TOPPLING THE FINAL JURISDICTION OF THE NATIONAL INDUSTRIAL COURT:

THE MISCHIEF IN SKYE BANK PLC v IWU

Prof OVC Okene* and Dr GG Otuturu****

Abstract
The National Industrial Court is a specialized court for the expeditious resolution
of labour disputes by experts. The court was created under the Trade Disputes
Decree 1976 as amended by the Trade Disputes (Amendment) Decree No. 47 of
1992, which conferred exclusive jurisdiction on the National Industrial Court to
hear and determine trade disputes including trade union disputes. The sane
Decree accorded the court the status of a superior court of record with a right of
appeal from the decisions of the National Industrial Court to the Court of Appeal
only on questions of fundamental rights contained in Chapter IV of the 1979
Constitution. However, in NUEE v BPE (infra), the Supreme Court declared
Decree 47 of 1992 null and void for being inconsistent with the provisions of
section 272 of the 1999 Constitution, which precipitated the amendment of the
1999 Constitution by the Third Alteration Act 2010, which re-enacted Decree 47
of 1992 into sections 6, 243 and 254 of the Constitution. Then in Skye Bank Plc v
Iwu (infra), the Supreme Court toppled the final jurisdiction of the National
Industrial Court by interpreting sections 240 and 243 of the Constitution to the
effect that all decisions of the National Industrial Court are appealable to the
Court of Appeal. This paper critically examines this landmark decision and its
impact on the industrial judicial system in Nigeria. It argues that in interpreting
the constitutional provisions, the Supreme Court, in its majority decision, failed to
take into consideration the aim of the legislature in establishing the National
Industrial Court, which is the need for expeditious resolution of labour disputes
by experts. It also examines the South African experiment. It concludes that the
Court of Appeal is already inundated with appeals from the Federal and State
High Courts, Customary and Sharia Courts of Appeal, Courts Martial and other
tribunals and lacks the expertise needed for the expeditious resolution of labour
disputes. It suggests that the National Assembly should further amend the
Constitution to divest the Court of Appeal of its appellate jurisdiction over the
decisions of the National Industrial Court and to create a special Labour Appeal
Court to hear appeals from the decisions of the National Industrial Court.

INTRODUCTION

The National Industrial Court is a specialized court and differs from the regular courts in many

respects. It is presided over by experts in labour and industrial relations law and practice. It is

guided by informality, simplicity, flexibility and speed. It has limited and exclusive jurisdiction

*
Prof OVC Okene, LLB, LLM, BL, PhD (Essex, UK), FCAI, JP, Professor of Law and Dean, Faculty of Law,
Rivers State University, Port Harcourt, Nigeria; Solicitor and Advocate of the Supreme Court of Nigeria. E-
mail: ovcokene@yahoo.com; profovcokene@gmail.com
** **
Dr Gogo G. Otuturu, LL.B, LL.M, PhD, B.L, CBA, DipEd, ACIArb, Solicitor and Advocate of the Supreme
Court of Nigeria; Senior Lecturer, Faculty of Law, Niger Delta University, Wilberforce Island, Bayelsa State.
E-mail: otuturulaw@gmail.cocm; otuturulaw@yahoo.com

1
over labour and employment matters. Its decisions were considered as final and conclusive

except on questions of fundamental rights and criminal matters.

However, the court had a chequered history with regard to its status, powers and exclusive

jurisdiction, which precipitated the alteration of the Constitution of the Federal Republic of

Nigeria 1999 by the Third Alteration Act 2010. The Act listed the National Industrial Court as a

superior court under the Constitution.1 It also recognized the National Industrial Court as a

specialized court with experts in labour and industrial relations law and practice. 2 It further

conferred exclusive jurisdiction on the National Industrial Court over labour and employment

matters3 and provided that except on questions of fundamental rights4 and criminal matters,5 no

appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal except

as may be prescribed by an Act of the National Assembly and such appeal shall be with the leave

of the Court of Appeal.6

However, in Skye Bank Plc v Iwu,7 the Supreme Court toppled the final jurisdiction of the

National Industrial Court over labour and employment matters by interpreting sections 240 and

243 of the Constitution to include a right of appeal from all decisions of the National Industrial

Court to the Court of Appeal as of right on questions of fundamental rights and criminal matters

and with the leave of the Court of Appeal on all other matters. This paper critically examines this

landmark decision and its impact on the industrial judicial system in Nigeria. It argues that the

decision failed to advance the intention of the Legislature in enacting the Third Alteration Act

2010, which not only elevated the National Industrial Court to the status of a superior court

under the Constitution but also recognized the National Industrial Court as a specialized court
1
Constitution of the Federal Republic of Nigeria 1999, as amended by the Constitution (Third Alteration) Act
2010, s 6(5)(c).
2
Ibid, s 254B (3) and (4).
3
Ibid, s 254C (1)-(4).
4
Ibid, s 243(2).
5
Ibid, s 254C (5) and (6).
6
Ibid, s 243(3).
7
(2017) 16 NWLR (Pt 1590) 24.

2
with experts in labour and industrial relations law and practice for the expeditious resolution of

labour and employment disputes. The paper also examines the South African experiment.

The paper concludes that the Court of Appeal is already inundated with appeals from the Federal

and State High Courts including the High Court of the FCT, the Customary and Sharia Courts of

Appeal and of the FCT, the Courts Martial and other tribunals and lacks the expertise needed for

the expeditious resolution of labour and employment disputes. Accordingly, it suggests that the

National Assembly should further amend the Constitution to divest the Court of Appeal of its

appellate jurisdiction over the decisions of the National Industrial. It also suggests that a special

Labour Appeal Court should be established to hear and determine appeals from the decisions of

the National Industrial Court and the decisions of the Labour Appeal Court should be final

except on questions of fundamental rights and criminal matters in which case appeals should

further lie to the Supreme Court to avoid unhealthy rivalry between the two courts.

BRIEF HISTORY OF THE NATIONAL INDUSTRIAL COURT

Historically, the National Industrial Court of Nigeria was established under Part II of the Trade

Disputes Decree 19768 with respect to the settlement of trade disputes, the interpretation of

collective agreements and matters connected therewith. 9 However, the court did not take off till

two years later in 1978.10

Prior to the establishment of the National Industrial Court, labour and industrial relations law and

practice in Nigeria was modeled on the non-interventionist and voluntary model of the British

8
The Trade Disputes Decree 1976 was later designated as the Trade Disputes Act, Cap 432, Laws of the
Federation of Nigeria 1990, s 19
9
See Justice BA Adejumo, ‘The National Industrial Court: Past, Present and Future’ (Paper delivered at the
Refresher Course Organized for Judicial Officers of between 3-5 Years Post Appointment by the National
Judicial Institute, Abuja, on 24th March 2011)
10
See Justice BA Adejumo, ‘The National Industrial Court: Past, Present and Future’ (Paper delivered at the
Refresher Course Organized for Judicial Officers of between 3-5 Years Post Appointment by the National
Judicial Institute, Abuja, on 24th March 2011)

3
approach.11 After the Civil War, this approach was abandoned by the military administration for

an interventionist model.12

In 1992, the Trade Disputes Act was amended by the Trade Disputes (Amendment) Decree 1992

which conferred exclusive jurisdiction on the National Industrial Court to make awards for the

purpose of settling trade disputes and to determine questions as to the interpretation of collective

agreements, any award made by an arbitration tribunal and the terms of settlement of any trade

dispute as recorded in any memorandum.13

The Trade Disputes Act was further amended by the National Industrial Court Act 2006 which

repealed Part II of the Trade Disputes Act. However, the trade dispute resolution processes in

Part 1 of the Trade Disputes Act are saved under the National Industrial Court Act 2006. In

particular, the Act provides that ‘the other provisions of the Trade Disputes Act shall be

construed with such modifications as may be necessary to bring it into conformity with the

provisions of this Act.’14 The court is now established under section 254A (1) of the Constitution

of the Federal Republic of Nigeria 1999, as amended by the Constitution (Third Alteration) Act

2010, with enhanced jurisdiction over labour and employment matters.

