National Industrial Court and Judicial Absolutism in Nigeria, By Jiti Ogunye

Before the listing of the National Industrial Court (NIC) as a superior court of record and the definition of the Court’s jurisdiction in the 1999 Constitution of Nigeria,  a lot of persuasive arguments  were made in  the legal ( Bar and Bench) and labour circles in Nigeria in support of  it.

These arguments included the need to strengthen the Court by incorporating its establishment and composition, jurisdiction, and power  in the Constitution  like the other superior courts of record in Nigeria: High Court, Federal High Court, Customary Court of Appeal, Sharia Court of Appeal, Court of Appeal and Supreme Court. ( See Section 6 (3 & 5 [a-k])  of the Constitution. Such incorporation, it was strenuously argued, would elevate the judgments and awards of the NIC to the status of the decisions and judgments of the regular superior courts of record and give these judgments and awards the respect that would command willing abidance, and the character of enforceability that would compel unwilling compliance.

Originally, the NIC was a court of very limited jurisdiction. The jurisdiction of the NIC in civil causes and matters related to labour, trade unions, and industrial relations;  environment and conditions of work, health, safety and welfare of labour;  strike, lock-out or industrial action; and  interpretation of collective agreements, award of arbitral tribunal, terms of settlement of labour dispute, et cetera ( See Section 7 of the NIC Act, 2006). Under the NIC Act, 2006, the NIC was, subject to the right of appeal in Section 9 thereof, a final court.

That was understandable, and indeed, desirable in a trade dispute resolution system that was more arbitral and was meant to promote good labour relations and industrial harmony than it was adversarial  and adjudicatory.

Many of the matters adjudicated by the Court originated from conciliation and arbitration, under the Trade Disputes Act, Vol. 15, Cap T8, LFN,2004, where, after the failure of conciliation, a trade dispute is referred to the Industrial Arbitration Panel (IAP) by the Minister of Labour, and if the award of the IAP is objected to by any of the trade disputants, the matter is further referred to the NIC for a final resolution.

Be it noted that before the advent of the NIC Act 2006 and NIC Rules, 2007, the NIC was established in, and its powers and jurisdiction were defined by the Trade Disputes Act, Vol. 15, Cap T8, LFN,2004. In other words, the NIC, before now, was not regarded as a unit of the Judiciary, deserving of a separate Act of the Legislature, establishing it and vesting it with powers, but was seen   and operated as a court without technical rules of practice and procedure, given an existence in the Trade Disputes Act, for resolution of labour and trade disputes.

When the NIC was eventually  listed as a superior court of record and its establishment and composition,   appointment of its President and judges,  its jurisdictionpowers, constitution,  and  practice and procedure were defined in  the Constitution of the Federal Republic of Nigeria ( Third Alteration) Act No. 3 of  2010,  the pre-existing limited jurisdiction of the  NIC was not only  inordinately expanded with the NIC acquiring  additional adjudicatory powers over more subjects, ( some of  them not labour and  industrial relations connected), but also the Court, by an inexcusable lapse of legislative judgment, was made, with little exception,  a court of first and last resort, a court whose decisions and awards cannot be appealed.

By this, the court has now assumed the character of a military tribunal established  under a military decree during the dark days of the military era, which wielded the fearsome powers to try and impose penal sanctions on Nigerians, subject only to the ratification of its decisions by the Supreme Military Council, Armed Forces Ruling Council or the Provisional Ruling Council ( the legislative façade of the military despots).

In the case of the NIC, save cases in which decisions handed down are appealable, the Court’s decisions and awards are not subject to review or reconsideration  by a higher judicial authority. They are final. The judicial despotism is total.

Section 254A, 254B,254C, 254D, 254E and 254F of the Constitution, as altered,  provide for  the establishment and composition of the NIC,  the appointment of President and judges of the NIC,  the jurisdiction of the NIC,  the powers of the NIC, the constitution of the NIC and   the practice and procedure of the NIC respectively.

Section 254 C (1-6) of the 1999 Constitution, as altered ( the section on the new jurisdiction of the NIC) governs the new jurisdiction of the NIC. 254 (1) provides as follows:

Notwithstanding the provisions of Sections 251( which defines the jurisdiction of the Federal High Court) ,257( which defines the jurisdiction of the High Court of the Federal Capital Territory), 272 ( which defines the jurisdiction of the High Court of a State) and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

a)   relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

b)   relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or laws:

c)    relating to or connected with the grant of any order  restraining any person from or body from taking part in any  strike, lock out, or anyn industrial action or any conduct in contemplation of or in furtherance of a strike, lock- out or any industrial action and matters connected therewith or related thereto;

d)   relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;

e)    relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;

f)     relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relations matters;

 g)   relating to or connected with any dispute arising from discrimination or sexual harassment in the workplace;

h)   relating to, connected with or pertaining to the application or interpretation of international labour standards;

 i)     connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;

j)     relating to the determination of any question as to the interpretation and application of any-

