual employment issues as well as collective labour concerns, as obtains in other jurisdictions.

8. Scope of labour and industrial disputes Labour, employment, trade unions, industrial relations Conditions of service, including health, safety, welfare, payment or non payment of salaries, wages, pensions, gratuities, allowances, benefits etc The Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or other labour lawsStrike, lock-out or any industrial actionFundamental rights connected with labour mattersDiscrimination and harassmentchild labour, child abuse, human traffickingCollective agreementtrade dispute or a trade union dispute

9. Qualification of President and Judges of the National Industrial CourtSection 254B (3) &(4)Ten years post qualification to practice as a legal practitioner in Nigeria; and Considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria.

10. NIC as a specialised Court- Justification The expansion of socio-economic activities , ICT and a more internationally aware and rights conscious workforce, coupled with sophisticated atypical employment relationships involving local, multinational and cross border employers in the digitalized world, require specialised courts to handle the increasingly complex disputes in the labour arenaFurthermore, there are increasingly sophisticated matters arising from or connected with human rights issues, evolving business association frameworks, complex contractual structures and/or acts bordering on commission of crimes

11. NIC as a specialised court….Without specialisation, the result is an overburdening of the regular courts and excruciatingly slow process of dispensing justiceJustice delayed = justice denied, which can undermine public confidence in the judicial process and unwittingly promote self helpOne of the pragmatic responses to contemporary developments in the labour arena is the establishment of specialised courts- including notably, for employment/labour/industrial disputesWithin some State High Courts, there is a trend towards some degree of specialisation(Family, Commercial, Land, Criminal and other sections)

12. Benefits of and imperatives for specialisation in labour and industrial disputesActualisation of the potentials of labour(human capital) to public and private sector organisations, investment and the attendant economic growth and development, political stability and general societal wellbeing Attuned to the vulnerability of individual workers on the one hand and challenges of employing organisations and thepeculiarities of the terrain where they operate Attention to international best practices, unfair industrial relations practices (employee and employer) etc

13. Appeals from NIC- Legal and procedural FrameworkConstitution of the Federal Republic of Nigeria, 1999 (as amended)National Industrial Court Act, 2006 and the NIC Civil Procedure Rules 2017Court of Appeal Rules 2021Case Law position

14. Appeals from NIC- IssuesRight of Appeal in Civil CasesFundamental Rights issuesRight of Appeal in Criminal CasesPowers of the Court of AppealCase Stated

15. Summary of the position on Appeal of NIC decisionsAppeal is subject to some limitations, as it only exists as of right with regard to questions of fundamental rights as contained in Chapter IV of the ConstitutionIn other civil cases, it exists only with leave (of the Court of Appeal)In civil cases, the decision of the Court of Appeal is final. However, in criminal cases and case stated, the Supreme Court’s jurisdiction may be successfully invoked

16. Appeal in civil matters: Constitutional and Statutory Provisions Section 243 (2) &(3) of the Constitution: (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) 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. **section 254C (5) confers jurisdiction on the NIC in respect of criminal matters arising from any cause or matter of which jurisdiction is conferred on it

17. Constitutional and Statutory cont’d…Section 246(2) :The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly.Section 9 of the NICA(1) Subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and subsection (2) of this section, no appeal shall lie from the decisions of the Court to the Court of Appeal or any other court except as may be prescribed by this Act or any other Act of the National Assembly. (2) An appeal from the decision of the Court shall lie only as of right 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

18. Rationale Applying the literal (ordinary) rule of construction, it appears that the unambiguously worded provisions evince an intention to strictly circumscribe the grounds or basis for appeal in civil casesWhy this unusual approach?Perhaps to avoid undue delay in the resolution of labour disputes, which after all, touch on the livelihood and well being not only of workers, but also their dependents. In fact, in some other jurisdictions, the right to life under Article 21 of the Constitution of India has been creatively construed as including the meaningful enjoyment of the right to a livelihood - Supreme Court of India in Olga Tellis v. Bombay Municipal Corporation (1986 AIR 180, 1985 SCR Supl. (2) 51)Perhaps also because of the criteria for appointment, where not only the qualification as a legal practitioner, but also exposure, knowledge and familiarity of the appointee with labour matters are prerequisites.