POWERS AND JURISDICTION OF THE NATIONAL INDUSTRIAL COURT

The Constitution (Third Alteration) Act 2010 has enhanced the status of the National Industrial

Court and expanded its jurisdiction. 15 The Court is now listed as one of the superior courts of

11
OVC Okene, ‘Nigeria’s Labour and Industrial Relations Policy: From Voluntarism to Interventionism - Some
Reflections’ (2012) 4(1) Port Harcourt Law Journal; 200-247
12
Justice BB Kanyip, ‘The National Industrial Court: Yesterday, Today and Tomorrow’
<http://nicn.gov.ng/juris.php> accessed 2 August 2016
13
The Trade Disputes Act 1990 as amended by the Trade Disputes (Amendment) Decree 1992 was re-designated
as the Trade Disputes Act, Cap T8, Laws of the Federation of Nigeria 2004 (“TDA”).
TDA, s 20
14
National Industrial Court Act 2006 (“NICA”), s. 53(1)
15
GG Otuturu, ‘Powers and Jurisdiction of the National Industrial Court in the Resolution of Labour Disputes in
Nigeria’ (2015) 9(1) Labour Law Review 30-50.

4
record16 under the Constitution with all the powers of a High Court. 17 The Court now has

jurisdiction over both individual and collective labour disputes. 18 Its jurisdiction now covers all

labour and employment matters.19

The Court has original jurisdiction over individual labour disputes. Thus, individual employees

can now access the Court for adjudication over their grievances. 20 The Court also has original

interpretative jurisdiction. The Court has original jurisdiction over the determination of any

question as to the interpretation of any collective agreement, any labour dispute as may be

recorded in any memorandum of settlement, any trade union constitution and any award or

judgment of the Court.21 The Court further has original jurisdiction over strikes relating to the

grant of any order to restrain any person or body from taking part in any strike, lockout or any

industrial action22 as well as the grant of the prerogative orders of mandamus, prohibition,

certiorari and injunction.23

However, the jurisdiction of the National Industrial Court over trade disputes and trade union

disputes is mainly appellate jurisdiction. In other words, collective labour disputes still go

through the dispute settlement processes under Part 1 of the TDA before such matters are heard

by the Court.24 It is still the Minister of Labour that activates the appellate jurisdiction of the

National Industrial Court over trade disputes and trade union disputes.25

16
CFRN 1999, as amended, s 6(5).
17
Ibid, s 254D(1).
18
Ibid, s 254 C(1).
19
Akinsanya v Coca-Cola Nigeria Ltd & Ors (2012) 28 NLLR (Pt. 79) 72, 188 [Kanyip PJ]; confirmed on appeal
in Coca-Cola Nigeria Ltd v Akinsanya (2013) 18 NWLR (Pt 1386) 225.
20
Moses & Ors v Bishop James Yisa Memorial School Ltd (2013) 31 NLLR (Pt. 88) 59, 81 [Shogbola J].
21
NICA, ss 7(1)(c), 15(1) and 16(1).
22
Ibid, s 7(1)(b).
23
Ibid, ss 17-19.
24
Nestoil Plc v National Union of Petroleum and Natural Gas Workers (2012)29 NLLR (Pt. 82)90, 159; Eleme
Petrochemicals v Emmanuel (2009)17 NLLR (Pt. 46) 81, 106.
25
National Union of Petroleum and Natural Gas Workers v Maritime Workers’ Union of Nigeria (2012) 28
NLLR (Pt. 80) 309; Provost, College of Legal Studies, Yola v Non-Academic Staff Union of Educational and
Associated Institutions (2012) 29 NLLR (Pt.82) 34.

5
APPEALS FROM THE NATIONAL INDUSTRIAL COURT

Under the Trade Disputes Act, decisions of the National Industrial Court in its appellate

jurisdiction over trade disputes and trade union disputes including its interpretative jurisdiction

are final except on questions of fundamental rights under Chapter IV of the Constitution and, in

such case, the decision of the Court of Appeal shall be final 26 The Trade Unions Act, as amended

by the Trade Unions (Amendment) Act 2005, also provides that the provisions of the Trade

Disputes Act shall apply in all disputes affecting the provisions of essential services and the

determination of the National Industrial Court in all such disputes shall be final.27

These provisions are reinforced in section 243 of the Constitution, as amended, which provides

that ‘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 the Constitution as it

relates to matters upon which the National Industrial Court has jurisdiction.’ 28 This is in addition

to section 254C, which provides that an appeal shall lie from the decision of the National

Industrial Court to the Court of Appeal as of right on criminal matters. 29 The Constitution further

provides that no appeal shall lie from the decisions of the National Industrial Court to the Court

of Appeal except as may be prescribed by an Act of the National Assembly and such appeal shall

be with the leave of the Court of Appeal.30

It was thought that appeals would lie from the decisions of the National Industrial Court to the

Court of Appeal only on questions of fundamental rights and criminal matters. In all other cases,

it was thought that the decisions of the National Industrial Court would be final until an Act of

the National Assembly donates further appellate jurisdiction to the Court of Appeal. 31 Thus, in

26
TDA, ss 14, 15 and 16; NICA, s 9.
27
TUA, as amended, s 31(8).
28
CFRN, s 243(2).
29
Ibid, s 254C (5) and (6).
30
Ibid, s 243(3).
31
Ibid, s 243(3).

6
Bank of Industry Ltd v. National Union of Banks, Insurance and Financial Institutions

Employees32 the claimant filed an appeal against the decision of the National Industrial Court. In

reaction to the appeal, the defendant filed a preliminary objection, whereupon the claimant filed

a notice of withdrawal of the appeal consequent upon which the appeal was dismissed with cost.

Thereafter, the claimant came back to the National Industrial Court praying the court to review

its judgement on the ground that his client was not given a fair hearing in the main suit.

Dismissing the suit, the National Industrial Court said:

When counsel to the claimant appealed against the decision of this court to the
Court of Appeal, he had to withdraw that action because the issue of fundamental
rights (particularly fair hearing) was not an issue, for only on this ground would
the Court of Appeal have the jurisdiction to hear an appeal.33

However, there had been divergent views of the Court of Appeal arising from the construction of

section 243 of the Constitution, as amended, concerning which decisions of the National

Industrial Court are appealable and which decisions are not appealable. It was against this

backdrop that in Skye Bank Plc v Iwu34 the Lagos Division of the Court of Appeal stated a case

for the Supreme Court’s opinion on whether the Court of Appeal has jurisdiction to hear appeals

from all decisions of the National Industrial Court.

In that case, the respondent instituted an action against his employer, Mainstreet Bank Limited

(as successors-in-title to Afribank Nigeria Plc) at the National Industrial Court, Lagos Division,

claiming inter alia wrongful termination of his employment, unpaid accrued salaries and other

benefits which he alleged were due to him in the course of his employment. In the course of the

suit, Mainstreet Bank Limited raised a preliminary objection to the court’s ju4risdiction to hear

and determine the case. The National Industrial Court held that it had jurisdiction to hear and

determine the matter and, consequently, dismissed the objection.

32
(2012) 26 NLLR (Pt. 73) 78
33
Ibid 92
34
Skye Bank (n 7) 24.

7
Aggrieved by the ruling, Mainstreet Bank Limited appealed to the Court of Appeal. The

respondent in turn raised an objection to the jurisdiction of the Court of Appeal to hear and

determine the appeal on the ground that the decisions of the National Industrial Court were

appealable only on issues of fundamental rights and that the appeal was not based on

fundamental rights. After hearing arguments of the parties on the objection, the Court of Appeal

adjourned the matter for ruling, but later put the ruling in abeyance because Mainstreet Bank

Limited applied that the Court of Appeal should state a case for the Supreme Court’s opinion on

the constitutional issues raised in the respondent’s objection.

