University of Nigeria

UNIVERSITY OF NIGERIA

SCHOOL OF POST GRADUATE STUDIES FACULTY OF LAW

PH.D, THESIS

TOPIC: ANALYSIS OF THE NATIONAL INDUSTRIAL COURT ACT 2006 UNDER THE NIGERIAN CONSTITUTION

STUDENT:

KENNETH IKECHUKWU,AMADI.

REG. NO: PG/Ph.D/06/45623 SUPERVISOR: PROF. G.O.S. AMADI.

Title Page

ANALYSIS OF THE NATIONAL INDUSTRIAL COURT ACT 2006 UNDER THE NIGERIAN CONSTITUTION

BY: KENNETH IKECHUKWUAMADI.

PG/Ph.D/06/45623

BEING A THESIS SUBMITTED TO THE UNIVERSITY OF NIGERIA SCHOOL OF POST GRADUATE STUDIES, FACULTY OF LAW FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY (Ph. D) IN LAW

SUPERVISOR: PROF. G.O.S. AMADI.

OCTOBER, 2014.

DECLARATION

I HEREBY DECLARE that apart from references to other peoples’ works, which have been duly acknowledged, this thesis is the result of my research and this thesis has neither in while nor in part been presented for another degree elsewhere.

KENNETH IKECHUKWU,AMADI.

(AUTHOR)

iii

CERTIFICATION

I hereby certify that this research was carried out by Kenneth IkechukwuAmadi a postgraduate student in the Department of Public and Private Law with Registration Number PG/Ph. D/06/45623, for the award of Doctor of Philosophy (Ph. D) in Law. This work is original and has not being submitted in part or in full for the award of any other Diploma or Degree of this or any other University.

...... Kenneth IkechukwuAmadi

...... Professor G.O.S Amadi (Supervisor)

...... Dr. C. A. Ogbuabo PG Coordinator

DEDICATION

This research work is dedicated to the memory of my late father, Mr. Samuel OnyensoAmadi.

ACKNOWLEDGEMENTS

I hereby acknowledge all those who contributed in one way or the other to the successful completion of this research work, most especially, my supervisor, Professor G.O.S. Amadi for his painstaking efforts in going through this work. Dr. Chris Anyanwu, Dr. Jude Odinkonigbo and Dr OkeyUmahi all of the Faculty of Law, University of Nigeria, Enugu Campus for their constructive criticisms of this work.

My amiable wife Mrs ChiomaIke-Amadi, and my children Sommie, Obinna, Ikechukwu, Akuoma and Eziuche for their understanding and encouragement.

I am grateful to Hon. Justice B. A. Adejumo, President of the National Industrial Court of Nigeria, and Hon. Justice B. B. Kanyip of the same Court, for their intellectualism and resourcefulness in their numerous lectures and seminar papers which were of immense help and use in this research.

I am equally grateful to my colleagues, Hon. Justice E. N. N. Agbokoba, Dele Peters, A. O. Anuwe, O.O. Oyewunmi, Peter O. Lifu for their encouragement, and to my research assistants Barr. AnslemEjiogu and Barr.UgbonmaNwaogwugwu, my secretary Comfort Nwokpo, registrar Mrs Chika Duru, and too many others whose names, I cannot mention here, I remain deeply grateful and appreciative.

TABLE OF NIGERIAN CASES

Abacha v Fawehinmi (2006) 6NWLR (Pt. 660) 288-289

ACT Ltd v Ufondu (1997) 10 NWLR (PT 523)169 C.A

Abenga v Benue State Judicial Service Commission (2006) 14 NWLR (Pt. 1000) 601

Abomeli v NRC (1995) 1NWLR(Pt. 372) 452

Achineku v Ishagha (1988) 4NWLR (Pt.80) 411

Adisa&ors v The Military Administrator of Oyo State &ors 2008 LPELR 3562

African Continental Bank Plc. v Nwigwe (2011) 7NWLR (Pt.1246) 380

Agbasi v Ebikerefe [1997] 4 NWLR (Pt. 502) 630.

Agbahomoro v Edieyegbe [1999] 3 NWLR (Pt. 594) 170

AG Federation v ANPP [2003] FWLR (Pt. 168) 839.

Agu v Ikewuibe (1991) 4 SCNJ 56

Akinola v University of Ilorin (2004) 11NWLR (Pt 885) 616

ACSN v National Orientation Agency &ors (unreported) suit no: NIC/PM/2003 delivered on September 27, 2007

Agayi v Texaco Nig. Ltd. (1987) 3 NWLR (Pt.62) 577

AG Rivers State v AG Bayelsa State &ors (2013) 3NWLR (Pt. 1340) 123

AG, Osun State v NLC (Osun State Council) & 2ors.( unreported) suit No. NICN/LA/275/2012 delivered on December 19, 2012.

Afribank (Nig) PLC v KunleOsisanya (2000) 1 NWLR (Pt. 642)598.

Ajilemele v Oparah (1998) 9NWLR (Pt. 567)587

Anakwenze v Onyekwlu [1995] 5 NWLR (Pt. 294) 502

Amaefule v State (1988)2 NW LR (Pt 57) 156

Adigun &Ors v Attorney General of Oyo State (1987) 1 NSCC 545

Akinyanju v University of Ilorin (2005) 7 NWLR (Pt 923) 87

Amadi v NNPC (2000)5 W RN 47

vii

ASCSN v INEC & 2ors. (2005) 3 NLLR (Pt 7)1

Alao v ACB Ltd (2006) 6 SC (Pt. 1)

AUPCTRE v FCDA &ors (2008) 10 NLLR (Pt. 26) 304

Asusu&ors v Ajewole&ors (2009) 14 NLLR (Pt. 39)434

Amalgamated Union of Public Corporations Civil Service Technical and Recreational Services Employees v Agricultural and Allied Workers Union of Nigeria (unreported) suit no: NIC/17/1995

Amalgamated Union of Public Corporations ,Civil Service Technical and Recreational Employees v The Minister of Federal Ministry of Employment, Labour and Productivity (unreported) Suit no: NIC/2M/2006 delivered on 26 February 2007.

Amaefule v State [1988] 2 NWLR (Pt. 57) 156

Attorney General Oyo State v Nigeria Labour Congress Oyo State Chapter &ors (2003) 8NWLR (Pt.821) 1.

Attorney General of Oyo State v Nigeria Labour Congress &ors. (2004) 1 NLLR (PT3) 591

Attorney General of Enugu State v National Association of Government General Medical and Dental Practitioners and ors. (unreported) suit no: NIC /EN/16/210

Anthony AdekunleYekanmi&ors v NITEL &anor (unreported) suit No.NIC/7/2008 delivered on 15thJuly 2008

Akinola v Vice Chancellor University of Ilorin (2004) 11 NWLR (Pt 885) 616.

AlhajiLateefAkinsola v NURTW &ors . (unreported) suit No. NIC/LA/333/2012 the ruling was delivered March 20th 2013

Attorney General of the Federation v National Association of Government Medical &Dr. J.N. Chukwani (unreported) Suit No. NIC/EN/16/2010 delivered on 20th June 2011.

ASCON v Government of Rivers State &ors (2009) 14NLLR (Pt.38) 259

ASCSM v INEC & 2 ors. (2006) 5NLLR (Pt. 11) 75

Akpononu v Beakart (2000) 3NSCOR 186

A.T.A Poly v Maina (2005) 10NWLR (Pt. 934) 487

Auto Import Export vAderayo (2003) ALL FWLR (Pt 140) 1689

Ayawa v University of Jos (2000)6 NWLR (Pt 659) 142

viii

Basil OsitadinmaMbanefo&ors.v Judicial Service Commission of Anambra State (unreported) Suit No. NIC/EN/7/2007 delivered June 30, 2011.

Benson &ors.v NASU &ors., Suit No. NIC/56/2007(unreported)

Blessing IfeanyiOkpoko v Zenith Bank PLC (unreported) Suit No. NICN/LA/167/13

British- American Insurance Co. Ltd. v Edemasillo [1993] 2 NWLR (Pt 277) 567.

