THE 1999 Constitution was amended to give effect to the inclusion of the National Industrial Court in the list of superior courts of record and the transfer to it of jurisdiction in all employment causes as opposed to the former position where its jurisdiction was not exclusive or extensive but was basically limited to trade disputes. Like the amendment done vide Decree No.107 of 1993, this amendment contained no abatement or transitional provision. The National Industrial Court Act like the Federal High Court Act has provision for transfer from and to both the Federal and State High Courts. What happens to cases pending in the State High Courts as at the date this amendment entered into force? State High Court judges, have, as in the past, been confused regarding whether to strike out these cases or to transfer them to the National Industrial Court.

The transfer option is alleged to be based on Section 24(3) of the National Industrial Act, which provides:

Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the … High Court of a State…on the ground that such cause or matter was not brought in the appropriate court in which it ought to have been brought and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court (that is, National Industrial Court) in accordance with such Rules of Court as may be in force in the High Court or made under any enactment or law empowering the making of Rules of Court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make Rules of Court for the purposes of this subsection.

The Enugu Division of the Court of Appeal endorsed the transfer option in the most recent case of John & Ors v Igbo-Etiti Local Government Authority. In that case, the labour suit had been filed since 2002 but was yet to be tried when the third amendment entered into force. The trial judge had struck out the case and the plaintiffs had appealed on the ground that the proper thing to do was to transfer the case to the National Industrial Court. In allowing the appeal, the Enugu Division of the Court of Appeal per Okoro JCA at pages 14-15 paras H-A said:

The clear and ordinary meaning of this first part is to save all suits filed in the Federal, State and Federal Capital Territory High Courts, which ordinarily ought to have been filed at the National Industrial Court. The intendment of the clear words used therein is that such a suit shall not be struck out by the High Courts aforementioned. And to make the matter very clear, the section uses the word ‘shall’… My view is clearly that the provision insists that the suit must not be struck out by any of the courts listed therein before even if there is anything to the contrary in any enactment or law. I agree with the learned counsel for the appellants that ‘any enactment or law’ includes the High (Court Civil Procedure) Rules of Enugu State 2006. That is as it relates to the first part of the section of the enactment in focus.”

The motive or concern of the Court of Appeal is understandable. To strike out the case is to deny the Claimants fair hearing since they will be caught by limitation if they attempt to file a fresh suit in the National Industrial Court. However, it is not in the legal tradition to becloud interpretation of statutes or other legal sources with an ulterior motive, no matter how benevolent. It is not always that the law as it is, tallies with the law as it ought to be.

This is not the first time a Constitution or Constitutional Decree will be transferring jurisdiction from a state to a federal court without abatement or transfer provision. Section 24(3) of the National Industrial Court Act is in pari material with Section 22(3) of the Federal High Court Act, on which basis it had been suggested in the past, when Decree No. 107 transferred jurisdiction in some causes hitherto vested in the State High Courts to the Federal High Court, that the option of transfer was open to the State High Courts. The reaction of the apex court to that suggestion was clear and succinct: A federal statute cannot dictate to a state court what procedure to follow, so, if the constitutional decree was silent and a statute is required to give effect to it with respect to state courts, that statute must be a state law.

In the case of Fasakin Foods (Nig.) Ltd v Shosanya, the Lagos High Court had transferred a case to the Federal High Court relying on Section 22 of the Federal High Court Act especially section 22(3) thereof. The Court of Appeal set aside the order of transfer and substituted for it the order of striking out. Upon appeal to the Supreme Court, the full court of the apex court unanimously confirmed the decision of the Court of Appeal. Niki Tobi JSC said:

What is the purport of section 22(3) of the Federal High Court Act? It is a saving provision, so to say. It saves a matter duly and properly filed in a court of law from being struck out. Instead of striking out for lack of jurisdiction, section 22(3) vests in the High Court of a State the power to transfer the matter to the appropriate Judicial Division of the Federal High Court.

In the light of the practice and procedure provisions of section 233 and 2391 in relation to the Federal High Court and the High Court of a State respectively, I see section 22(3) of the Federal High Court Act, dictating to the Constitution what rule of court should be followed when a High Court of a State lacks jurisdiction of the Federal High Court. Is such a dictation emanating from a statute proper and acceptable to a Constitution? Is that consistent with the supremacy clause of section 1(3) of the 1979 Constitution? Why should a statute dictate terms for a constitution to follow? Is it not the reverse position that is consistent with section 1(3) of that Constitution? A few questions are still boiling but I think I can stop here…

I have taken some pains to go through the relevant Civil Procedure Rules of the High Court of Lagos State and I cannot place my hands on any rule vesting in a judge of the High Court power to transfer a matter to the Federal High Court. I do hope I am correct in saying that a Judge of the High Court of Lagos State can only apply the rules of court of the High Court. I do not think a Judge of the High Court of Lagos State can leave the enabling rules of his court and flirt with those of the Federal High Court by applying them. That is not correct. That is not right. That is wrong.

The Fasakin case was not cited to the Court of Appeal. As a Supreme Court decision, there is no gainsaying the fact that it is binding on the Court of Appeal. It is therefore correct to say that this Court of Appeal decision was given per incuriam.

At any rate, the wording of Section 24(3) of the National Industrial Court Act, like that of Section 22(3) of the Federal High Court Act, is clear and plain. The subsection still requires that a rule of the transferring court must be in place to permit or regulate the transfer. It only offers the subsection as a perfect excuse for making such rules if none existed hitherto. So, even if one were to ignore the Constitution, the transfer provision is at best inchoate as far as State High Courts are concerned until Rules of the State High Courts are made by the appropriate authority to regulate the matter.

• To be continued.

• Olaniyan, Barrister at Law, is Senior Lecturer and Ag. Head, Dept. of Jurisprudence and  International Law, University of Lagos,  Akoka.