The principal ground for the application was that there were on record two sets of conflicting

decisions of the Court of Appeal on whether the Court of appeal had jurisdiction over appeals

against all decisions of the National Industrial Court. On the one hand, in Local Government

Service Commission, Ekiti State v Jegede 35 and related cases,36 the Ekiti Division of the Court of

Appeal held that there is no constitutional provision which expressly divested the Court of

Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the

National Industrial Court. On the other hand, in the more recent cases of Coca-Cola Akinsanya

Nigeria Ltd v Akinsanya37 and Lagos Sheraton Hotels and Towers v HPSSA38 the Enugu Division

of the Court of Appeal held that having regard to the Constitution (Third Alteration) Act 2010, it

can only exercise appellate jurisdiction over the decisions of the National Industrial Court

questions of fundamental rights and criminal matters.

The Court of Appeal granted the application and formulated three issues for determination by the

Supreme Court, that is to say:

35
(2013) LPELR 21131 (CA).
36
Local Government Service Commission v Bamiseye (2013) LPELR 20407 (CA).; Local Government Service
Commission v Olamiju (2013) LPELR 20409 [CA]; Local Government Service Commission v Asubiojo (2013)
LPELR 20403 [CA].
37
(2013) 18 NWLR (Pt 1386) 225.
38
(2014) 14 NWLR (Pt 1426) 45, followed by the Court of Appeal in Lawal v Obafemi Awolowo University
(2016) LPELR 40290 (CA).

8
1. Whether the Court of Appeal as an appellate court created by the Constitution of the

Federal Republic of Nigeria 1999 (as amended) has the jurisdiction to the exclusion of

any other court of law in Nigeria to hear and determine all appeals arising from the

decisions of the National Industrial Court of Nigeria?

2. Whether there exists ay constitutional provision which expressly divested the Court of

Appeal of its appellate jurisdiction over all decisions on civil matters emanating from the

National Industrial Court of Nigeria?

3. Whether the Court of appeal’s jurisdiction to hear civil appeals from the decisions of the

National Industrial Court of Nigeria is limited to only questions of fundamental rights? 39

At the Supreme Court, the appellant40 argued that since the National Industrial Court is one of the

courts mentioned in section 240 of the Constitution of the Federal Republic of Nigeria 1999, as

amended by the Third Alteration Act 2010, all decisions of the court were subject to review by

the Court of Appeal. The appellant also argued that no provision in the Constitution foreclosed a

right of appeal from any decision of the National Industrial Court to the Court of Appeal and that

in the absence of any specific provision in the Constitution and the National Industrial Court Act

that the National Industrial Court was a final court on any matter before it, it could not exercise

the act of finality in any matter brought before it. The appellant further argued that decisions of

the National Industrial Court are appealable as of right on fundamental rights violation and with

leave of the Court of Appeal in other cases.

The respondent, on the other hand, argued that by virtue of the provisions of section 243(2) – (4)

of the Constitution, the Court of Appeal could only exercise limited appellate jurisdiction over

the decisions of the National Industrial Court. The appellant also argued that such appellate

jurisdiction related to only decisions of the National Industrial Court on questions of

39
Skye Bank (n 7) 73 B-E.
40
In the course of the proceedings at the Supreme Court, Skye Bank Plc became successor-in-title to Mainstreet
Bank Limited and was granted leave of court to continue with the appeal as the appellant.

9
fundamental rights in Chapter IV of the Constitution and to appeals from the criminal

jurisdiction of the National Industrial Court as provided in section 254C (6) of the Constitution,

as amended. The appellant further argued that the right of appeal is granted by the Constitution

or statute and not by statutory interpretation41 and that until the National Assembly made an Act

donating further appellate jurisdiction to the Court of Appeal pursuant to section 254C (3) of the

Constitution, as amended, the Court of Appeal had no jurisdiction to inquire into the decisions of

the National Industrial Court except as provided in the Constitution.

In resolving the issues referred to it, the Supreme Court considered sections 6(1) and (5), 240,

243 and 254C of the Constitution of the Federal Republic of Nigeria 1999, as amended by the

Constitution (Third Alteration) Act 2010. In the exercise of its undoubted prerogative to prune

down and accentuate issues in the interest of clarity and brevity, 42 the Supreme Court also

isolated the first issue as truly determinative of the triadic formulations of the lower court. 43

In its majority judgement, the Supreme Court held that with the inclusion of the National

Industrial Court in section 240 of the CFRN 1999, as amended by the Third Alteration Act 2010,

as one of the courts from which the Court of appeal can hear appeals, in respect of their

decisions, the Court of Appeal has jurisdiction to hear appeals from all decisions of the National

Industrial Court. Delivering the leading judgement of the Supreme Court, Nweze JSC said:

In all, on a holistic interpretation of sections 240 and 243(1) of the 1999

Constitution [as amended], appeals lie from the [National Industrial Court], that is,
all decisions of the [National Industrial Court] are appealable to the [Court of
Appeal] as of right in criminal matters [section 254C (5) and (6)] and fundamental
rights cases [section 243(2)]; and with the leave of the [Court of Appeal] in all other
civil matters where the [National Industrial Court] has exercised its jurisdiction
[section 249 read conjunctively with section 243(1) and (4)].44

41
N.M.G.I.A. Ltd v Uchey (1973) 4 SC 1; Inigbede v Balogun (1973) 1 All NLR 233.
42
Unity Bank Plc v Bouari (2008) LPELR 3411 (SC) 21-22 A-B; (2008) 7 NWLR (PT 1086) 372; Musaconi Ltd
v Aspinall (2013) LPELR 20745 (SC) 6-7; (2013) 14 NWLR (PT 1375) 435; I.T.I.V. Ltd v Onyeson Community
Bank (2015) LPELR 24819 (SC) 20 B-D; (206) 17 NWLR (PT 1487) 1.
43
Skye Bank (n 7) 73 C-D.
44
Ibid 105-106 H-A [Nweze JSC].

10
THE MISCHIEF IN SKYE BANK PLC v IWU

It is submitted that the interpretation of section 240 of the Constitution by the Supreme Court

violates the mischief rule. This canon of interpretation takes into consideration the legislative

history, that is, how the law stood when the Third Alteration Act 2010 was passed; what the

mischief was which the old law, that is, the 1999 Constitution, did not provide; and the remedy

which the new law, that is, the Third Alteration Act 2010, was passed to cure.45

It will be recalled that the National Industrial Court was established as a specialized court and

conferred with exclusive jurisdiction on ground of public policy for the speedy resolution of

trade disputes by experts for the promotion of industrial peace and economic development and to

prevent needless resort to industrial action and attendant loss of resources. 46 However, the court

had a chequered history with regard to its status, powers and exclusive jurisdiction over trade

disputes including trade union disputes. A few cases will illustrate how the law stood before the

enactment of the Third Alteration Act 2010.

In A-G of Oyo State v. Nigeria Labour Congress & Ors 47 where the plaintiff/appellant sought

inter alia a declaration that no trade dispute known to law has been declared by the defendants

and on order of mandatory injunction directed at the defendants jointly and severally to return to

work immediately. The Oyo State High Court, Ibadan, struck out the case on the ground that it

lacked jurisdiction to entertain same being a trade dispute. Relying on the decision of the

Supreme Court in Western Steel Works v. Iron & Steel Workers Union of Nigeria,48the Court of

Appeal allowed the appeal and remitted the case back to the lower court for hearing on the

45
Ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 365; Wilson v A-G, Bendel State (1985) 1 NWLR (Pt. 4) 572;
Global Excellence Communications Ltd v Duke (2007) 16 NWLR (Pt. 1059) 22 at 47-48 H-C; Agbaje v Fashola
(2008) All FWLR (Pt. 443) 1302 at 1338 C-E; Attorney-General of Lagos State v Attorney-General of the
Federation (2003) 12 NWLR (Pt. 833) 1.
46
B Aturu, Nigerian Labour Laws: Principles, Cases, Commentaries and Materials (Friedrich Ebert Stiftung
2005) 243.
47
(2003) 8 NWLR (Pt. 821) 1.
48
(1987) SC 11, 44 per Oputa JSC.

