By Folabi Kuti SAN
An Appeal That Should Not Have Existed?
This is a case that defies the prescribed heirarchy of the court system. Were you to ask a hundred practitioners where a civil appeal from a decision of the National Industrial Court of Nigeria (“NICN”) comes to rest, the answer will be unanimous: at the Court of Appeal, and no higher. Section 243(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) says as much, and the Supreme Court has said so repeatedly, most memorably through Nweze JSC’s leading opinion in the cause celebre Skye Bank Plc v. Iwu [2017] 16 NWLR (Pt. 1590) 24. Tell that same room that one such matter travelled all the way up the rungs of the judicial ladder to the Supreme Court, and the instinctive reaction would be incredulity, perhaps even the uncharitable suspicion that the justices who entertained it had mislaid their learning. The reflexive answer is that there is no appeal to be had at all and the matter is closed, as the Court of Appeal is the terminus (save, of course, in the limited instance of a ‘case-stated’ from the Court of Appeal to the Supreme Court for the opinion of the final court on a point of law).
And yet, in The Governor of Kogi State & Anor v. Elder Achuba Simon (Unreported Appeal No. SC/CV/638/2025, Judgment delivered May 8, 2026), the Supreme Court not only entertained an appeal traceable to an NICN suit but allowed it. Before examining how, one should pause to commend the institutional courage on display. It would have been the path of least resistance for counsel to the Appellants, led by J. B. Daudu, SAN, to treat Skye Bank v. Iwu as an impassable wall and advise their clients that the Court of Appeal’s word was final. Instead they perceived a distinction that the finality clause does not foreclose, and pressed it to the apex court at the risk of an adverse costs order and a potential reference for practitioner’s disciplinary hearing. That a firm would mount such an appeal, and that a majority of the court would receive it, is itself a small event in the development of Nigerian jurisdictional jurisprudence.
The gravamen of this note is the difference between the subject-matter of a dispute and the jurisdictional character of the order being appealed. The subject-matter here was, ultimately, a labour entitlement. But the order under challenge was not an exercise of the Court of Appeal’s appellate jurisdiction over that labour dispute at all; it was, in substance, the assumption of an original jurisdiction the Constitution never conferred. Once that is seen, the role of the Supreme Court ceases to be that of a second appellate tier in a labour matter and becomes something closer to the supervisory correction of the ‘lower’ court’s excess of power. Fortunately for the judicial system, particularly as between the court of first-instance and an intermediate appellate court, this is a function no finality clause can oust. For additional context, it is apposite to consider the background facts of the decision under review.
The Narrative
The Respondent, Elder Achuba Simon, is a former Deputy Governor of Kogi State. He sued the Appellants at the NICN, complaining that salaries, travel allowances, security votes, monthly imprest and other statutory allocations attaching to his office had been unlawfully withheld during his tenure. The reliefs he sought were predominantly declaratory. In 2020 the trial court gave judgment partly in his favour, declaring him entitled to salaries, travel allowances, security costs and certain allocations (excluding monthly imprest), holding that the Appellants lacked authority to withhold his remuneration, and awarding him ₦170,000,000 as security votes for a defined period.
Both sides appealed. In April 2024 the Court of Appeal (coram, Shuaibu, Laja-Balogun and Inyang, JJCA) allowed the Appellants’ appeal in part and dismissed the Respondent’s cross-appeal. Critically, while it affirmed the declaratory pronouncements recognising the Respondent’s entitlement to salaries, travel allowances and statutory allocations (again excluding imprest), it set aside the ₦170,000,000 monetary award and made no positive order directing payment of any specific liquidated sum. No further appeal was, or could have been, pursued from that judgment: by the aforementioned Section 243(4), it was final. The dispute should have ended there.