19. Rationale cont’d Thus, there is some confidence because of some expertise and specialisation of the judges in whom such weighty responsibility is vested Perhaps because although unusual, a contrary approach may defeat the underlying rationale behind the creation of this specialised court and render nugatory the efforts to achieve speed and efficiency in the dispensation of justice in this areaSee Cases like Cocacola and Akinsanya where the Basic Structure doctrine was unsuccessfully invoked to whittle down the power and jurisdiction of the NIC. According to the doctrine, parliament cannot be allowed to use its amending powers to damage, emasculate, destroy, abrogate or alter the basic structure or framework on which the constitution rests is subjected to intense interrogation and shut down. In this context however, Eko J.S.C stated clearly that “we will be overstretching the basic structure postulate if we submit to this less than fanciful argument "and accordingly held the doctrine inapplicable ... as well as the dissenting judgment of Akaahs JSC in Skye Bank Plc v Victor Iwu (2017) 16 NWLR 24 that the decisions of the NIC should be final because it is a specialised court and is meant to cater for special interests and foster economic development

20. The Balancing Act….On the other hand however, it must be admitted that judges, are not infallible. Hence, the need to subject decisions of trial courts to scrutiny in appropriate cases, in line with the conventional and well established Anglo-Nigerian jurisprudence, also has to be considered.Perhaps this informed the Supreme Court decision in Skye Bank Plc v Victor Iwu (2017) 16 NWLR 24 where a 6-1 majority held that a right of appeal exists from the NIC to the Court of Appeal , with the leave of the Court of Appeal, in all cases. According to Nweze J.S.C., a contrary interpretation would not only ‘wreak havoc to the settled notion of hierarchy of Courts under the Constitution’, but also ‘eventuate to a hermeneutic quagmire- a quagmire which is capable of muddling up the settled hierarchy in the appellate process’

21. Relevant Constitutional Provisions and the Balancing Act To reach this conclusion, the Supreme Court relied on Section 240 of the Constitution which unreservedly confers appellate jurisdiction on the Court of AppealSection 240 provides as follows: 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, National Industrial Court, the High Court of the Federal Capital Territory, Abuja…..The Court also applied the Living Tree Interpretation

22. Appeal in respect of Fundamental Rights contained in Chapter IV and relevance to labour disputes33. Right to life34. Right to dignity of human person35. Right to personal liberty36. Right to fair hearing37. Right to privacy 38. Right to freedom of thought, conscience and religion40. Right to peaceful assembly and association42. Right to freedom from discrimination

23. Appeal in Criminal MattersSection 254C (5)&(6) (5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law (6) Notwithstanding anything to the contrary in this Constitution, appeal shall lie from the decision of the National Industrial Court from matters in sub-section 5 of this section to the Court of Appeal as of right.

24. Reference of Questions of LawSection 295(2) of the Constitution Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or the National Industrial Court or a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.

25. Reference of Questions of Law/ Power of TransferSection 24(5)-(6) of the NICAWhere the court to which any matter has been transferred ….is of the opinion that the matter ought in law to be dealt with by the court which transferred the cause or matter , the first mentioned court shall, after hearing counsel of the parties, state a case on a point of law for the opinion of the Court of AppealWhere a case on a point of law is stated for the opinion of the Court of Appeal, the Court of Appeal shall, in accordance with rules applicable in that court, give its decision upon the case and the court which stated the case shall dispose of the cause or matter accordingly

26. Reference of Questions of Law/ Power of TransferAccording Kanyip J in Agboola Ebenezer v Grant & Ors (Unreported Suit No NICN/LA/501/2013 where the claimant had prayed that the matter should be sent back to the trial court from where it was initially transferred, “that would mean sitting on appeal over the decision of a court of coordinate jurisdiction” the court therefore rejected the prayer and applied section 24(5)

27. Powers of the Court of Appeal in exercise of its appellate jurisdictionThe Court of Appeal Act provide for the powers of the Court - to assume the all the powers of the trial court in determining an appeal before it. The Court may therefore affirm, reverse or uphold the decision of the NIC after careful consideration of the law as applied to the facts in disputeSee also the Court of Appeal Rules 2021 which provide for the procedure for such appealsTime Frame (Within 14 days, for interlocutory proceedings and 3 months for final decisions)The application for leave is to be made to the Court of AppealTo be accompanied by relevant forms and relevant forms and documents (eg CTC of decision sought to be appealed against, proposed grounds of appeal

28. Stay of Execution Section 47 of the NICA is to the effect that an appeal shall not automatically operate as a stay of execution. It is left to the Court to order a stay unconditionally or subject to such conditions as may be imposed in accordance with the Rules of CourtOrder 64(Rule 8 and Rule 14 empower the Court to grant stay of execution and proceedings , pending the determination of an appeal against its judgement/interlocutory decision respectively

29. Appellate Jurisdiction of NIC itself Section 254C (3) and section 7 of the NICA(3) … nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation. See also section 13-16 of the Trade Disputes Act , Order 50 of the NIC Rules, 2017