Caribbean Trading and Fidelity Corporation v NNPC [1991] 6 NWLR (Pt. 197) 352

Chemical and Non-Metallic Products Senior Association v BBC [2005] 2 NLLR (Pt. 6) 446

Chevron (Nig.) Ltd. v LD (Nig.) (2007) 16 NWLR (Pt. 1059) 168

Coco-Cola Nig. Ltd and 2 Ors v Mrs.TitilayoAkinsanya (2013) 36 NLLR(Pt.109) 338.

Comrade (Evang.) OlowoPreye Grace v PENGASSAN & 3 Ors. (unreported) Suit No. NIC/EN/1/2011 delivered on July 5, 2011

Dike Geo Motors Ltd. &Anor v Allied Signal Inc&Anor [2006] ALL FWLR (Pt. 302) 901

Dikwa v Modu [1993] 3 NWLR (Pt. 280) 170

Dr.AdeyinkaAdeyosolaOlujoke& 5 ors.v M-CRED Hospital Ltd. (unreported) Suit No. NIC/LA/504/2012 delivered on February 12, 2014

Dr.Eguatu v Egwuatu [1992] 4 NWLR (Pt 237) 594

Dr.TaiwoOloruntoba-Oju& 3ors.v Prof. Abdul-Rahem& 3ors. (2009) 39 NSCQR 105

DysTroccaValesesia& Co Ltd. v Alakija (unreported) Suit No. NICN/LA/319/2013 delivered on May 19, 2014.

Ekanem v Umanah (2007) ALL FWLR (Pt. 367) 928

Effigong v Ebong (2006) 18 NWLR (Pt. 1010) 109

Eimskip Limited v Exquisite Industries Nig. (2003) 13 NSQR (Vol. 13) 489

Ezennah v Atah (2004] ALL FWLR (Pt. 202) 1858

Faladu v Kwo [2003] 9 NWLR (Pt. 826) 643 at 657

Fawehinmi v Abacha [2000] 6 NWLR (Pt. 160) 228

FGN v Adams Oshiomhole (2005) 1 NWLR (Pt. 907) 414

FGN v Oshiomhole (2004) 1 NWLR (Pt. 678) 339

FolashadeOdunsi v Mainstreet Bank Nig. Plc (unreported) Suit No. NICN/LA/455/2012 delivered on March 3, 2014

George Uzoaru v Dangote Cement PLC NICN/LA/26/201 delivered on July 2013

Gezoji&Anor v Kulere (2011) LPELR 895

G.M.C (UK) Ltd. v Medicair WA Ltd.(1998) 2 NWLR (Pt. 536)

Godwin Tsosanwumi v Golf Agency and Shipping Nig. Ltd. (unreported) Suit No. NIC/14/2006 delivered on 14th Nov. 2007.

Head of the Federal Military Government and C-In-C v The Military Gov. Mid-Western State of Nig. &anor.Exparte Ambrose I. Obiyan (1973)12 SC 23

Hodo and ors.v Chevron Texaco Nigeria (2005) 2 NLLR (Pt. 5) 200

Hotel and Personal Service Senior Staff Association v Tourist Company of Nigerian PLC (unreported) Suit No. NIC/14/2002 delivered on 2 October 2004.

Ifezue v Maduagha (1984) I SCNLR 427

Ilodibia v Nigerian Cement Company Ltd. (1997) NWLR (Pt. 512) 174

INEC v Association of Senior Civil Servants of Nig. &anor (unreported Suit No. CA/A/154/05 delivered on Nov. 19, 2007.

Ilepeju v PZ Cussons Nig. PLC (unreported) Suit No. NIC/LA/406/12 delivered on April 29, 2014

Isaiah v Shell Petroleum Ltd. (2001) 5 SCNJ 220

Ita v Nyong [1994] NWLR (Pt. 318) 56

Joy Maskew&ors.vTidex Nig. Ltd. (unreported) Suit No. NIC/Im/98 ruling delivered on June 8, 2009

Joy Maskew&ors.vTridex Nig. Ltd. (unreported) Suit No. NIC/Im/98 delivered on Nov. 25, 2008

Judicial Service Commission of Cross River State &anor v Dr (Mrs.) Asari Young (2013) 11 NWLR (Pt. 1364) 1 at 85

Kalango&Ors.vDokubo&Ors (2003) 15 WRN 32.,(2004) 1 NLLR 180

Kano State v Fanz Construction Company Ltd. [1990] 6 SCNJ 77

Kurt Severinsen v Emerging Markets Telecommunication Service Ltd. (2012) 27 NLLR (Pt. 78) 374

Ladoja v INEC (2007) 31 NSCQR 242

Lagos State JSC v Kaffo (2008) ALL FWLR (Pt. 418) 327

Longe v FBN PLC (2010)6 NWLR (Pt. 1189) 1 SC

Lucky Ihanza&anor v. Global Fleet Oil & Gas Limited (unreported) Suit No. NIC/LA/217/2011 delivered on March 27, 2013

Maiwada&ors.v ASU &ors. [2011] 24 NLLR (Pt. 69) p. 339

Made v The Nig. Immigration and Prison Service Board & 2 ors. (unreported) Suit No. NICN/LA/31/2013 delivered on 4th June, 2014

Madukoluv Nkemdilim (1962) 1 ALL NLR 587

Makwe v Nwukor (2001) 14 NWLR (Pt. 733) 356

Maritime Workers Union of Nig. and 10 Ors.v Nigeria Labour Congress and 17 Ors. (2005) 4 NLLR (Pt. 10)

M.H.W.U.N. v Minister of Health and Productivity &ors. (2005) 17 NWLR (Pt. 953) 120

Mrs.FolarinOrekaMaiya v The Incorporated Trustees of Clinton Health Access Initiative Nigeria &Ors. (unreported) Suit No. NIC/ABJ/13/2011 delivered on 11th of November 2011.

Mrs.Olayinka H. Oduntan v. Diamond Bank PLC &Ors. (unreported) Suit No. NIC/LA/507/2012 delivered on March 18, 2014

Mrs. Gloria IjeomaNwaokoma v First Bank PLC (2014) 50 NLLR (Pt.166) 357.

Mrs.TitilayoAkinsanya v Coco-Cola Nig. Ltd and 2 Ors., (2012) 28 NNLR(Pt.79) 72

Mrs.FolarinOreka Maya v The Incorporated Trustees of Clinton Health Access Initiative Nig. &Ors. (unreported) Suit No. NICN/LA/359/012 Judgment delivered on June 19, 2013

MISR Nig. Ltd. v Oydele [1966] NCLR 191

Mr.Iroko A. Lateef v Global Fleet Oil & Gas Limited (unreported) Suit No. NIC/LA/222/2011 delivered on May 13, 2013.

Mr.OlubayoAdeyemi v Global Fleet Oil & Gas Limited [2013] 35 NLLR (Pt. 105) 384 NIC

Mr. Tom Basset v Krane-Grinaker LTA Construction Ltd. and ors.(unreported) ruling Suit No. NICN/LA/200/2011 delivered on April 28, 2014.

National Union of Electricity Employees and 1 or v Bureau of Public Enterprise [2004] 1 NWLR (Pt. 678) 339 at 335

National Union of Road Transportation Workers v Ogbodo (1998) 2NWLR (Pt. 537) 189

National Union of Hotels and Personal Services Workers (NUHPSW) v National Union of Foods, Beverage and Tobacco Employers (NUFBTE) and another (2004) 1 NLLR (Pt. 2) 286.

National Union of Hotels and Personal Service Workers v WhassanEurest Nigeria Ltd. (2005) 2 NLLR (Pt. 4) 145

National Union of Hotel and Personal Service Workers v Palisco Nig. Ltd. and anor (unreported) Suit No. NIC/15/2000 delivered on April 27, 2006

National Union of Hotels and Services Workers v Hotel Diplomat Ltd. and anor (2005) 2 NLLR (Pt. 5) 244

National Union of Hotels and Personal Service Workers v Alitum Hotel and Catering Ltd. (2005) 4 NLLR (Pt. 9) 162

National Union of Local Govt. Employees v Medical and Health Workers Union of Nigeria (2005) 2 NLLR (Pt. 4) 166.