(i)  collective agreement,

 (ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute

(iii) award of judgment of the court,

(iv)  terms of settlement of any trade dispute,

(v)   trade union dispute or employment dispute as may be recorded in a memorandum of settlement;

 (vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;

(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof

k)   relating to or connected with disputes arising from payment of or nonpayment of salaries, wages, pensions, gratuities,, allowances, benefits and any other entitlement of any employee, worker, political or office public holder, judicial officer or any civil or public servant in any part pof the Federation and matters incidental thereto;

l)      relating to-

(i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;

(ii)       appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and

 (iii)   such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly ;and

m)   relating to or connected with the registration of collective agreement; “

S. 254 (2 & 4) further provides that:

 ” notwithstanding anything to the contrary in this Constitution, the NIC shall have jurisdiction  and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations matters connected therewith; and that ” the NIC shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by an arbitral tribunal or commission, administrative body, or board of inquiry relating to , connected with, arising from or pertaining to any matter of which the NIC has the jurisdiction to entertain”

As can be seen from the items under its “exclusive judicial list“, the NIC has now gravitated from being a court of resolution of trade, labour or industrial dispute to a court that has jurisdiction to entertain anything labour, employment or industrial  matters, including child labour, child abuse, and human trafficking; and sexual harassment at the workplace!

More than  that, in a supposed Federation, where increasingly,  emphasis is being placed on true federalism and devolution of powers, all matters relating to labour, employment or industrial relations, be they in the public sector across the Country ( local, state or federal) or in the private sector, have now been unitarily consolidated under the jurisdictional power-grab of the NIC. Indeed, it is still difficult to fathom the motive or mind-set that inspired  this judicial totalitarianism.

While expanding the jurisdiction of the NIC, the National Assembly in collaboration with Houses of Assembly of the States, ought also to have expanded the right of appeal over the decisions of the NIC in tandem. It failed to do so.

By virtue of the expansion of the jurisdiction of the NIC, it is  now a court of first instance for any person or  body who wants to exercise the right to have his or her civil rights and obligations determined, in accordance with the provision of Section (6)(6) (b) of the Constitution, in causes or matters under the Court’s jurisdiction.

Thus, if a worker is sacked by his employer or any of his constitutional or employment or labour rights is breached, his recourse for redress is to the NIC, but the NIC shall be his first and last  (or his only and final) recourse, except such a worker is able to allege a breach of any of his constitutionally guaranteed fundamental rights, either by his employer before initiating an action in court or by the NIC, itself, in the course of considering and adjudicating the worker’s suit.

This exception allows the worker a limited right of  appeal to the Court of Appeal, as a final court of appeal. The bad news for the worker, however, is that the case law on labour and employment actions is replete with very negative decisions of our appeal and apex courts turning down attempts to raise issues of alleged breach of fundamental human rights ( especially issue of alleged breach of right to fair hearing) in employment or labour related matters, especially if the employment in question lacks any statutory flavour.

Under Section 243(2&3) of the 1999 Constitution, as amended by the Constitution of the Federal Republic of Nigeria ( Third Alteration) Act, 2010, there is only a limited right of appeal to the Court of Appeal ( regarding the civil jurisdiction of the NIC). Section 243(2&3)  provides that:  “(2) An appeal shall lie from the decision of the NIC as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV  of this Constitution as it relates to matters upon which the NIC has jurisdiction”; and “(3) An Appeal shall only lie from the decision of the NIC to the Court of Appeal as may be prescribed by an Act of the National Assembly”. Instructively, no Act of the National Assembly has made any prescription, widening the right of appeal from the decisions of the NIC beyond its current scope.

Before the Constitution,  by the said Third Alteration, intervened  to  define the  boundaries  of appeals from the decisions of the NIC, Section 9 of the NIC  Act, 2006 had  made provisions regarding right of appeals from NIC’s decisions as follows: “(1)  Subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999, and subsection (2) of this Section, no appeal shall lie from the decisions of the Court  to the Court of Appeal or any other court except as may be prescribed by this Act or any other Act of the National Assembly”; and “(2) An appeal  from the decision of the  Court  shall lie only as of right  to the Court of Appeal on questions of fundamental rights as contained in Chapter IV  of the Constitution of the Federal Republic of Nigeria”.  As can be seen, Section 243(2&3)  of the Constitution, as altered, is a rehash of Section 9 (1&2) of the NIC  Act, 2006.

The criminal jurisdiction of the NIC is defined by Section  254 C ( 5) of the Constitution, as altered. By the combination of Section 254C (5&6) of the Constitution, as altered,  an  appeal shall lie, as of right,  from the decision of the NIC from  criminal causes and matters arising from any cause or matter in  which jurisdiction is conferred on the NIC.