11
ground that the jurisdiction of the National Industrial Court does not include making declarations

and injunctive orders over which only the State High Court has jurisdiction.

In Kalango v. Dokubo49 the plaintiffs/respondents sought a number of reliefs from the Rivers

State High Court Including a declaration that the refusal by the defendants to conduct elections

for new executive officers of the National Union of Road Transport Workers is wrongful and

ultra vires the constitution of the union, and an order of perpetual injunction restraining the

defendants from controlling, managing, directing or howsoever interfering with the affairs of the

union or parading themselves as the executive offices of the union. The defendants filed a motion

praying for an order striking out the suit for want of jurisdiction by virtue of the Trade Disputes

(Amendment) Decree No. 47 of 1992. The trial judge dismissed the application, whereupon the

defendants appealed to the Court of Appeal. The respondents contended that the jurisdiction of

the National Industrial Court did not include jurisdiction to make declarations and to order

injunctions. Dismissing the appeal, Ikongbeh, JCA said:

I am of the view that, even the promulgation of the section 1A of the Act, the
[National Industrial Court] still lacks the competence to make declarations
and order injunction of the type sought by the plaintiffs/respondents in the
instant case. It can only make awards and determine questions as to the
interpretation of the three types of documents specified. All other things that
are neither ancillary nor incidental to the specified jurisdiction and powers
would be clearly outside its jurisdiction and powers. In the circumstance, I
think the view of Oputa JSC in Western Steel Works case, referred to earlier,
is still valid today as it was when the learned justices of the Supreme Court
expressed it in February 1987 and still represents the law.50

In National Union of Road Transport Workers v. Road Transport Employers Association of

Nigeria51 the plaintiffs/appellants instituted an action in the Federal High Court claiming inter

alia declarations and injunctions restraining the defendants/respondents and/or groups of persons

not authorized by law to engage in transportation of passengers and goods by road from

49
(2004) 1 NLLR (Pt. 1) 180.
50
Ibid 211 [Ikongbeh JCA].
51
(2012) 29 NLLR (Pt. 83) 161.

12
operating, interfering and/or disturbing the plaintiffs/appellants and/or their agents, servants or

members of the various motor parks in Ekiti State where they are lawfully engaged. The

Supreme Court, per Fabiyi JSC, said:

It is well settled by this court in the case of Western Steel Works Ltd v. Iron
Steel Workers Union of Nigeria (supra) that section 15 of the Trade Disputes
Act, 1976 conferring jurisdiction on the National Industrial Court in respect of
certain species of cases did not include jurisdiction to make declarations and
to order injunctions as in this case.52
It has been noted that the spate of injunctive orders by the various High Courts became a source

of worry to the Government. To avoid injunctive orders which could unleash a mishap, the

Government wanted the cases filed by the trade unions to go before a serene atmosphere at the

National Industrial Court where cases would be heard and determined expeditiously by experts

and injunctive orders would not freely fly in the sky like kites. 53 However, when the Constitution

of the Federal Republic of Nigeria 1999 was promulgated by the Military Government, the

National Industrial Court was not included as one of the “superior courts of records” listed under

the Constitution and vested with the judicial powers of the Federation and of the States. In an

attempt to remedy the situation, the National Assembly enacted the National Industrial Court Act

2006, which provided for the status of the National Industrial Court as a superior court of

record,54 with the exclusive jurisdiction over all labour and employment matters 55 and power to

enforce its judgements,56 order injunctions57 and make declarations.58 But this did not save the

National Industrial Court from further harassment by the appellate courts.

It is an understatement that the aim of the Third Alteration Act 2010 is to elevate the National

Industrial Court to the status of a superior court of record. 59 If it were so, the framers of the Third

52
Ibid 199
53
Madu v National Union of Pensioners (2001) 16 NWLR (Pt. 739) 346, 361-362 H-B [Fabiyi JCA].
54
NICA, s 1(3).
55
Ibid, s 7(1).
56
Ibid, s 10.
57
Ibid, ss 16 and 18.
58
Ibid, s 19.
59
Skye Bank (n 7) 91 AB [Nweze JSC]; 143 A-B [Kekere-Ekun JSC].

13
Alteration Act 2010 would have merely included the court in the Constitution and granted it the

powers of a High Court and nothing more. But that is not and could not be an all-in-one remedy

for the myriads of problems faced by the National Industrial Court under the Trade Disputes Act

and the National Industrial Court Act.

Trade disputes were litigated in the Federal 60 and State61 High Courts by virtue of judicial

interpretation that the National Industrial Court lacks the competence to make declarations and

order injunctions62 thereby creating forum shopping for the trade unions and employers. Appeals

went up to the Court of Appeal and ultimately to the Supreme Court thereby creating an

expensive and lengthy hierarchy of courts for the resolution of trade disputes. In Udoh v

Orthopaedic Hospitals Management Board63 Karibi-Whyte JSC rationalized the mischief which

the Trade Disputes (Amendment) Decree No. 47 of 1992, which conferred exclusive and final

jurisdiction on the National Industrial Court over trade disputes including inter and intra union

disputes, was promulgated to remedy thus:

It seems to me that the mischief aimed at by this amendment is to avoid the

proliferation of trade union cases in several High Courts and ensure their litigation
in the National Industrial Court only.64

Thus, Decree 47 of 1992 conferred exclusive jurisdiction on the National Industrial Court over

trade disputes including trade union disputes. It also accorded the status of a superior court of

record to the National Industrial Court. It further provided for the right of appeal from the

decisions of the National Industrial Court to the Court of Appeal only on questions of

60
In Madu & Ors v National Union of Pensioners (2001) 16 NWLR (Pt. 739) 346, the appellants instituted the
action in the Federal High Court, Enugu, challenging the dissolution of the Executive Committee of the two
factions of the respondent union and setting up an alternative eight-man Caretaker Committee to run the affairs
of the Nigerian Coal Corporation branch of the union.
61
In Ekong & Anor v Oside & Ors (2005) 9 NWLR (Pt. 929) 102, the appellants instituted the action in the High
Court of the FCT, Abuja, against the National President and General Secretary of the Hotels and Personal
Services Senior Staff Association (HAPSSSA) challenging the dissolution of the Abuja branch of the
HAPSSSA and the freezing of the account of Nicon Hilton Hotel Branch of the union.
62
Western Steel Works v. Iron & Steel Workers Union of Nigeria (1987) SC 11, 44 [Oputa JSC].
63
(1993) 7NWLR (Pt. 304) 139.
64
Ibid 149 B-C [Karibi-Whyte JSC]. See also Daniels v Fadugba (1998) 13 NWLR (Pt. 582) 482.

14
fundamental rights contained in Chapter IV of the 1979 Constitution. In Ekong v Oside,65

Muhammad JCA (as he then was) succinctly stated the aim of Decree 47 of 1992 thus:

Thus, by Decree 47 of 1992, the only court that is conferred with jurisdiction to
hear trade dispute matters is the National Industrial Court. Same Decree accorded
the status of a superior court of record to the National Industrial Court, as appeals
from its decisions on questions on fundamental rights contained in Chapter IV of
the Constitution shall lie to the Court of Appeal.66

However, in National Union of Electricity Employee v Bureau of Public Enterprises,67 one of the

issues for determination before the Supreme Court was whether Decree 47 of 1992 which vests

exclusive jurisdiction in the National Industrial Court to hear and determine trade disputes is

inconsistent with the 1999 Constitution? Briefly, the facts are that the respondent instituted an

action against the appellants, a trade union and its Secretary General, at the High Court of Lagos

State, seeking a declaration that the appellants were not entitled to declare and embark on any

strike action being a body of persons engaged in the provision of an essential service within the

meaning of the Trade Disputes Act68 and the Trade Disputes (Essential Services) Act69and for an

order of perpetual injunction. The appellants filed a preliminary objection and argued that as the

issues concerned a trade dispute, the High Court of Lagos State had no jurisdiction to hear and

determine the suit. The trial court agreed with the appellants and struck out the suit. Being

dissatisfied, the respondent appealed to the Court of Appeal, which allowed the appeal.