NBA Ltd v NET [1986] 3 NWLR (Pt. 31) 667.

NEPA v Ugbaja (1998) 5 NWLR (Pt. 548) 106

NDIC v Okem Ltd. &anor (2004) 10 NWLR (Pt. 880) 107 at 182 – 183

Nebedum v Labisi (2001) 1 NWLR (Pt. 693) 94.

Nigerian Cement Company Ltd. v Nigeria Railway Corporation [1991] 1 NWLR (Pt. 220) 747.

Nigerian Industrial Development Bank v. Olatoni Industries Ltd [1995] 9 NWLR (Pt. 419) 338

Nigeria Merchant Navy Officers and Water Transport Senior Staff Association v Ocean Fisheries (Nig.) Ltd. and anor (2005) 2NLLR (Pt. 6) 490

Nigerian Union of Pharmacist, Medical Technologist & Professions Allied to Medicine v ObafemiAwolowo University Teaching Hospital Complex Management Board (unreported) Suit No. NICNLA/424/2013 delivered on February 12, 2014

NNPC v CLIFCO (2011)46 NSCQR 114 at 134

Nnorom v. NLC and Ors. (unreported) Suit No. NIC/2/2007 delivered on 13th February 2013.

NUT Niger State v C. O. S. S. T. Niger State (2012)10 NWLR(Pt. 1307) 89

Nwaogwuowu v President FRN (2007) ALL FWLR (Pt. 389) 1355

Nwaoboshi v Miladi, Delta State (2003) 11 NWLR (Pt. 831) 305

xii

Obilor v Briston Helicopters Nig. Ltd. (2011) 25 NLLR 22

Obiuweubiv CBN [2011] 7 NWLR (Pt. 1247) 465 SC

Odogwu v Odogwu [1990] 4 NWLR (Pt. 143) 224

Ogeniran v Egbetola (1997) 5 KLR 937

Ogunyale&ors v Globacom Nig. Ltd. (2009) 14 NWLR (Pt. 39) 399

Ogunyade v Shunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247

Ojukwu v Governor, Lagos State (1986)1 NWLR (Pt. 18) 621

OJiako v A. G. Anambra State (2000) 1 NWLR (Pt. 641) 375

Okechukwu v Okechugwu (1989) 3 NWLR (Pt. 108) 234

Okoye v Nig. Construction and Furniture Co. Ltd. (1991) 7 SCNJ (Pt. 2) 365

Olawunmi v Mohammed [1990] 4 SC 40

Olawoe v Olanrewaju [1998] 1 NWLR (Pt. 534) 455

Oluruntoba-Oju v Abdul-Raheem (2009) 13 NWLR (1157) 83

Oyefeso v Omoghehin [1991] 4 NWLR (Pt. 187) 596

Oyeyipo v Oyinloye (1987) 1 NWLR (Pt. 50) 356

Oyo State Govt v Alhaji Bashir Apapa&ors. (unreported) Suit No. NIC/36/2007 delivered on July 15, 2008

Petro Jessica Enterprise Ltd. v Leventis Technical Co. Ltd. (pt. 244) 675, 693

Peter N. Odike v Werag Nig. Ltd and anor (unreported) Suit No. NICN/LA/217/2012 delivered on March 2014.

Registered Trustee of Ifeloju v Kuku [1991] 5 NWLR (Pt. 189) 65 at 79

Senior Staff Association of Statutory Corporation and Government Owned Companies Nigeria Ports Authority Branch &Ors. v Senior Staff Association of Statutory Corporations and Government Owned Companies unreported Suit No NIC/8A/2001

SGS In Section Services (Nig.) Ltd. v Petroleum and Natural Gas Staff Association of Nigeria (PENGASSAN) unreported Suit No. NIC/3/2000 (Summarized at pp 428 – 430 of digest of Judgments of NIC (1978 – 2006)

xiii

Shena Security Co. Ltd. v AfroPak (Nig.) Ltd. &Ors. (2008) 4 – 5 SC (Pt. 11) 117

Sken Consult v Ukey (1981) SC 6 at 26

Standard Chartered Bank Nig. Ltd. v Braithwaith (2013) LPELR 20814

State v Ilorin [1983] 1 SCNLR 94 at 110

Suleiman &ors.vAbubarkarTafawaBelewa University, Bauchi&ors (unreported) Suit NO. NICN/Jos/14/2012 delivered on August 8, 2012

Sule v Nigerian Cotton Board [1985] 2 NWLR (Pt. 5)17

The Mgt. of Nestle Nig. PLC. Ilupeju, Lagos v NUFBTE (unreported) Appeal No. CA/670/2009, Judgment delivered March 8, 2013

The Provost AlvanIkoku College of Education v Amuneke [1991] 9 NWLR (Pt. 213) 49

The Registered trustees of National Associations of Community Health Practitioner of Nig. &ors v Medical and Health Workers Union of Nig. (2008) 2 NWLR (Pt. 1072) 572

The Shell Petroleum Development Co & 5Ors.vNwaka&anor (2003) 6 NWLR (Pt. 815)

UBA v Edet (1993) 4 NWLR (Pt. 287) 288

Udoh and others v Orthopedic Hospital Management Board (1993) SCNJ (Pt. 2) 436

Ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 367

Umanah v Attah (2006)17 NWLR (Pt. 1009) 503

Usman Dan Fadio University v Krans Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 36),306

Western Steel Workers v Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284.

West African Examination Council v AkinolaOladipoAkinkunmi

(2008) 9 NWLR (Pt.1091) 151 (2008) 4 S.C. 1.

YetundeAbdlrahaman Mariam v University of Ilorin Teaching Hospital Management Board and Anor (unreported) Suit No NICN/LA/359/2012 delivered June 19, 2013

TABLE OF FOREIGN CASES

Allen v MC Alpline& Sons Limited (1968) ALL ER 543, 346 – 547

Ali v Jarathne (1951) A.C. 66

Collins v Collins [1856] 28 Ch 186

xiv

TABLE OF STATUTES

Constitution of the Federal Republic of Nigeria 1979

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010

Interpretation Act, Cap 123 Laws of Federation of Nigeria 2004

Labour Act Cap L1 Laws of Federation of Nigeria 2004

National Agency for Prohibition of Trafficking in Persons and other Related Matters Act.

National Industrial Court Act 2006

National Industrial Court Rules 2007

Sheriff and Civil Processes Act Cap S19 Laws of Federation of Nigeria 2004

Trade Dispute Act Cap 432 Laws of Federation of Nigeria 1990

Trade Disputes (Arbitration and Inquiry) (Lagos) Ordinance of 1941

Trade Unions Act, Cap T9 LFN 2004

African Charter on Human and Peoples Rights 1986

FOREIGN STATUTES

1) Employment Tribunals Act 1996 (UK)

2) The Employment Appeal Tribunal Rules 1993.(UK)

3) Articles 2(5) and (2)6 of the Constitution of Kenya 2010

TABLE OF ABBREVIATIONS

A. C. = Appeal Cases

ALL N.L.R. = All Nigeria Law Report

Ch.D = Chancery Division

EPZ = Export Processing Zone

NBA = Nigerian Bar Association

N.M.L.R = = Nigeria Monthly Law Report

N.W.L.R. = Nigeria Weekly Law Report

S.C. = Supreme Court Report

WACA = West African Court of Appeal

NIC = National Industrial Court

NICA = National Industrial Court Act 006

NICR = National Industrial Court Rules 2007

TDA = Trade Dispute Act

NJLIR = Nigerian Journal of Labour Law & Industrial Relations

DJNIC = Digest of Judgment of National Industrial Court

N.L.L.R. = Nigerian Labour Law Reports

NICR = National Industrial Court Rules

PENGASSAN = Petroleum and Nutural Gas Senior Staff Association of Nigeria

NILR = Nigerian Industrial Law Report

AG = Attorney General

ACELR = Appellate Court Employment Law Report.

