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)
Declaratory reliefs, as the Supreme Court has held in Okoya v. Santilli [1990] 2 NWLR (Pt. 131) 172, contain no coercive order capable of execution. On the contrary, once the declared right is infringed, fresh proceedings are needed to enforce it. The setting aside of the ₦170,000,000 award was, the court noted, no accident. Where the record contains no evidential basis for assessing a monetary sum, an appellate court cannot manufacture one through post-judgment proceedings.
Second, the true character of the motion, namely, the Respondent’s application for approximately ₦1.07 billion – a sum which was, as the court aptly put it: “never assessed, quantified, or determined” (Pg. 22 of the judgment) in the earlier appeal – was therefore not enforcement at all. The Supreme Court in applying the law to the declared facts held that:
“By affirming entitlement of the Respondent without quantifying liability on the part of the Appellants, the court declared rights but did not convert those rights into a liquidated monetary obligation. The absence of an award of a definite sum in favour of the Respondent was not accidental. Where the record contains no evidential basis for assessing monetary damages, an appellate court cannot manufacture one through post-judgment proceedings. This also reflects the reality that computation of salaries, allowances, deductions, and applicable entitlements involves evidential evaluation, documentary proof, and, where disputed, forensic assessment, and these are functions constitutionally reserved for atrial court in the circumstance of the instant case, where there was no evidence to sustain an award of an ascertained monetary sum. It follows, therefore, that the declaratory judgment in favour of the Appellant in Appeal No.CA/ABJ/CV/30/2021 required a subsequent procedural step before it could mature into an executable order. That step was the institution of appropriate proceedings before a court competent to receive evidence and determine quantum. Until such adjudication occurs, there exists nothing capable of execution. It then stands to reason that the subsequent motion seeking payment of N1,070,860,138.00 did not constitute mere enforcement. Rather, it invited the Court of Appeal to undertake fresh adjudication on quantum. Determination of monetary liability where none had previously been fixed is not execution; it is adjudication.” (Pgs. 21-22 of the judgment)
A post-judgment application remains ancillary only where it seeks to give effect to an existing executable order, or to interpret, clarify or correct a judgment; but where it invites the court to determine substantive rights not previously adjudicated, or to evaluate facts and competing computations afresh, it in the words of Chioma Egondu Nwosu-Iheme, JSC: “…ceases to be incidental and assumes the character of a new substantive proceeding, notwithstanding the procedural form in which it is presented.” (Pg. 22 of the judgment)
The motion, requiring fresh adjudication on quantum, fell squarely into the latter class: “it is, in substance, an originating claim clothed in the garb of a post-judgment motion.” (Pg. 23 of the judgment)
Third, and most fundamentally, the distinction between judicial power and jurisdiction. The Respondent’s reliance on Sections 6(6) and 287(2) of the Constitution was, as the court held, misconceived.