In allowing the appeal, the Court of Appeal set the tone when Aderemi JCA (as he then was)

stated that Udoh v Orthopaedic Hospitals Management Board (supra) and Daniels v Fadugba

(supra) were decided during the military regime when, by force of law, it did not admit of any

argument that the provisions of any decree were superior to the unsuspended provisions of the

65
(2005) 9 NWLR (Pt. 929) 102.
66
Ibid 115 F-G [Muhammad JCA].
67
(2010) 7NWLR (Pt. 1194) 548.
68
Trade Disputes Act, Cap 432, Laws of the Federation of Nigeria 1990 (now Trade Disputes Act, Cap T8, Laws
of the Federation of Nigeria 2004).
69
Trade Disputes (Essential Services) Act, Cap 433, Laws of the Federation of Nigeria 1990 (now Trade
Disputes (Essential Services) Act, Cap T9, Laws of the Federation of Nigeria 2004).

15
Constitution; but in a civil or democratic regime, the provisions of a decree, edict or indeed any

other law, act or rule have been subjugated to the provisions of the Constitution. 70 Without

stating the obvious, the Court of Appeal held that, from the combined effect of sections 251 and

272 of the 1999 Constitution, the jurisdiction of the State High Court is not ousted such that it

cannot entertain the present suit since the Constitution is the supreme law of the land. 71

Thus, the tone was set for the Supreme Court to determine the main issue before it. In resolving

the issue, the Supreme Court, per Chukwuma-Eneh JSC (as he then was), stated that the

jurisdiction of the State High Court as conferred by the Constitution can only be curtailed or

abridged or even eroded by the Constitution itself and not by an Act or Law respectively of the

National Assembly or State House of Assembly, meaning that where there is conflict in that

regard between the provisions of the Constitution and the provisions of any other Act or Law of

the National Assembly or State House of Assembly, respectively, the Constitution shall prevail

except by deceit and clear provision in the Constitution itself to that effect. 72 The Supreme Court

also stated that Decree 47 of 1992 arrogating to the National Industrial Court the status of a

superior court of record does not by that token make the National Industrial Court a superior

court of record without an amendment of section 6(3) and (5) of the 1999 Constitution which has

listed the only superior courts of record recognized and known to the Constitution and the list

does not include the National Industrial Court and, until the Constitution is amended, the

National Industrial Court remains a subordinate court to the High Court.73

In summary, the Supreme Court stated that the implication of conferring exclusive jurisdiction in

trade disputes on the National Industrial Court is to exclude the wide powers of the State High

70
For this proposition, see Labiyi v Anretiola (1992) 8 NWLR (Pt. 258) 139.
71
The judegement of the Court of Appeal is reported as Bureau of Public Enterprises v National Union of
Electricity Employees (2003) 13 NWLR (Pt. 837) 382.
72
NUEE (n 67) 570 C-E [Chukuma-Eneh JSC].
73
Ibid 572 A-B [Chukwuma-Eneh JSC] citing with approval the decision of the Court of Appeal in A-G, Oyo
State v NLC (2004) 8 NWLR (Pt. 821) 1, 3 [Tobi JCA].

16
Court thus causing the conflict between Decree 47 of 1992 and section 272 of the 1999

Constitution. The Supreme Court, therefore, declared Decree 47 of 1992 null and void to the

extent of the inconsistency.74 Decree 47 of 1992 having been declared null and void to the extent

of its inconsistency with section 272 of the Constitution, there was no longer any legal basis for

the exclusive jurisdiction of the National Industrial Court over trade dispute matters.

The implication is that the National Industrial Court would share concurrent jurisdiction with the

Federal and State High Courts, including the High Court of the Federal Capital Territory, and

appeals would lie from the decisions of the High Courts to the Court of Appeal and, ultimately,

to the Supreme Court, which was the position prior to the promulgation of Decree 47 of 1992. 75

This would create a lengthy hierarchy of courts in the resolution of trade disputes with attendant

delays and costs, which is inconsistent with international labour standards which require the

expeditious resolution of labour disputes by specialized courts. 76 It was only a matter of time

before the Supreme Court, or even the Court of Appeal, would find an occasion to use its sledge

hammer to knock the bottom of the National Industrial Court Act 2006 for being inconsistent

with section 272 of the Constitution.

Thus, the aim of the Third Alteration Act 2010 is not only to elevate the National Industrial

Court to the status of a superior court of record under the Constitution but also to confer

exclusive jurisdiction on the National Industrial Court over trade dispute matters and to create a

right of appeal from the decisions of the National Industrial Court to the Court of Appeal only on

74
Ibid 570 C-D [Chukwuma-Eneh JSC].
75
See, for example, the cases of Daniels v Fadugba (1998) 13 NWLR (Pt. 582) 482; NURTW v RTEAN (2001)
14 NWLR (Pt. 733) 313; Madu v NUP (2001) 16 NWLR (Pt. 739) 346; A-G, Oyo State v NLC (2003) 8 NWLR
(Pt. 821) 1; Kalango v Dokubo (2004) NLLR (Pt. 1) 199; Udoh v OHMB (1993) 7 NWLR (Pt. 304) 139 and
NUEE v BPE (2010) 7 NWLR (Pt. 1194) 548 where labour and employment matters instituted in the High
Courts went on appeal to the Court of Appeal and, ultimately, to the Supreme Court.
76
ILO, Labour Courts (Studies and Reports Series A) Industrial Relations No. 40 (International Labour Office
1938) 1-5; K De Givry, ‘Labour Courts as Channels for the Settlement of Labour Disputes - An International
Review (1986) British Journal of Industrial Relations 364, 371; A Gladstone, ‘Settlement of Disputes of
Rights’ in R Blanpain (ed), Comparative Labour Law and Industrial Relations in Industrialized Market
Economies (Kluwer Law International BV 2010) 721, 730-732.

17
questions of fundamental rights contained in Chapter IV of the 1999 Constitution. This is clear

from the provisions of sections 254C (1)(j)(i)-(iv), (2), (3) and (4) and 243(2) of the Constitution,

which re-enacted section 20(1) to (4) of the Trade Disputes Act 1976 as amended by Decree 47

of 1992. In doing this, the framers of the Third Alteration Act 2010 though it expedient to

expand the exclusive jurisdiction of the National Industrial Court to cover all labour and

employment matters77 and criminal matters arising from employment and labour relations, 78 to

extend the right of appeal from the decisions of the National Industrial Court to the Court of

Appeal to include all criminal matters arising from employment and labour relations, 79and to

empower the National Industrial Court to apply international labour standards 80 and best

practices in labour, employment and industrial relations.81

Thus, from a labour policy perspective, the aim of the Third Alteration Act 2010 is four-fold,

that is to say:

(1) To establish the National Industrial Court82 as a specialized court83 with the status of a

superior court of record84 under the Constitution of the Federal Republic of Nigeria 1999,

as amended;

(2) To confer exclusive jurisdiction on the National Industrial Court to hear and determine all

labour and employment matters,85 including criminal matters arising from employment

and labour relations,86 thereby reversing the decision of the Supreme Court in NUEE v

BPE (supra) which took away the exclusive jurisdiction of the court by a judicial fiat;

77
CFRN 1999, as amended, s 254C (1)(a) - (i).
78
Ibid, s 254C (5).
79
Ibid, s 254C (6).
80
Ibid, s 254 C(1)(h)/
81
Ibid, s 254C (1)(f).
82
Ibid, s 254A.
83
Ibid, s 255B (2) and (3).
84
Ibid, s 6(5).
85
Ibid, s 254C (1)-(4).
86
Ibid, s 254C (5).