TUA = Trade Union Act.

IAP = Industrial Arbitration Panel

ILS = International Labour Standard

ASCSN = Association of Senior Civil Servants of Nigeria xvi

AUPCTRE = Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees

BFE = Bureau for Public Enterprises

CBN = Central Bank of Nigeria

FWLR = Federation Weekly Law Reports

ILO = International Labour Organisation

MHWUN = Medical and Health Workers Union of Nigeria

NJC = National Judicial Council

NLC = Nigeria Labour Congress

NLLR = Nigerian Labour Law Reports

NNPC = Nigeria National Petroleum Corporation

NUBIFIE = National Union of Banks, Insurance and Financial Institutions

Employees

NUEE = National Union of Electricity Employees

NURTW = National Union of Road Transport Workers

NWLR = Nigerian Weekly Law Reports

RTEAN = Road Transport Employers Association of Nigeria

WRN = Weekly Reports of Nigeria

xvii

Table of Contents

Cover Page ……………………………………………………………………… i

Title Page …………………………………………………………………………ii

Declaration ……………………………………………………………………….iii

Certification ………………………………………………………………………iv

Dedication………………………………………………………………………....v

Acknowledgement ………………………………………………………………..vi

Table of NigeriaCases ……………………………………………………………vii

Table of Foreign Cases ……………………………………………………………xv

Table of Statutes ………………………………………………………………….xvi

Table of Abbreviations ………………………………………………………… xvii

Table of Content ……………………………………………………………….. xix

Abstract: …………………………………………………………………….. 1

CHAPTER ONE: GENERAL INTRODUCTION 1:1 Introduction ………………………………………………… 2 . 1.2 Statement of the Problem …………………………………………….

1.3 Research Question…………………………………………………… 8

1.4 Research Methodology ……………………………………………… 8

1.5 Objectives of the Study ……………………………………………… 9

1.6 Significance of the Study …………………………………………... 9

1.7 Literature Review ……………………………………………….. 10

1.8 Organizationof Work……………………………………………… 21

xviii

CHAPTER TWO: HISTORICAL DEVELOPMENT OF RELATED LAWS AND THE NATIONAL INDUSTRIAL COURT (NIC)

2.1. The Origin of Labour Courts …………………………………………. 24

2.1.1. Jurisdiction…………………………………………………… 24

2.1.2 Composition ………………………………………………….. 25

2.1.3 Practice and Procedure…………………………………………… 25

2:1:4 Appeals ……………………………………………………… 26

2.2 Historical Development of Related Laws in Nigeria ……………. 26

2.2.1 Labour Act ……………………………………………. 27

2.2.2 Trade Unions Law ……………………………………… 28

2.2.3 Trade Disputes Act ………………………………………… 29

2.2.4 The National Industrial Court (NIC)………………… 30

2.2.5 The Constitution (Third Alteration Act, 2010) …… …… 32

CHAPTER THREE: LEGAL AND STATUTORY FRAMEWORK OF THE NATIONAL INDUSTRIAL COURT (NIC)

3.1. Establishment and Constitution ………………….. ……………… 36

3.1.1. The Composition of the National Industrial Court (NIC) ………. 37

3.1.2. Status ……………….. ………………………….. 45

3.1.3. Status of the President and Other Judges of the National Industrial

Court (NIC)……………………….. ………………. 51

3.1.4. Judicial Divisions …………… …………………. 52

3.1.5. Composition and Assignment of Cases of the National Industrial

Court (NIC) ……………………………. …………. 55

3.2. Transfer of Cases ……………….. ……………….. 57

3.2.1. Intra National Industrial Court (NIC) …………… 57 xix

3.2.2. Inter Court Transfer. ………… . ……….. 58

3.3. Amendment ………………….. …………….. 61

3.4. Interpretations ……………. ……… …………………. 61

CHAPTER FOUR: THE SCOPE OF THE JURISDICTION OF THE NATIONAL INDUSTRIAL COURT (NIC)

4.1. Statutory Provisions …………………. ……………….. 64

4.2. Original/Appellate Jurisdiction ………………….. ………………. 72

4.3. Procedure for Settlement of Disputes by the Trade Dispute Act … 73

4.3.1 Mediation ……………… …………………….. 73

4.3.2 Conciliation …………. ……………….. ………. 74

4.2.3. Arbitration ………… ………………… ………………… 74

4.2.4. Board of Enquiry …………….. ………………. . 75

4.4. Jurisdiction over Strike Matters ………………. …………………. 85

4.4.1. Political Strikes. …………………… ……………….. 87

4.5. The Interpretative Jurisdiction. ……………….. …………………. 90

4.5.1. Collective Agreement …………………….. …………………. 92

4.5.2. Justiceability of Collective Agreements. ………………. 94

4.5.3. Interpretation of the Industrial Arbitration Panel Awards and

the Judgments of the National Industrial Court…….. 97

4.5.4. Interpretation of Trade Union Constitution……………….. 99

4.6. Appeals Over Arbitral Award………………. ………………………… 100

4.7. Special Powers of the National Industrial Court …………………… 102

4.8. Enforcement Provisions …………………… ………………………. 103

4.8.1. Injunctive Remedies/Judicial Review ………………………. 107

4.8.2. Injunctions …………………...... …………………………. 107

4.8.3. Interlocutory Injunctions ………………………. …………… 109

4.8.4. Mandatory Injunctions …………………….. …………………. 109

4.8.5. Judicial Review ……………………….. ………………….. 109

4.8.6. Mandamus and Certiorari ………………… …………………… 109

CHAPTER FIVE THE EXPANDED JURISDICTION OF THE NATIONAL INDUSTRIAL COURT (NIC)

5.1. Jurisdiction Over International Treaties ……………………………. 115

5.2. Jurisdiction to Entertain Issues Bordering on Sexual Harassment and Discrimination at Workplace …………………… …………….. 119

5.3. Jurisdiction on Child Abuse and Human Trafficking…………… 120

5.4. Jurisdiction over National Minimum Wage ……………………… 121

5.5. Jurisdiction over Criminal Matters ……………………. ……. 122

5.6. Jurisdiction Over Free Trade Zone ……………….. …… 124

5.7. International Best Practice on Labour and Industrial Relations …….. 124.

5.8 Jurisdiction over Private Individual Employment Disputes ……………… 132 .

5.9 Fundamental Human Rights Matters before the National Industrial Court……… 140

CHAPTER SIX PROACTIVE PROVISIONS FOR TRIALS AT THE NATIONAL INDUSTRIAL COURT(NIC)