“Judicial power, however, is not synonymous with jurisdiction. Where a court has no jurisdiction with respect to a matter before it, the judicial basis for the exercise of any power with respect to such matter is also absent.” (Pg. 23 of the judgment)
The Court of Appeal’s original jurisdiction is confined by Section 239 to presidential and vice-presidential election questions; quantifying a disputed money claim is no part of it. In undertaking that exercise, the Court of Appeal erred. The Supreme Court, addressing this, eloquently stated thusly:
“In my view, the Court below, animated perhaps by a commendable desire to give practical effect to its earlier judgment, inadvertently crossed the constitutional boundary separating appellate jurisdiction from original adjudication. In doing so, it assumed a jurisdiction not vested in it by the Constitution.” (Pg. 25 of the judgment)
This is the hinge on which the whole appeal turns, and it deserves to be stated in its own terms. To go beyond the cursory observer who sees only a labour appeal that ought to stop at the Court of Appeal, is to recognise that what the Supreme Court was reviewing was not the labour dispute but an inferior court’s exercise of a power it did not possess. The commentator here admits that the example may not be vivid, or all-too-related, but nonetheless posits that the intervention (of the Supreme Court) here is akin to the power of a competent court of record judicially reviewing the act of an executive, namely, the correction of an act done in excess of jurisdiction. There is a meaningful difference between a body that misapplies a power it genuinely holds and a body that acts where it holds no power at all. The former may be unappealable and beyond complaint – there must, after all, be an end to litigation – and as such, buckles under the weight of the ‘finality’ theory. However, the latter is ultra vires, and so long as there exists a higher court of record within the system, that higher court can step in to right the wrong. For want of a better description, it is a policy court intervention. A finality clause merely distributes the right of appeal on a subject matter dispute. It does not, however, license a penultimate – notwithstanding how ‘final’ it may be – court to invent jurisdiction and then shelter the invention behind its own finality. It certainly will not lurk within Oputa JSC’s celebrated dictum (in Adegoke Motors Ltd v Adesanya (1989) 13 NWLR (Pt. 109) 250 at 274) that “we are final not because we are infallible, rather we are infallible because we are final” – itself an admission of fallibility that the Constitution reserves exclusively for the aptly-named Supreme Court.
Why the Court of Appeal Is Not the Enforcing Court
The lead judgment’s treatment of Section 287(2) supplies the justification for confining the Court of Appeal to adjudication and denying it the enforcement role it claimed. That provision directs that the decisions of the Court of Appeal shall be enforced by courts with subordinate jurisdiction to that of the Court of Appeal. The implication, the court held, is unavoidable, as the Court of Appeal itself is not a court of enforcement. This is similarly represented in the Cosntitution, where adjudication was consciously framed distinctly from enforcement at the appellate level.
It is worth reminding the reader that the execution of judgments, notwithstanding the court originating the particular order, is governed not by its own Rules, but by the Sheriffs and Civil Process Act, Cap. S6, LFN 2004 and the Judgment (Enforcement) Rules. The point bears directly on the present facts. The Court of Appeal could not transmute its own declaratory judgment into an executable monetary award, because it is neither constitutionally the enforcing court nor evidentially equipped to be the trial court. As the court held in the lead judgment:
“The proper course, consistent with constitutional structure and procedural justice, was to remit or direct the parties to pursue quantification of entitlements before the National Industrial Court, the court of first instance constitutionally equipped to receive evidence, evaluate competing computations, and enter an executable monetary judgment, if proved.” (pg. 25 of the judgment)
Suffice it to say that each court is held to its own constitutional station. Therefore, while the Respondent’s real grievance at holding a declared entitlement with no money is genuine, the answer to it is not the conscription of an appellate court into the role of trial court and sheriff combined. It is instead a properly constituted quantification action before the NICN.
The apex court should therefore be commended for taking a hardline policy stance, which would only serve to strengthen our local jurisprudence.
The Dissenting Judgment
My Lord Ogbuinya JSC, evidently unwilling to succumb to the “tyranny of the majority” (a la Ejiwunmi JSC’s line from his Lordship’s famous dissent in Abacha v. The State (2002) 11 NWLR (Pt. 779) 437 at 593), wrote a learned and richly textured dissent. The dissent is, on any view, a tour de force of style and citation. However, it ‘fails’, for want of a better term, at its destination.
Ogbuinya JSC reasoned that the Respondent’s motion was, in form and substance, a post-judgment application, because its reliefs orbit around the enforcement of the 2024 appellate decision and trace their paternity to it. From that characterisation, everything else followed.
- A post-judgment application is an incident of the court’s appellate jurisdiction;
- The doctrine of functus officio is flexible and “takes to flight” in the face of such an application;
- Therefore the Court of Appeal acted intra vires its limited appellate jurisdiction.
Furthermore, if the ruling was an exercise of appellate jurisdiction over a matter arising from the NICN’s civil jurisdiction, then Section 243(4) made it final and the Supreme Court had no jurisdiction. Therefore, the appeal was incompetent and liable to be struck out.