It did not. By a motion on notice filed in September 2024, the Respondent returned to the Court of Appeal seeking orders compelling the Appellants to pay him ₦1,070,860,138 (a figure he had computed himself from the 2017 and 2018 approved budgets of Kogi State) together with an order directing the NICN to enforce the 2024 judgment, and 10% post-judgment interest. In April 2025 a differently constituted panel of the Court of Appeal (coram, Oyewole (now JSC), Obiorah and Abang, JJCA) granted the majority of those reliefs, holding that the application was a competent post-judgment proceeding, that the court was not functus officio, and that it enjoyed concurrent jurisdiction with the trial court to entertain and enforce the judgment.
It was against that ruling – and emphatically, not against the earlier appellate judgment in the labour appeal – that the Appellants approached the Supreme Court. The Respondent met them at the threshold with a preliminary objection: the appeal, he said, arose from the civil jurisdiction of the NICN. As Section 243(4) made the Court of Appeal final, the Supreme Court was therefore without jurisdiction to hear it. The fate of that objection is where the interest of the case begins.
The Preliminary Objection and the Refusal to Decide It In Limine
The orthodox course with a jurisdictional objection is to take it first and, if it succeeds, to go no further; jurisdiction is the lifeblood of adjudication, and a court without it labours in vain however brilliantly it proceeds. The Respondent’s objection invited exactly that disposal. Had the court treated it as a self-contained threshold question – namely, “Does this appeal arise from the NICN’s civil jurisdiction?” If yes, strike it out – the appeal would have died in limine. The achievement of the lead judgment is to have seen why that tidy course or prudential guideline was, in this case, a trap.
Chioma Egondu Nwosu-Iheme JSC (in the lead, with whom Uwani Musa Abba-Ajji, Tijjani Abubakar, & Jamilu Tukur Yammama JJSC (agreed); with Obande Festus Ogbuinya JSC -dissenting) held that the jurisdictional question raised by the objection was “…inseparably intertwined with the merits of the appeal itself” (Pg. 9 of the judgment). Essentially, whether the appeal was caught by Section 243(4) depended on whether the impugned ruling truly arose from the civil jurisdiction of the NICN; and that, in turn, depended on whether the Court of Appeal, in making the quantification order, was exercising its appellate jurisdiction over the labour dispute at all, or had instead embarked on a fresh, original adjudication. But the latter is precisely the question reserved for the substantive appeal. As her Ladyship put it:
“The gravamen of the substantive appeal is whether the Court of Appeal possessed jurisdiction to entertain and grant the post-judgment application which culminated in the ruling of the 25th day of April 2025.” (Pg. 9 of the judgment)
To decide the objection in limine would therefore have been to determine the appeal without hearing it. The court declined to perform that sleight of hand, observing instead, that “…a preliminary objection should serve as a shield against incompetent proceedings, not as a sword for truncating legitimate appellate review…” (Pg. 10 of the judgment) and that constitutional questions ought not to be decided in the abstract. The objection was accordingly not taken at this stage, with the jurisdictional arguments expressly reserved for resolution within the substantive judgment. This is not, it should be stressed, a refusal to take jurisdiction seriously; it is the recognition that where the threshold question and the merits are the same question, the only honest way to answer the threshold is to hear both on the merits. It is also a vindication of a practitioner’s maxim too often honoured in the breach: where an objection is entangled with the substance of a matter, the prudent course is to take it together with the substantive matter rather than attempt to prematurely dispose of it. But I digress.
Declaratory Rights, and the Assumption of Jurisdiction
On the merits, the court framed the issue thusly:
“…the gravamen of this appeal lies in a narrow but profoundly significant jurisdictional question: whether the Court below, having earlier delivered its judgment affirming and declaring the Respondent’s entitlement to certain salaries and statutory allowances, possessed the competence to subsequently quantify and award a definite monetary sum through a post-judgment motion, or whether such exercise amounted to an impermissible assumption of original jurisdiction.” (Pg. 17 of the judgment)
The analysis then proceeds in three movements. First, the character of the 2024 judgment. That judgment affirmed the Respondent’s entitlement but did not pronounce any specific monetary figure payable. It was declaratory, and as a declaratory judgment, it:
“…merely proclaims the existence of a legal right or status; it neither commands performance nor authorizes immediate execution.” (Pg. 20 of the judgment)