Also any person or body that is affected by a judgment of the NIC,  who, being an interested or necessary party, ought to have been made a party but was not made a party to the suit wherein the judgment was obtained,  cannot, as the law stands currently, exercise a right of appeal against the Judgment  of this Court, with which he or she may be  dissatisfied, as an ” Applicant/ Interested Party/ Appellant.”

Section 243 of the Constitution guarantees an interested party a right of appeal against a judgment emanating from a High Court of a State ( including FCT High Court) or the Federal High Court, which affects the interest of that interested party, even though that interested party was not a party to the suit in which the judgment was delivered, at the High Court or Federal High Court. But  this right of appeal, as an interested, party, does not extend to decisions of the NIC.

We make bold to declare that the right of appeal from the decision of a court or tribunal is not only a constitutional right in Nigeria, but also an internationally recognized right in judicial proceedings.  There is no court of first instance in Nigeria, save the Supreme Court of Nigeria when exercising its original jurisdiction under Section 232 of the Constitution, whose decision is final and not appealable. Not even a court martial or other tribunals, or election tribunals. See Section 240 of the Constitution on appellate jurisdiction of the Court of Appeal.

That this right can be withheld while “our legislators” (many of whom are lawyers) were saddling the NIC with this wide jurisdiction is nothing but an unpardonable  act of legislative incompetence. And this is sad for a legislative arm ( National Assembly and Houses of Assembly of the States)  that remunerates its members higher than the emoluments of other lawmakers across the globe.

Moving forward, the National Assembly and the Houses of Assembly of the States  should go back to Section 240 of the Constitution and guarantee therein  the right to  appeal all judgments of the NIC to the Court of Appeal. In the alternative, the National Assembly should establish a National Industrial Court of Appeal ( NICA), like the Sharia Court of Appeal  or Customary Court of Appeal. The decisions of the envisaged NICA should be made  appealable to  the Court of Appeal ( as a court of last resort or a semi final court of appeal) to guarantee a three-level adjudicatory process.

The exclusive or unitary jurisdiction of the NIC should also be revisited. It is submitted that the jurisdiction now vested in the NIC is in excess of Item 34 on the Exclusive Legislative List (2nd Schedule Part 1) in the Constitution: ( Labour, including  trade unions, industrial relations; conditions, safety and welfare of labour, industrial disputes, prescribing a  national minimum wage for the Federation or any part thereof ; and industrial arbitrations ).

It is obvious from Item 34 that there is nothing therein that can serve as a foundation for amending the Constitution to vest exclusive powers in the NIC to  function as the judicial alpha and omega in ordinary cases of employment in the private and public sectors, involving individuals ( and not trade unions or workers’ associations) across Nigeria, not to talk of child trafficking, child labour et cetera.

The National Assembly, rightly, may enact laws to regulate labour, trade disputes, industrial relations, national minimum wage ( Labour Act, Factories Act, Trade Unions Act, Trade Disputes Act, Wages Board and Industrial Council Act, National Minimum Wage Act, and Workmen Compensation Act, for example), but the National Assembly in conjunction  with  the Houses of Assembly of the States in the “Federation” was wrong in amending the Constitution to consolidate cases of employment  of any kind in the NIC, a part and parcel of the Federal Judiciary, regardless of whether or not the employer or employee suing or  being sued  is an agency or agent of the Federal Government. That amendment  is a major and fundamental violation of the Federalist principle.

The Constitution should not have been  so ignorantly altered. In the absence of  Industrial Court of the States or of the Federal Capital Territory, the High Courts and the Federal High Court ought not to have been  divested of jurisdiction in employment matters, only for that  jurisdiction to be vested in the almighty NIC.

During the Military era of General S. Abacha, when the jurisdiction of the Federal High Court was expanded by the Constitution (Suspension and Modification) Decree (107) of 1993, to consolidate all actions against the Federal Government or any of its agencies in the Federal High Court ( an expansion which was incorporated wholesale in the 1999 Constitution, and now contained in Section 251, which defines the exclusive jurisdiction of the Federal High Court), the matters which were brought under the jurisdictional umbrella of the Federal High Court were matters in the exclusive legislative domain of the Federal Government.

Matters which are not in the legislative domain of the Federal Government, let alone being in the exclusive legislative list, have now been consolidated under the jurisdiction of the NIC, a part of the Federal Judiciary, thereby robbing the States part of their judicial powers.

Ultimately and inevitably, the 1999 Constitution and its haphazard  and ill-conceived alterations must pave way to a people-made, truly federal constitution of Nigeria, voted on and adopted by the people in a referendum, within the framework of a sovereign national conference. 

Mr. Ogunye, a legal scholar and author, is Legal Adviser to Premium Times.  He writes from Lagos. Please give him feedback via his email address: jiti.ogunye@gmail.com


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