18
(3) To create a right of appeal from the decisions of the National Industrial Court to the

Court of Appeal only on questions of fundamental rights contained in Chapter IV of the

1999 Constitution87 and in criminal matters arising from employment and labour

relations;88 and

(4) To empower the National Industrial Court to apply any international convention, treaty or

protocol which Nigeria has ratified relating to labour, employment and industrial

relations,89 thereby fulfilling Nigeria’s obligations to the international community

especially the United Nations and the International Labour Organization.90

It is submitted that by re-enacting section 20(3) of the Trade Disputes Act as amended by Decree

47 of 1992 into section 243(3) of the Constitution, the farmers of the Third Alteration Act 2010

clearly intend to shorten the hierarchy of courts in the industrial judicial system and thereby

reduce delays and costs, which is consistent with international labour standards. 91 It is often the

case that only employers are in a financial position to drag matters out and wear an opposing

employee down by means of lengthy appeals.92

Aka’ahs JSC, in his minority judgement, considered the legislative history of the Third

Alteration Act 2010 and the mischief which it was passed to remedy and held that decisions of
87
Ibid, s 243(2).
88
Ibid, s 254C (6).
89
Ibid, s 254C (2).
90
See, for example, Maduka v Microsoft Nigeria Ltd (2014) 41 NLLR (Pt. 125) 67 where the National Industrial
Court (NIC) made recourse to international conventions particularly the United Nations Convention o the
Elimination of All Forms of Discrimination Against Women (CEDAW) and ILO Discrimination (Employment
and Occupation) Convention 1958 (N0. 111) which have been ratified by Nigeria for construing the
fundamental rights of the applicant expressly guaranteed in section 254C(1)(g) of the 1999 Constitution, as
amended by the Third Alteration Act 2010; NASU v Akwa Ibom State University (2014) 46 NLLR (Pt. 150) 545
where the NIC construed section 40 of the 1999 Constitution, as amended, and section 25(1) of the Trade
Unions Act 2004, as amended, in accordance with ILO Freedom of Association and Protection of the Right to
Organize Convention 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention 1949
(No. 98); Aero Contractors v National Association of Aircrafts Pilots and Engineers & Ors (2014) 42 NLLR
(Pt. 133) 664 and A-G, Oyo State v National Association of Government General Medical and Dental
Practitioners (2014) 47 NLLR (Pt 153) 427 where the NIC construed the concept of “essential services” in
section 31(6)(a) of the Trade Unions Act 2004 as amended by the Trade Unions (Amendment) Act No. 17 of
2005, section 48(1) of the Trade Disputes Act 2004 and sections 1, 7(1) and 8(2) of the Trade Disputes
(Essential Services) Act 2004 in accordance with ILO jurisprudence on the right to strike.
91
ILO (m 76) 1-5; De Givry (n 76) 371.
92
BPS Van Eck, ‘The Constitutionalization of Labour Law (Part 1)’ (2005) Obiter 549, 551-552.

19
the National Industrial Court in relation to matters spelt out in section 254C (2), (3) and (4) of

the Constitution of the Federal Republic of Nigeria 1999, as amended, should be final since it is

a specialized court to cater for special interests and foster economic development. It is submitted

that this view is more realistic and accords with the intention of parliament. Giving reasons for

his view, Aka’ahs JSC said:

Specialized courts of limited and exclusive jurisdiction are seen as fulfilling a

growing need for expertise in increasingly complex areas of law. The resolution
of labour and employment disputes is guided by informality, simplicity, flexibility
and speed. Specialized business courts will no doubt play an important role in the
economic development of the country.93

As was contended by counsel for the respondent, section 240 is made subject to the provisions of

the Constitution. Thus, the inclusion of the National Industrial Court in section 240 is qualified

by sections 243(2) and section 254C (6) of the Constitution, as amended. The section does not

confer any additional right of appeal on any matter outside the provisions of sections 243(2) and

254C (6) of the Constitution. By interpreting sections 240 and 243 of the Constitution to include

a right of appeal over all decisions of the National Industrial Court, the Supreme Court has not

only created a right of appeal by judicial interpretation but also toppled the final jurisdiction of

the National Industrial Court over labour and employment matters, which can only be described

as a judicial coup d’état.

The Supreme Court stated that in interpreting the Constitution, where there are alternative

constructions, the construction that is consistent with the smooth working of the system, which

the Constitution, read as a whole, has set out to regulate, is to be preferred. 94 This is based on the

principle that the Legislature would legislate only to for the purpose of bringing about an

effective result.95 This approach is consistent with the “living tree” doctrine of constitutional

93
Skye Bank (n 7) 174 A-B [Aka’ahs JSC].
94
Ibid 88 F-G [Nweze JSC] relying on Dapianlong v Dariye (2007) 8 NWLR (Pt. 1036) 332; Saraki v FRN
(2016) 3 NWLR (Pt. 1500) 531 at 631-632 H-D [Nweze JSC].
95
IMB v Tinubu (2001) 16 NWLR (Pt. 740) 670; Tukur v Government of Gongola State (1989) 4 NWLR (Pt.
117) 517; Aqua Ltd v O.S.S.C. (1985) 4 NWLR (Pt. 91) 622; Ifezue v Mbadugha (1984) 14 NSCC 314; Rabiu v
The State (1980) 8-9 SC 130.

20
interpretation, which postulates that the Constitution “must be capable of growth to meet the

future.”96 In the instant case, however, the construction of sections 240 and 243 of the

Constitution in the majority decision of the Supreme Court is not consistent with the smooth

working of the industrial judicial system in Nigeria, which the Third Alteration Act 2010, read as

a whole, has set out to regulate. If it is conceded that insulating the apex court from hearing

appeals on labour and employment matters spares the litigants from the forensic drudgery and

weariness associated with appeals from the trial courts to the apex court, often spanning

decades,97 what other interpretation can bring about an effective result, consistent with the

smooth working of the industrial judicial system, than leaving labour and employment disputes

to be resolved and finalized expeditiously by the National Industrial Court and allowing appeals

to the Court of Appeal only on questions of fundamental rights and criminal matters in

accordance with the express provisions of sections 243(3) and 254C (6) of the Constitution?

Is the Court of Appeal not already inundated with appeals from the Federal and State High

Courts, Customary and Sharia Courts of Appeal, Courts Martial and other tribunals? Would the

Court of Appeal constitute special panels with experts in labour and industrial relations law and

practice to hear and expeditiously determine appeals from the National Industrial Court on merits

or would the justices of the Court of Appeal follow the common law tradition in determining

appeals on labour and employment matters especially trade disputes?

The Supreme Court also stated that the intention of the lawmakers when amending the

Constitution was not to divest the Court of Appeal of its appellate jurisdiction over decisions

involving civil matters from the National Industrial Court. 98 It is submitted that prior to the

enactment of the Third Alteration Act 2010, no appellate jurisdiction was vested on the Court of

96
Edward v Canada (1932) AC 124; NK Chakrabarti, Principles of Legislation and Legislative Drafting (3rd edn,
R Combray & Co. Private Ltd 2011) 560.
97
Skye Bank (n 7) 94 F-H [Nweze JSC].
98
Ibid 133 B-C [Peter-Odili JSC].

21
Appeal over decisions of the National Industrial Court except on questions of fundamental rights

contained in Chapter IV of the Constitution. It is, therefore, by construing sections 240 and

243(3) in line with the tenor of sections 243(2) and 254C (6) of the Constitution that the

intention of the framers of the Third Alteration Act 2010 can be discovered and advanced.