6.1. Use of Assessors ……………………. ………………………………… 144

6.2. Referees …………………………… ………………………….. 146

6.3. Arbitration: Meaning And Scope ……………………… …………….. 148

6.4. Mediation/Conciliation ………………….. ……………………………. 150

6.4.1. What Is Mediation? ………….. ………… …………. 151

xxi

6.4.2. Advantages of Mediation …………… ………………….. 152

6.5. Negotiation …………………. ……………………..……………. 153

6.5.1. Negotiation Strategies ………………………………………….. 153

6.6. Rules of Court …………………………………………………………….. 157

6.6.1. Assignment of Cases …………………… …………………….. 158

6.6.2. Commencement of Action ……………….. …………………… 160

6.6.3. Originating Summons …………… …………………………….. 161

6.6.4. Referrals ……………………….. …………………………… 161

6.6.5. Service of Processes ………………. …………………………… 163

6.6.6. Trial on Record ……………………. ……………………………. 164

6.6.7. Principles of Equity ………………………. ……………….. 167

6.7. Appeal Over the Decisions of the NIC …….. …………… 168

6.7.1. Justification ……………………. ……………………. 173

6.8. Constitutional Provisions …………………. …………………………. 179

CHAPTER SEVEN: GENERAL CONCLUSION

7.1. FIRST OBJECTIVE …...... ………………………….. 183

7.1.1 Findings ……………………….. ………………….. 184

7.2. Second Objective ………………………… …………………… 184

7.2.1 Findings ………………….. ……………………. 185

7.2.2 Draw Back ……………………… ………………… 188

7.3. Third Objective ………………… …………………………… 189

7.3.1 Findings…………………. ………………………….. 189

7.4 Fourth Objective ……………………….. …………………….. 190

xxii

7.4.1. Challenges …………………… ………………………

7.4.1. Recommendations 192

7.5 Addition to the Body of knowledge ………………….. ……………. 194

7.6 Conclusion …………………….. …………………….. ………… 195

BIBLIOGRAPHY

Books …………. ………………… ………………….. 195

Journal Articles ………………. … ………………. …… ……….. 199

Book Chapters ………………. . …………………. 203

Newspaper Articles ……………… ……………… …………………… 204

Unpublished Papers …………………. …………………… …………….. 205

Internet Sourced Materials ………………… ………………………. 207

Appendix 1

The Constitution (Third) Alteration Act 2010

Appendix 11

National Industrial Act 2006

xxiii

ABSTRACT

The National Industrial Court (hereinafter referred to as the NIC) was established in 1976 by the Trade Disputes Decree No 7 of 1976 with jurisdiction to settle trade disputes, the interpretation of collective agreements and matters connected therewith. There were identifiable lapses in the status, powers and jurisdiction of the NIC that impacted negatively on its operations; the jurisdiction of the Court which was expressed to be exclusive was shared with the Federal and State High Courts, the Court lacked competence to make declarations and orders of injunction and thus seen as an inferior court. This state of affairs gave impetus to the enactment of the National Industrial Court Act 2006 (hereinafter called the NIC Act 2006) which granted the NIC a superior court status, with exclusive civil jurisdiction to deal with labour and other related matters. This NIC Act 2006 generated a lot of controversies in terms of the exclusive jurisdiction and superior court status granted the Court by the Act, in view of the constitutional provisions thereof. Consequently, the Constitution (Third Alteration) Act 2010 was enacted to remedy the situation. The perceived problem that motivated this study is the heated controversy generated by the inadequacies of the NIC Act 2006.The objective of this work is to ascertain whether the Constitution Third Alteration Act 2010 addressed those inadequacies of the NIC Act 2006 and achieved the goal of institutionalizing the NIC as a specialised court for the resolution of labour labour disputes and other related matters, employment, industrial relations, and other related matters. The method employed was to examine the provisions of the NIC Act 2006 and that of the Constitution (Third) Alteration Act 2010. This work found out that though the Constitution (Third) Alteration Act 2010 corrected some of the lapses of the NIC Act 2006 and expanded the jurisdiction of the NIC, there still exist loopholes identified among others to include the inadequate Constitution of the NIC by at least 13 (thirteen) judges and lack of prescription by an Act of the National Assembly for appeals to the Court of Appeal over its decisions. It was recommended among others that the NIC should be constituted of not less than 37 Judges and that the National Assembly should make a prescription for appeals to the Court of Appeal from the decisions of the NIC.

CHAPTER ONE

GENERAL INTRODUCTION

1.1. BACKGROUND TO STUDY

The National Industrial Court, was established in 1976, by virtue of the Trade Disputes Decree

No. 7 of 1976 (hereinafter referred to as the TDA) which, Decree was later amended by the

Trade Disputes (Amendment) Act 1992.1 Later, it was included as Cap 432 in the 1990 edition of the laws of the Federation of Nigeria with jurisdiction to settle trade disputes, the interpretation of collective agreements and matters connected therewith.2

There were many obvious and identifiable lapses in the status, powers and jurisdiction of the

NIC then that impacted negatively on its operations. The first, being the fact that, neither the

1979 nor the 1999 Constitution included the NIC as one of the courts in the country. Granted that section 19(2) of the TDA1990, which was inserted by Decree 47 of 1992 provided that, the

NIC shall be a superior court of record. Lawyers and litigants disregarded these provisions by asking the Federal High Court to judicially review decisions reached at the NIC in a number of cases.3 The second is the referral requirement in commencing proceedings in the NIC which, means that, only the Minister of labour could initiate a case in the court in its original jurisdiction by way of referrals.4 The President of the NIC was required to preside over all the

1. See Decree No. 47 of 1992. 2 Now CAP T8 Laws of the Federation of Nigeria 2004. 3 See Adejumo B.A; The National Industrial Court of Nigeria: Past, Present and Future; being a paper delivered at The Refresher Course Organised for Judicial Officers of between 3 - 5 years post appointment by the National Judicial Institute, Abuja on March 24, 2011, Kanyip B.B; The National Industrial Court :The Journey so Far., being text of a paper delivered at 2008 Annual / Delegates, Conference of the Nigerian Bar Association which held from 23rd - 28th August 2008, at the International Conference Centre Abuja. See also SGS Inspection Services (Nigeria) Limited v Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) (1978 – 2006) DJNIC Pg. 424 at 430 4 sections 14 and 17 of the TDA. 2

sittings of the Court.5 The practical effect of this was that adjudication of cases was totally dependent on the discretion and availability of the President. This means that, whenever, for any reason, the President was unable to sit, even if the Court could form a quorum, the case must be adjourned. The full import of this anomaly was brought to the fore in 2002 when the

Court lost its President. For almost a year, the Court could not sit as a successor was not appointed.6

There was also the problem of dual procedures for the appointment of the President and other

Judges of the Court. The NIC was the only Court then in the country with dual control over the mode of appointment of its judges, the President of Nigeria appoints its President on the recommendation of the Federal Judicial Service Commission7 while the other members were appointed by the President of Nigeria on the recommendation of the Minister of Labour.8

Apart from the foregoing, there was also the problem of the extent and scope of the subject- matter jurisdiction of the NIC. Though, Decree No. 47 of 1992 seemed to have brought within the purview of the NIC inter and intra union disputes, the courts held that, for the NIC to have jurisdiction over inter and intra union disputes, the disputes must qualify as trade disputes.9

Case law also created a lot of problems for the NIC in that it was held that the NIC then could not grant declaratory and injunctive reliefs.10 The implication is that although, the TDA,

5 Section 19(4) of the TDA.(now repealed). 6 Adejumo B.A.. The National Industrial Court of Nigeria: Past, Present and Future;op.cit 7 Section 19 TDA 8 Section 25 ibid 9 See Kalango & ors v Dokubo & ors (2003) 15 WRN 32, (2004) 1NLLR 180 10 For instance, in Western Steel Workers v Iron & Steel Workers, (1987) 1 NWLR (Pt. 49) 284 the Supreme Court held that Section 15 of the TDA 1976 conferring jurisdiction on the National Industrial Court did not include jurisdiction to make “Declaration and to order injunction”. The Court of Appeal also in Kalango & ors v 3

established the NIC as a superior court, it lacked the essential powers of a superior court as it could not grant declarative or injunctive reliefs. The cumulative effect of the confusion created as to the scope of the jurisdiction of the NIC was that, several courts at the same time had concurrent jurisdiction on the subject matters in which NIC was supposed to have exclusive jurisdiction.11 This state of affairs resulted in conflicting decisions, absence of clarity and uniformity in the decisions of the various courts on virtually the same issue.12 This gave rise to a culture of forum shopping by litigants. This totally stalled the ideals for which the NIC was created in the first instance. A good reference point is FGN v Oshiohmole.13 The case was commenced at the FCT High Court and it was held that the Nigerian Labour Congress has power to call out workers to embark on strike.