The error lies not in any of these propositions taken alone but in the order in which they were deployed. To reach the conclusion that the appeal was incompetent, the dissent had first to decide that the Court of Appeal’s ruling was a valid exercise of appellate (not original) jurisdiction. But that – as the majority correctly held– is the very substantive question the appeal was brought to determine. In other words, the dissent resolved the preliminary objection by resolving the merits, while purporting only to dispose of the objection. It is not, with respect, one of those appeals in which the objection can be taken cleanly in limine, because the substantive complaint is not severable from it; the two are not bifurcated. By collapsing them, the dissent answered the merits sub silentio and in the Appellants’ disfavour, without ever submitting them to the open analysis the majority undertook.
The in limine resolution of the objection to the Supreme Court’s jurisdiction appeared to do no more than restate – incredibly legalistically – the settled proposition that NICN appeals must end at the Court of Appeal. This attempt at a mechanical application of the law is a far cry from the harder, more forward-looking work of the majority, in asking whether the order under appeal was an exercise of the jurisdiction the finality clause protects at all. The dismissive stance, short short-circuiting an unfamiliar route to the Supreme Court – a policy court whose stature in policing jurisdictional excess is, if anything, growing – appears to have led the dissent past the profound constitutional and statutory issue lying in plain sight. An intermediate, albeit final court on a subject matter, cannot, by self-donation, assume a jurisdiction the Constitution withholds. When it nonetheless does, the Supreme Court, in its infallible because it is final glory is duty-bound to correct it.
All said, it is nonetheless pertinent to accept that the potential power of a dissent in the near future cannot be undermined. The conventional dissent accepts the discipline of the majority’s framing and then argues that – on the law as it is, or as it ought to become – the result should differ. It tends to state the law and points to a better future for it. Afterall, Lord Atkin, L.J’s celebrated dissent in the case of Liversidge Vs. Anderson (1942) A.C 206 at Pg. 244 on the need for the courts to review executive actions that may infringe on individual liberties, was later upheld by the English House of Lords. Most notably, with Lord Diplock in I.R.C v Rossminister Ltd agreeing that “the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right”. Time will tell if when the opportunity presents itself again, on a similar factual pattern, it would be as interesting, as Nnameka-Agu JSC once wondered aloud to see if the selfsame court will (finally, on this occasion) uphold an earlier minority opinion of one of its justices.[1]
Conclusion
The lasting significance of Achuba Simon is its insistence that finality attaches to lawful decisions, wrong as they may be. Section 243(4) ends the appellate road for genuine labour appeals. What it does not do, however, is convert the Court of Appeal into a court of unlimited competence whose every order, however far outside its constitutional warrant, is beyond review. The case stops being a simplistic labour matter the moment one asks what the impugned order actually was. By holding that the quantification of a disputed sum was an original adjudication the Court of Appeal had no power to perform, and that enforcement belongs to the trial court armed with the sheriff and not to the appellate bench, the Supreme Court kept faith with the constitutional division of labour between adjudication and execution.
Two notes of commendation are in order. The first is to the bench: the majority took a considered policy stance, on the record, that the apex court will not allow a finality clause to be used as a charter for jurisdictional overreach, even at the cost of returning a sympathetic litigant to the proper forum. The second is to the bar: the Appellants’ counsel had the discernment to see a real distinction where most would have seen only a closed door, and the courage to test it at the highest level.
- Folabi Kuti SAN is the Lead Partner at Union Attorneys (Incorporating KutiLegal). [email protected]; 08023419644
[1] In his valedictory address as a retiring Justice of the Supreme Court, delivered Monday 10th May, 1993.
The post A Critique Of The Decision In (Unreported Appeal No. SC/CV/638/2025) The Governor Of Kogi State & Anor V. Elder Achuba Simon: When The ‘Final Court’ Is Not The Final Word. appeared first on TheNigeriaLawyer.
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