It appears that the majority of the justices of the Supreme Court were more concerned with

preserving the superiority of the Court of Appeal over the National Industrial Court and

preventing the National Industrial Court from sharing the attribute of finality with the Supreme

Court in certain areas of adjudication than giving effect to the intention of the legislature. Thus,

after referring to the Biblical story of Esau and Jacob, where the younger took over the birthright

of the elder, Ogunbiyi JSC said:

The Supreme Court is the highest court in the land, while all other courts are
subordinate to it. The Constitution cannot be interpreted to create by implication
[the National Industrial Court] as another Supreme Court in certain areas.99

The majority decision of the Supreme Court, though unfortunate, remains the law until it is

reversed through further constitutional amendment. Their lordships have already hinted that

section 36(2)(b) of the Constitution would make it unconstitutional if any Act of the National

Assembly makes the decision of the National Industrial Court, as a court of first instance, final

and conclusive.100 It is apparently for this reason that their lordships did not consider the

provisions of the Trade Unions Act,101 the Trade Disputes Act102 and the National Industrial

Court Act,103 which would have provided the historical background for the establishment of the

National Industrial Court and the mischief which the enactment of the Third Alteration Act 2010

was meant to cure. Thus, in applying the mischief rule in the interpretation of the constitutional

provisions, the Supreme Court failed to take into consideration the purpose for establishing the

99
Skye Bank (n 7) 153 D [Ogunbiyi JSC].
100
Ibid 159 C-E [Eko JSC]/
101
TUA, as amended, s 31(8).
102
TDA, as amended, ss 14, 15 and 16.
103
NICA, s 9.

22
National Industrial Court, which is the need for expeditious resolution of labour and employment

disputes, especially collective labour disputes, by experts in labour and industrial relations law

and practice. This is the mischief in Skye Bank Plc v Iwu.

The majority decision of the Supreme Court will certainly open a floodgate for appeals from the

decisions of the National Industrial Court to the Court of Appeal with attendant costs and delays

in the determination of labour disputes, which are critical to the smooth functioning of the

economy. The Court of Appeal already has an overloaded docket with appeals from the decisions

of the Federal and State High Courts, including the High Court of the FCT, 104 Sharia Court of

Appeal of a State and the FCT,105 Customary Court of Appeal of a State and the FCT, 106 Code of

Conduct Tribunal,107 Courts Martial108 and Election Petition Tribunals.109 Besides, the Court of

Appeal lack the expertise required for the expeditious resolution of labour disputes 110 for the

promotion of industrial peace and economic development.111

THE SOUTH AFRICAN EXPERIMENT

The labour courts in South Africa have suffered similar fate with the National Industrial Court of

Nigeria. The Labour Relations Act 1995 112 effectively established a three-tier labour disputes

resolution system comprising the Commission for Conciliation, Mediation and Arbitration, 113 the

Labour Court114 and the Labour Appeal Court.115

104
CFRN 1999, as amended, s 241(1)
105
Ibid, s 244(1).
106
Ibid, s 245(1).
107
Ibid, s 246(1)(a).
108
Ibid, s 240.
109
Ibid, s 246(1)(b).
110
Ibid, s 254B (3) and (4).
111
Aturu (n 46) 243.
112
Labour Relations Act No. 66 of 1995 as amended by the Labour Relations Amendment Act No. 6 of 2014
{“LRA”).
113
Ibid, s 112 established the Commission for Conciliation, Mediation and Arbitration (“CCMA”) as an
independent body whose members are approved by the National Economic Development and Labour Council
(NEDLAC) to mediate and arbitrate in industrial disputes.
114
Ibid, s 151 established the Labour Court as a court of law and equity.
115
Ibid, s 167 established the Labour Appeal Court as a court of law and equity.

23
The Labour Court is a superior court with equal authority, inherent powers and status as a High

Court.116 It has exclusive jurisdiction over disputes arising from the Labour Relations Act. 117 It

has concurrent jurisdiction with the High Court in respect of violations of fundamental rights

arising from employment and labour relations.118 It also has appellate jurisdiction over the

awards and rulings made by the CCMA.119

The Labour Appeal Court is the final court of appeal in respect of all judgements and orders

made by the Labour Court in respect of matters within its exclusive jurisdiction. 120 It has inherent

powers and standing equal to the Supreme Court of Appeal 121 in respect of matters within its

jurisdiction.122

However, the Labour Appeal Court and the Labour Court are not specifically mentioned in the

hierarchical structure of courts under the Constitution. Chapter 8 of the Constitution vests the

judicial authority of the Republic of South Africa in the following courts:

(a) The Constitutional Court;

(b) The Supreme Court of Appeal;

(c) The High Courts, including any high court of appeal that may be established by an Act of

Parliament to hear appeals from the High Court;

(d) The Magistrates’ Courts’

(e) Any other court established or recognized in terms of an Act of Parliament, including any

court of a status similar to either the High Court or the Magistrates’ Courts.123

116
Ibid, s 151(2).
117
Ibid, s 157(1).
118
Ibid, s 157(2).
119
Ibid, s 145.
120
Ibid, s 167(2).
121
Ibid, s 167(3).
122
Constitution of the Republic of South Africa, 1996, s 168(3) provides that the Supreme Court of Appeal is the
highest court of appeal except in constitutional matters.
123
Ibid, s 66.

24
In NUMSA v Metal Fry’s (Pty) Ltd124 the Supreme Court of appeal entertained an appeal from the

decision of the Labour Appeal Court. Basing its decision on the hierarchical structure of courts

under the Constitution, the court stated that the provisions of the Labour Relations Act which

confer final appellate powers on the Labour Appeal Court must be read subject to the appellate

hierarchy created by the Constitution itself.125 Accordingly, the Supreme Court of Appeal held

that it has jurisdiction to hear appeals from the Labour Appeal Court 126 with leave of the court.

However, the application for leave to appeal was dismissed on the ground that there was no

‘special circumstance’ to interfere with the decision of the Labour Appeal Court. The court

adopted the reasoning of the Constitutional Court127 in National Education, Health and Allied

Workers Union v University of Cape Town128 thus:

By their very nature, labour disputes must be resolved expeditiously and be

brought to finality so that the parties can organize their affairs accordingly. They
affect our economy and labour peace. It is in the public interest that labour
disputes be resolved speedily by experts appointed for that purpose.129

The position in South Africa is more easily understandable because the labour courts are not

included in the hierarchical structure of courts under the Constitution, which was one of the

problems encountered by the National Industrial Court of Nigeria prior to the amendment of the

Constitution by the Third Alteration Act 2010. However, the stance taken by the Supreme Court

of Appeal in NUMSA v Fry’s (Pty) Ltd (supra) is tantamount to sacrificing the development of a

coherent body of labour law in tandem with international labour standards on the altar of a

coherent hierarchical structure of courts.

124
(2005) 5 BLLR 430 (SCA).
125
Ibid, para 16 [Mpati DP and Cameron JA].
126
Ibid 33 [Mpati DP and Cameron JA].
127
Under the Constitution of the Republic of South Africa, s 167(3), the Constitutional Court is the highest court
of appeal on constitutional matters. The court has earlier asserted its appellate jurisdiction over the Labour
Appeal Court in respect of constitutional questions arising from violations of the Bill of Rights under section 23
of the Constitution. See, for example, National Education, Health and Allied Workers Union v University of
Cape Town 2003 (3) SA 1 (CC); NUMSA v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC); Dudley v City of Cape
Town (2004) 25 ILJ 99 (CC).
128
2003 (3) SA 1 (CC).
129
Ibid, para 31 re-emphasized in Dudley (n 101) para 9 (CC).