On appeal to the Court of Appeal, the Court ruled that the High Court of the Federal Capital

Territory lacked the jurisdiction to entertain the matter being one of the matters under item 34 of the Constitution, that is; labour/trade disputes. The Court of Appeal then referred the case to the Federal High Court for determination. The Federal High Court, among others, relying on

Dokubo & ors (supra) held that “considering the nature and scope of the jurisdiction and powers of the National Industrial Court as clearly spelt out in the Act, the court lacks competence to make declarations and orders of injunction of the type sought by the Plaintiffs/Respondents in the instant case" see further the case of Oluruntoba - Oju v Abdul-Raheem (2009) 13NWLR(1157)83. 11The Federal High Court, the 36 High Courts of the States of the Federation, the Federal Capital Territory High Court and the NIC were held to have concurrent jurisdiction in the resolution of labour and trade disputes, See Attorney-General Oyo State v Nigeria Labour Congress, Oyo State Chapter & Ors (2003) 8 NWLR 1 at pp.33. See also Abidogun Taiwo NIC: The Challenge of Forum in Grievance/Dispute Resolution (3), Vanguard Friday, July 25, 2008, P.3 12 For example, at the High Courts, collective agreements were only binding if incorporated into the conditions of service of the employees, see Nwanjagu v Baico (2000) 14 NWLR (Pt. 687) 356, Afribank (Nig.) PLC v Kunle Osisanya (2000) 1 NWLR (Pt. 642) while at the NIC they were legally binding , in the case of National Union of Civil Engineering Construction, Furniture and Wood Workers v Beten Bau Nigeria Ltd and Anor, (2008) 11 NLLR 1 at 18-19. The NIC held that the decisions referred to by the respondent to justify that collective agreements are only binding in honour when not incorporated into the condition of service were common law decisions and as such distinguishable from the present case based on statutory provisions of the TDA, a law the NIC is bound to give effect to. 13 (2004) 1 NWLR (Pt. 678) 339 at 355. 4

section 251 of the Constitution held that it lacked jurisdiction to entertain some aspects of the case. It, however, heard the matter on other grounds. With these conflicting decisions, it became clear that, there was a lacuna in the law as to which court, would have jurisdiction over trade disputes under item 34 of the Constitution. It therefore, became imperative for the

National Assembly to find solution, to the problem in consonance with section 4(2) of the

Constitution. To correct these states of affairs, the National Assembly enacted the NIC Act

2006 as “an Act to provide for the establishment of the National Industrial Court as a superior court of record and for related matters.” It vested the Court with exclusive jurisdiction over all labour related matters.14 The NIC Act 2006 is divided into six (6) parts, with fifty-five (55) sections.

However, the enactment of the NIC Act 2006 generated a lot of controversies in view of the obvious conflicts in the provisions of the Act with the provisions of the 1999 Constitution. The first conflict was on the superior court of record status granted the NIC by the NIC Act 2006,15 second was on the exclusive civil jurisdiction granted the court over labour, including trade unions, industrial relations and other related matters,16 third is the finality in the judgments of

14See generally, Adejumo B.A. The National Industrial Court of Nigeria: Past, Present and Future, ibid see foot note 3(supra). Adejumo B.A. The National Industrial Court has Exclusive Jurisdiction on Labour Matters, The Guardian , Tuesday, January9, 2007. Awomolo Adegboyega; National Industrial Court Act 2006:A Progressive Development. The Guardian, Tuesday, July 25 2006 P.70, Abidogun Taiwo, Only NIC can assume jurisdiction on Labour disputes, The Punch, Monday, January 21,2008. 15 See Amaechi B. Chiafor; Reflections on the Constitutionality of the Superior Court of Record Status and Exclusive Jurisdiction Clauses of the NIC Act 2006; NJLIR.Vol.1, N0. 3, (2007) p. 290., Ejere O.D: Further Reflections on the Constitutionality of the National Industrial Court (NIC) Act 2006.NJLIR Vol.1 No4 (2007) p.60.,Woruji I.N.E; National Industrial Court Act 2006 in Annotated Nigerian Labour Legislations, Bimbola Atilola, ed. Hybrid Consult, Lagos 2008. It is important to note that the aforesaid controversies as regards the status of the court is because of the glaring conflict between section 1 (3) (a) of the NIC Act 2006 which stated that the court shall be a superior court of record and the provisions of section 6 (3) the 1999 Constitution, which categorically stated that the courts listed in section 6 (5)(a)-(i) to which that section relates shall be the only superior courts of record in Nigeria and the NIC was not one of the courts so listed. 16 See Ejere O.D: The High Courts’ Jurisdiction to hear and determine inter and intra union disputes is not completely ousted by the Trade Disputes Act as amended and the 2006 NIC Act, NJLIR Vol.1No.2(2007) p.56., 5

the Court which are not subject to appeal to any court unless matters related to fundamental human rights.17 The greatest of these problems is the one touching on the jurisdiction of the court as granted by the NIC Act 206. It was a recurring issue until the decision of the Supreme

Court in The National Union of Electricity Employees and 1 Or v Bureau of Public

Enterprises18 when the Supreme Court finally confirmed that the NIC is a subordinate Court and that it had no exclusive jurisdiction over the matters assigned to it under section 7 of the

NIC Act 2006 and other enabling Acts on that behalf.

The Supreme Court held thus:

The least that has changed is that State High Court under section 272 now has

power to deal with trade disputes it has previously lacked. It means therefore

that Decree No. 47 of 1992 arrogating to the National Industrial Court a

superior court of record without due regard to the amendment of the provisions

of section 6(3) and (5) of the 1999 Constitution which has listed the only

superior Courts of record recognized and known to the 1999 Constitution and

the list does not include the National Industrial Court; until the Constitution is

amended, it remains a subordinate court to the High court.

Woruji I.N.E: The NIC Act 2006 and the Jurisdictional Conflict in the Adjudicatory Settlement of Labour Disputes in Nigeria,NJLIR,Vol,1 No.2(2007) p.32-34.Gbenga Ojo: Legal Anatomy of the NIC Act 2006; the Need for Legislative Rethinking, NJLIR Vol.2,No.2 (2008) p.1 and Alatise Taofeeq Nasir: Obstacles Before National Industrial Court: ThisDay Newspaper, Tuesday August 24, 2010, Leaders & Company Ltd Abuja Vol.15,No5602 P.19.It is imperative also to state that under Section 251 of the Constitution, the Federal High Court has exclusive jurisdiction in any matter where the Federal Government or any of its agencies is a party to a suit while a state High Court enjoyed unlimited jurisdiction to all cases and matters subject to the exclusive jurisdiction granted to the Federal High Court as provided under Section 251 aforesaid. The question then was a situation in which the Federal Government is party in respect of a labour dispute, is it the Federal High court under Section 251 of the Constitution or The National Industrial Court under Section 7 (1) of the NIC Act that granted exclusive jurisdiction over labour matter in the NIC ?, See further the case of Oloruntoba Oju & Ors v Dopamu,(2008) All FWLR Part 411,810 where the court held that such jurisdiction is exercisable by the Federal High Court only 17 See Section 9 of NIC Act 2006. 18(2010) 7 NWLR (Pt. 1194) 538 6

This decision dealt a heavy blow on the existence and operation of the National Industrial

Court. The decision in effect meant that all the State High Courts, the Federal High Court and the High Court of the FCT shared concurrent jurisdiction with the National Industrial Court on the subject-matters on which it sought to have exclusive jurisdiction. It equally meant that all these courts could review the decisions of the NIC on application by either of the parties. In essence, the basis for the establishment of the court was effectively put on hold for the time, that decision lasted as lawyers and litigants had a field day, employing all the avenues provided by that decision to stall cases.19

These conflicts which were impediments to the realization of the set objectives of the NIC Act

2006, necessitated various discourses and calls for solutions to enable the NIC achieve its set objectives.20 It was in response to those calls that a bill for the amendment of the relevant constitutional provisions was introduced and passed by the National Assembly. President

(Dr.) Goodluck Jonathan gave his assent to this passed bill on the 4th day of June 2011, which is now known as the Constitution (Third Alteration) Act 2010. This research will examine that

Act, with a view to asserting whether its intention of institutionalizing a specialized court with exclusive civil jurisdiction to expeditiously and judiciously deal with labour matters has been achieved.

