KADUNA STATE JUDICIAL SERVICE COMMISSION & ANOR V. SANUSI MOHAMMED (2018)

Background

Sanusi Mohammed was originally employed by the Kaduna State Civil Service Commission as an Accountant Grade II in 1990. He subsequently transferred his service to the Kaduna State Judiciary, where he rose to the position of Director of Finance and Supply on Grade Level 16. In January 2012, the Kaduna State Government issued a circular directing Permanent Secretaries and Directors who had served in those positions for eight years to retire.

The leadership of the Kaduna State Judiciary initially maintained that the judiciary was an independent arm of government and that the circular could not automatically govern its officers. However, under a later leadership, the Kaduna State Judicial Service Commission relied on the circular and advised Mohammed to retire in 2015. His salary and other entitlements were stopped even though he had not submitted a letter of retirement and had not reached the applicable retirement age.

After his attempts to have the decision reversed, including an application for re-absorption into the Kaduna State Civil Service, proved unsuccessful, Mohammed commenced proceedings at the National Industrial Court, Kano Division. He sought declarations that the circular was invalid and could not lawfully be applied against him, that he remained an employee of the Kaduna State Judicial Service Commission, and that the decision to stop his work and salary was void. He also sought orders compelling the appellants to permit him to resume work and pay his outstanding salaries and entitlements, together with an injunction and damages.

The National Industrial Court granted the principal reliefs. It held that the appellants had failed to comply with the relevant laws, regulations and fair-hearing requirements governing Mohammed’s employment and that his purported retirement was null and void. The appellants appealed to the Court of Appeal. Mohammed responded with a preliminary objection challenging the competence of the appeal on the ground that the appellants had not obtained the leave required for an appeal from a decision of the National Industrial Court in a civil matter.

Issues

1. Whether an appeal from the National Industrial Court in a civil employment matter that was neither criminal in nature nor founded on an alleged breach of fundamental rights could be filed as of right.
2. Whether the appellants’ failure to seek and obtain leave before filing the notice of appeal deprived the Court of Appeal of jurisdiction to entertain the appeal.
3. What was the effect of the respondent’s preliminary objection on the continuation of the appeal?

Ratio Decidendi

The Court of Appeal held that, following the Supreme Court’s interpretation of sections 240, 243(1) and (4), and 254(5) and (6) of the Constitution of the Federal Republic of Nigeria 1999, appeals from the National Industrial Court are not invariably appeals as of right. Appeals lie as of right in criminal matters and in cases involving fundamental rights. In all other civil matters in which the National Industrial Court has exercised jurisdiction, leave to appeal is required.

The present appeal concerned the validity of Mohammed’s compulsory retirement and the interpretation and application of employment rules. It was therefore a civil employment dispute, not a criminal matter and not a fundamental-rights case. The appellants were consequently required to obtain leave before filing their notice of appeal. Since they had not done so, the purported appeal was incompetent.

The court further reaffirmed that where leave is a condition precedent to the exercise of appellate jurisdiction, failure to obtain it means that there is no valid appeal before the court. The defect is jurisdictional and cannot be overlooked or cured by proceeding to consider the substantive grounds of appeal.

Court Findings

The court described a preliminary objection as a procedure designed to bring an appeal to an end at the threshold where the appeal is incompetent or fundamentally defective. It struck out the respondent’s second objection, which incorrectly characterised the appellants’ complaint as an appeal against the allegedly unlawful retirement. The court observed that the appellants’ actual position was that the retirement was lawful and that the trial court had erred in holding otherwise.

Nevertheless, the remaining objection was decisive. Relying particularly on Skye Bank Plc v. Iwu, the court held that the constitutional position was settled: the Court of Appeal could entertain an appeal from the National Industrial Court as of right only in the constitutionally specified categories. The appeal before it did not fall within either category. The court therefore had no jurisdiction to hear the appellants’ arguments on the merits, including their challenges to the findings of the National Industrial Court concerning the circular, the composition of the Judicial Service Commission, and Mohammed’s continuing employment.

Conclusion

The preliminary objection was upheld in substance, and the appeal was struck out for want of the required leave. The decision was procedural and did not determine whether Mohammed’s retirement was substantively lawful. It established that the appellants could not invoke the appellate jurisdiction of the Court of Appeal without first satisfying the constitutional requirement for leave.

Significance

This decision emphasises the importance of distinguishing between appeals as of right and appeals requiring leave when challenging decisions of the National Industrial Court. Parties involved in civil employment disputes must obtain the necessary leave before filing an appeal; otherwise, the notice of appeal is incompetent and the Court of Appeal lacks jurisdiction. The case also illustrates the practical force of a preliminary objection: a successful objection can terminate an appeal without any examination of the substantive issues determined by the trial court.