25
The current trend in both Nigeria and South Africa departs from the lofty ideals of the

expeditious and affordable resolution of labour disputes by experts appointed for that purpose,

which is in the interests of both the litigants and the broader society. 130 This state of affairs will

definitely favour the large corporations and successful businesses that can afford to incur

substantial legal costs and to whittle down the opposition’s résistance by means of relative

financial strength.131

There had been proposal in South Africa for the abolition of the Labour Court and the Labour

Appeal Court and the transfer of their functions to the High Court and the Supreme Court of

Appeal.132 This is, once again, a return to the old regime when the process of resolution of labour

disputes was characterized by lengthy appeals and lengthy delays with attendant costs.133

SUGGESTIONS FOR REFORM

The Constitution of the Federal Republic of Nigeria 1999 should be further amended to overrule

the decision of the Supreme Court in Skye Bank Plc v Iwu134 and divest the Court of Appeal of its

appellate jurisdiction over the decisions of the National Industrial Court other than on

fundamental rights and criminal matters. The Court of Appeal already has an overloaded docket

with appeals from the decisions of the Federal and State High Courts, including the High Court

of the Federal Capital Territory, the Customary and Sharia Courts of Appeal, the Code of

Conduct Tribunal, Courts Marshall and the Election Tribunals. Besides, the Court of Appeal

130
AV Niekerk, ‘Reforming the Labour Courts’ (1995) Consultus 32, 34.
131
BPS Van Eck, ‘Constitutionalization of South African Labour Law: An Experiment in the Making’
<http://www.researchgate,net/publication/303691487> accessed 19 September 2018.
132
See the Superior Courts Bill [B503-2003]. For discussion of the bill, see E Strydom, ‘Changing the Labour
Courts: The Superior Courts Bill 2003’ (2003) 13 Contemporary Labour Law 22; B Waglay, ‘The Proposed
Reorganization of the Labour Court and the Labour Appeal Court’ (2003) Industrial Law Journal (SA) 1223;
BPS Van Eck, ‘The Constitutionalization of Labour Law (Part 2)’ (2006) Obiter 20.
133
In Betha v BTR Sarmcol (A Division of BTR Dunlop Ltd) (1998) 19 ILJ 459 (SCA) it took 13 years of appeals,
cross-appeals and reviews to finalize a dispute involving the dismissal of nearly 1,000 employees; and in
Chevron Engineering (Pty) Ltd v Nkambule (2004) 3 BLLR 214 (SCA) it took 10 years for the parties to attain a
final decision in the courts. See generally Eck (n 65) 555.
134
Skye Bank (n 7) 105-106 H-A [Nweze JSC].

26
lacks the expertise135 required for the speedy resolution136 of labour disputes for the promotion of

industrial peace and economic development.137

There should be a specialized Labour Appeal Court to hear appeals from the decisions of the

National Industrial Court. This will give the judges of the Labour Appeal Court, with expertise in

labour and industrial relations law and practice, the opportunity to correct errors of law made by

the National Industrial Court. This is because the judges that sit on the National Industrial Court

are human beings and, as such, they are prone to errors. To leave such errors uncorrected is to

lay the foundation of our industrial judicial system on wrong precedents. It will also give the

litigants the benefits of a higher court with expertise in labour and industrial relations law and

practice looking at the decisions of the National Industrial Court with a view to correcting any

manifest error. It will further give the judges of the National Industrial Court the prospect of

being elevated to the Labour Appeal Court.138

The decisions of the National Industrial Court should be final on all matters pertaining to its

appellate and interpretative jurisdiction, especially matters that have gone through the dispute

settlement processes under Part I of the Trade Disputes Act before coming to the National

Industrial Court in its appellate jurisdiction. In all other matters, appeals should lie from the

decisions of the National Industrial Court to the Labour Appeal Court. The decisions of the

Labour Appeal Court should be final on all appeals from the National Industrial Court except on

violations of fundamental rights and in criminal matters in which case appeals should lie further

from the decisions of the Labour Appeal Court to the Supreme Court to avoid unhealthy rivalry

between the two courts.

135
CFRN 1999, s 254B (3) and (4).
136
Van Eck (n 90) 551-552.
137
Dudley v City of Cape Town (2004) 25 ILJ 991 para 9 (CC); National Education, Health and Allied Workers
Union v University of Cape Town 2000 (3) SA 1 paras 30-31 (CC).
138
OVC Okene and GG Otuturu, ‘The National Industrial Court and the Adjudication of Labour Disputes in
Nigeria: Agenda for Reform’ (2017) 3(1) DELSU Law Review 205-239.

27
In the meantime, the Court of Appeal should be proactive in its determination of applications for

leave to appeal against the decisions of the National Industrial Court. The justices of the Court of

Appeal should always bear in mind that the parties already had a full trial before a specialist

court and there should be no special circumstance that could warrant an appeal or further hearing

of the matter except on questions of fundamental rights and criminal matters. This is a veritable

method of giving effect to the provisions of section 243(3) of the Constitution of the Federal

Republic of Nigeria 1999, as amended by the Constitution (Third Alteration) Act 2010, for the

promotion of industrial peace and economic development of the country.

CONCLUSION

Under the Trade Disputes Act, as amended, the decisions of the National Industrial Court in its

appellate jurisdiction over trade disputes including trade union disputes 139 and its interpretative

jurisdiction140 were final except on questions of fundamental rights 141 in which appeals would lie

to the Court of Appeal and the decisions of the Court of Appeal would be final. 142 Following the

decision of the Supreme Court in NUEE v BPE (supra), which declared Decree 47 of 1992 null

and void, the Third Alteration Act 2010 re-enacted these provisions into sections 243(2) and (3)

and 254C (6) of the 1999 Constitution. However, in Skye Bank Plc v Iwu,143 the Supreme Court

toppled the final jurisdiction of the National Industrial Court by interpreting sections 240 and

243 of the Constitution, as amended, to the effect that all decisions of the National Industrial

Court are appealable to the Court of Appeal as of right on fundamental rights and criminal cases;

and with leave of the Court of Appeal in all other cases. 144 This can only be described as a

judicial coup d’état.

139
TDA, ss 4-7.
140
Ibid, ss 15-16.
141
NICA, s 9.
142
See also Trade Unions Act 2004, as amended by the Trade Unions (Amendment) Act 2005, s 31(8).
143
Skye Bank (n 7).
144
Ibid 105-106 H-A [Nweze JSC].

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The Court of Appeal is already inundated with appeals from the decisions of the Federal and the

State High Courts, including the High Court of the Federal Capital Territory 145 the Sharia Courts

of Appeal of the States and the Federal Capital Territory, 146 the Customary Courts of Appeal of

the States and the Federal Capital Territory, 147 the Code of Conduct Tribunal,148 the Election

Petition Tribunals,149 the Courts Martial and other tribunals.150 By superimposing the Court of

Appeal on the industrial judicial system, the Supreme Court has created a very lengthy, costly

and time-consuming industrial dispute resolution system comprising compulsory conciliation

and arbitration followed by adjudication by the National Industrial Court and appeals to the

Court of Appeal. This is incompatible with international labour standards, which require speedy

resolution of labour disputes by experts for the promotion of industrial peace and economic

development.151

In interpreting the constitutional provisions, the Supreme Court failed to take into consideration

the purpose for establishing the National Industrial Court, which is the need for expeditious

resolution of labour and employment disputes152 by experts in labour and industrial relations law

and practice.153 This is the mischief in Skye Bank Plc v Iwu.

The attitude of the Supreme Court towards the National Industrial Court is reminiscent of the

rivalry between Esau and Jacob or even the trade-off between Joseph and his elder brothers. This

is clear from the allegory used by the Supreme Court that it would be against logical reasoning

that a child [referring to the National Industrial Court], who is the last in the family, should seek

to take over the birthright of those who are elders. 154 The Court of Appeal and the Supreme Court
145
CFRN 1999, as amended, s 241(1).
146
Ibid, s 244(1).
147
Ibid, s 245(1).
148
Ibid, s 246(1)(a).
149
Ibid, s 246(1)(b).
150
Ibid, s 240.
151
ILO (n 76) 1-5; De Givry (n 73) 371.
152
Aturu (n 46) 243.
153
CFRN 1999, as amended, s 254B (3) and (4).
154
Skye Bank (n 7) 731 B-C [Ogunbiyi JSC].

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are the elders in the hierarchy of courts under the Constitution. This statement confirms the

feeling amongst some judges and jurists that the labour court systems ‘usurp’ the powers and

functions of the regular judiciary.155

Unless there is some urgent legislative action to forestall the spate of judicial coup d’état, to

reverse the trend in both Nigeria and South Africa through constitutional amendments, the

regular appellate courts would ensure the imminent demise of the industrial judicial system or, at

least, whittle down its relevance in the expeditious resolution of labour disputes by experts for

industrial peace and economic development. The result will be industrial instability and

economic retrogression.

155
Gladstone (n 76) 731.

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