19 Adejumo B.A. ibid. 20 See footnotes 15 and 16 above 7

1.2 STATEMENT OF THE PROBLEM

The statement of the problem shall bother on the fact that, in spite of the coming into force of the NIC Act 2006, and the Constitution Third Alteration Act 2010,21 there still exist loopholes in these laws which, if filled, will provide better, fair and just administration of labour matters in Nigeria.

1.3 RESEARCH QUESTION

This research will seek to address the question:

Whether the NIC Act 2006 and the Constitution (Third Alteration) Act 2010 achieved their goals?

1.4 RESEARCH METHODOLOGY

The methodology of research will embrace the qualitative approach with recourse to primary source materials based on relevant statutes, such as, the NIC Act 2006 itself, the 1999

Constitution of the Federal Republic of Nigeria as amended by the Constitution Third

Alteration Act 2010. Also, secondary source materials based on Law Reports, Case Laws and the Received English Law made up of the Rules of Common Law and the Principles of Equity and Statutes of General Application which were in force in England as at 1st January 1990 will be used. In addition, Books of Authority, Encyclopedias, Journals and periodicals, Digests,

Legal Dictionaries, News papers, Treatise and internet sourced materials will be very helpful.

21The Third Alteration Act 2010 expanded the powers and jurisdiction of the court, and constitutionally provided for the status of the court as a superior court of record having all the powers of a high court. 8

1.5 OBJECTIVES OF THE STUDY

The set objectives of this research are as follows:

i. To understand how the NIC has developed over the years.

ii. To highlight some of the challenges that faced the NIC which necessitated the

enactment of the NIC Act 2006 and appraise whether they were resolved by the

Act.

iii. To identify the intention the Constitution Third Alteration Act 2010 and

appraise whether the intention was realized.

iv. To identify the overall challenges of the NIC from the provisions of the NIC

Act 2006 and the Constitution (Third) Alteration Act 2010 and to make

recommendations on how to overcome those challenges.

1.6 SIGNIFICANCE OF THE STUDY

This topic is important in view of the apathy towards the NIC in resolution of labour disputes.

Thus the NIC which ordinarily ought to provide comprehensive, conclusive and acceptable platform and mechanisms for the resolution of those labour disputes is not usually approached by the disputants, necessitating a research in order, to proffer probable solutions to remedy the situation.

1.7 LITERATURE REVIEW

The origin of statutory provisions for the settlement of labour disputes in Nigeria, has been traced to the Trade Disputes (Arbitration and Inquiry) Ordinance, later Act, which was enacted

in 1941.22 That Act was applicable in Lagos only. The limitation to Lagos in its application then, according to Esan,23 was because up to January 1966, both the National and Regional

Assemblies could pass laws relating to labour matters simultaneously, but from 1979, when labour matters was listed as item 32 on the Executive Legislative list of the Constitution.24 The

Federal Government took over legislative matters pertaining to labour. The 1941 Act, was later repealed by the Trade Disputes Decree No 7 of 1976, which decree was included in 1990, edition of the laws of the Federation of Nigeria as Trade Disputes Act Cap 432 and now Cap

T8 Trade Disputes Act, Laws of the Federation of Nigeria 2004, which Act is applicable to the whole country.

This Decree introduced for the first time, the NIC. The learned author aforesaid, used the term

“trade dispute” which may be used to mean the same thing as industrial dispute or labour dispute,25 He defined trade disputes in line, with the definition of the term as contained in the

Trade Disputes Act26 as “any dispute between employees and employers or between employees which is connected with the employment or non employment or the terms of employment and physical conditions of works of any person.” Sam Erugo27 opined and rightly too, that the two vital aspects of that definition are: (i) the parties, which must be a worker/employee or workers/employees on one side or on both sides of the dispute and (ii) the subject matter of the dispute which must be connected with (a) employment or non employment (b) terms of

22 Uvieghara, E .E ., Labour Law in Nigeria. Malthouse Press Ltd, Lagos 2001,p.415. 23 Esan R.S.M; Legal Framework of Industrial Relations in Nigeria ;in Otobo D. and Omoole M. (ed.) Readings in Industrial Relations in Nigeria. Malthouse Press Ltd. Lagos,(1987) pg.205. 24 Listed as item no. 32 of the Second Schedule to the 1979 Constitution and item no.34 on the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria as amended. 25 see Bryan A. Garner; Black’s Law Dictionary, Thomson West, USA (2008) 8th edition pg.505. see also John S. James: Stroud’s Judicial Dictionary of words and phrases; Sweet & Maxwell Ltd. London 1986 Vol.5 p.2662. 26 Section 48. 27Erugo Sam, Introduction to Nigerian Labour. Mikky Communications, Lagos 1998 p.184. 10

employment or (c) conditions of works of any person, see Niki tobi JCA (as he then was) in

National Union of Road Transportation Workers v Ogbodo28 and Adekeye JCA (as he then was) in Attorney General of Oyo State v Nigeria Labour Congress and others.29 The above definition is not only narrow, but limited, in scope and application when compared with the definition of the term in other jurisdictions, for instance in India, the term is defined as: “any dispute between employers and workmen, or between workmen and workmen or between employers which is connected with the employment or non employment, or the terms of employment or the conditions of labour, of any person.”30

From the foregoing, while the Nigerian definition is limited to dispute regarding the physical conditions of work, the use of the phrase “the terms of employment, or the conditions of labour, of any person” the India definition includes not only the physical conditions but also the mental, social and economic conditions of work.

Not only that, while a dispute between two sets of employers on both sides of a dispute regardless of the subject matter is not a trade dispute in Nigeria, in India a dispute between employers and employers which is connected with employment is a trade dispute. The afore- stated definition of the term in India has been described as wide by Srivastava.31

28 (1998) 2NWLR(Pt.537)189 29 (2004) 1N.L.L.R.(Pt.3) 591. 30 Section 2(g) of the Trade Unions Act 1926 as amended by the Trade Union Amendment Act of 1947,see generally: S. N. Misra & S.K Misra; Labour &Industrial Laws,(2007) 23rd edition, Central Law Publications, Allahabad, India p.273. 31 Srivastava, S.C.: Industrial Relations and Labours, Vikas Publishing House PVT, New Delhi 2007,5th ed.pg.66 11

It is with a view to address the obvious limitations in the definition of industrial disputes under the Trade Disputes Act that, the NIC Act 2006, enlarged that definition, as contained in the

Trade Disputes Act, to be similar with the definition of the term in other jurisdictions.32 It must be noted here, that, in conferring jurisdiction on the NIC, the NIC Act 2006 itself, in Section

7(1)(i) specifically, avoided the use of the terms 'trade disputes', and 'intra' or 'intra' union disputes, rather the Act used the word 'Labour', including trade unions and industrial relation matters.

It is important to point out here that, in the body of the NIC Act 2006, that term 'trade disputes' was not used anywhere, in all the sections. Rather, the terms; 'labour disputes' and

'organizational disputes' were preferred and used.33 Kanyip B.B.34 argued that this is deliberate given the diverse conception of the term ‘trade dispute’ by especially the courts who refused to recognise that ‘trade dispute’ is a term of art in industrial relations law and practice. However, the NIC Act 2006, did define the term 'trade disputes', 'inter' and 'intra' union disputes which terms were not used in Act, without defining the terms 'labour disputes', and or 'organizational disputes' which terms were actually used in the Act. The question is what then constitutes

'labour disputes', 'trade union disputes', 'organizational disputes' and 'industrial relation matters'? It is arguable that, though the definitional enlargement of the 'term trade disputes' under the NIC Act 2006, is a welcome development, but that enlargement, is of less utility value since that term was not used in the body of the Act.

32Compare section 54 of the NIC Act 2006 with section 29 of the Trades Disputes Act 1974 of Britain, see also I. T. Smith et al; Industrial Law. Butterworths, London 1980,pg 326. 33 Section 7(1)(c) 34 Kanyip B.B.; An Overview of the Scope of the Expanded Jurisdiction of the National Industrial of Nigeria. Being a paper delivered in a one day public Enlightenment Symposium on Status, Power and Jurisdiction conferred on the Court by the Constitution of the Federal Republic of Nigeria (Third Alteration Act)2010.Lagos Airport Hotel, Ikeja, Lagos, Monday, August 15,2011. 12

As noted above, the NIC was first introduced by Section 14(1) of the Trade Disputes Decree

No 7 of 1976. Under Section 20 (1) of that Decree, the NIC was granted original jurisdiction to the exclusion of any other courts, to hear and determine trade disputes and allied matters. By an amendment in 1992, the jurisdiction of the ordinary courts to hear and determine inter and intra union matters were ousted thereof.

Amadi argued that, the Trade Disputes (Amendment) Decree 1992, seemed to confer exclusive jurisdiction to the NIC in respect of matters involving inter or intra union disputes. He disagreed to the view that, the case of Udoh & others v Orthopedic Hospitals Management

Board35 established the principle that: “such inter or intra-union matters as to the discipline of erring members concerning interpretation of the rule book fall within the exclusive jurisdiction of the NIC.”36

He rightly argued that, since a trade union constitution is a contract between members and the union that, the ordinary courts have and should be allowed to exercise jurisdiction on contractual matters involving trade unions. However, the foregoing argument can no longer be sustained in view of the express provisions of the NIC Act 200637 and the expanded jurisdiction of the NIC by the Constitution of the Federal Republic of Nigeria (Third

Alteration) Act 2010.38

35 (1993)7 SCNJ (Pt.2)436. 36 Amadi G.O.S;A Legal Guide to Nigerian Trade Unions, ibid, at page 57 37 Section 7(1)(iv) granted the NIC jurisdiction over disputes relating to any trade union constitution. 38 See section 254C of the 1999 Constitution as variously amended. 13

In any case, the terms 'inter' and 'intra-union' disputes were not defined by the Trade Disputes

Decree of 1976, and its amendment of 1992. However, the NIC Act 2006, defined the term39

'inter union dispute' to mean "dispute between trade unions or employers’ associations" and

'intra union dispute' to mean a "dispute within a trade union or an employers' association."

It has already been pointed out that, the definition of the term 'trade dispute' under the NIC Act

2006, does not envisage a dispute, wherein employers are on both sides of the dispute. But the definitions of the terms 'inter union dispute and intra union dispute' under the NIC Act 2006, seem to suggest otherwise. The question then is, which court has the jurisdiction to entertain inter-union and intra-union disputes especially, when the disputants are employers on both sides of the dispute?

Furthermore, one would have thought that, with the enactment of the NIC Act 2006, the controversy concerning the exclusive jurisdiction of the court over trade disputes would have been completely settled, but the reverse became the case. Ejere40 argued that, since section 272 of the 1999 Constitution of the Federal Republic of Nigeria, granted wide jurisdiction to the

High Court of a state, section 11 of the NIC Act 2006 which excluded the jurisdiction of the

Federal High Court and the High Court of the Federal Capital territory, Abuja or any other courts from those matters upon which, exclusive jurisdiction has been granted to the NIC under the NIC Act is null and void.

39 Section 54 40 Ejere O.D., The High Courts' Jurisdiction To Hear And Determine Inter Or Intra Union Dispute is Not Completely Ousted By The Trade Disputes Act As Amended And The 2006 NIC Act ; NJLIR Vol.1No.2(2007) p.56., 14

Woruji et al41 submitted that, the claim of exclusiveness of jurisdiction over those issues is

“far from reality” because the High Courts are creations of the constitution with what appears to be “unlimited” jurisdiction and that since the constitution is the organic law of the country no other legislation can supersede it.

Also, Gbenga Ojo,42 agreed with the foregoing positions of Ejere and Ine Woruji el al. He argued further that, because section 251 of the constitution, has vested in the Federal High

Court, exclusive jurisdiction to the exclusion of other courts, in matters involving the Federal

Government and its agencies, no law therefore, can curtail, restrict or limit the exclusive jurisdiction conferred by the Constitution on the Federal High Court.43 However, the 1999

Constitution44 has now clothed the NIC with exclusive jurisdiction over labour and industrial related matters. What then is the extent and or effect of the exclusive jurisdiction conferred on the NIC in labour and industrial matters by the NIC Act 2006, and the 1999 Constitution of

Nigeria as amended by the Constitution Third Alteration Act 2010? This work shall seek an answer to that question.

By the provision of section 1(1) of the NIC Act 2006, the Court shall consist of the President and not less than 12 (twelve) other Judges. The Constitution (Third Alteration) Act 2010 45 provides that the Court shall consist of (a) President of the National Industrial Court of Nigeria and (b) such number of Judges of the National Industrial Court as may be prescribed by an Act

41 Woruji,I.N.E. et al : The NIC Act 2006 and the Jurisdictional Conflict in Adjudicatory Settlement of Labour Disputes in Nigeria; NJLIR,Vol,1 No.2(2007) p.32-34. 42 See footnotes 15 and 16 supra 43 See further, Alastise Taofeeq Nasir : Obstacles Before National Industrial Court ; THISDAY Newspaper of Tuesday, August 24, 2010 44 Through the 3rd Alteration Act 2010. 45 Section 254A of the 1999 Constitution 15

of the National Assembly. Dr Ogwezzy Michael C46 argued that that the intention of the legislature is premised on the believe that the number of National Industrial Courts of Nigeria will increase as time goes on and more judges will be appointed to man these courts. It is arguable that the instant law on that issue is the provision of the NIC Act 2006 since the

National Assembly has not made any further prescription.

Another issue of great controversy then is the status of NIC. Talking about status, Amadi, opined that, status is a “determent of rank or position,…designed for a purpose and or for convenience, but its origination is always based on some norm or rule, which serves as a measure of certainty and or reference.” 47

Under the common law, courts are generally divided into two statuses, namely, the superior courts which are courts of record, starting from the High Courts to the Supreme Court and the inferior courts comprising of the Magistrate Courts, Customary courts and the likes. The proceedings of the inferior courts are usually under the control and supervision of the superior courts through judicial review and orders of certiorari.48 Not only that the NIC was entangled in jurisdictional dispute with the State High Court Nwagbogu G.M.49 submitted that the root cause of this was the vesting of “unlimited jurisdiction” on a State High Court by the 1999

46 Dr Ogwezzy Michael C. A Critical Examination of the Jurisprudence of National Industrial Court of Nigeria in Contemporary Issues on Labour Law ,Employment and National Industrial Court Practice and Procedures; Essays in honour Honourable Justice Adeniran Adejumo edited by Prof.Yemi Akinsaye-George(SAN) et al, (2014)Lawlords Publications, Abuja Nigeria. 47Amadi, G. O. S.; Jurisprudence of Trade Union Status, Afro-Orbis Publications Ltd., Nsukka (2002) Pg.1 48 See Umoh, P.U., Precedent in Nigerian Courts, Fourth Dimension Publishers, Lagos 1984 Pg.171 Obilade A.O; The Nigerian Legal System , Sweet & Maxwell London 1979 Pg.116 and Nwadialo Fidelis; Civil Procedure in Nigeria, University of Lagos Press, Lagos (2000)2nd ed. Pg 1055. 49 Nwagbogu G.M., Piecemeal Evolutionary Trend of Modern Industrial Relations Practices in Nigeria : Putting the Cart before the Horse. NJLIR, Vol. 7 No .1(2013) p.49-60.

Constitution50, that the controversy heightened when the Supreme Court held that that notwithstanding the exclusive jurisdiction vested on the NIC under TDA51, the jurisdiction of a

State High Court on labour matters, including trade disputes remained intact and curtailed.52

The NIC Act 2006, in its preamble stated the objectives of the Act to include “...the establishment of the National Industrial Court as a superior court of record”. Also section 1(3)

(a) of the Act provides that “the court shall: (a) be a superior court of record…” Bamidele

Aturu,53 maintained that, the NIC is a superior court. He argued that the 1999 Constitution of

Nigeria empowered the National Assembly to create courts to adjudicate on matters in respect of which it can make laws, therefore granting such courts the status of a superior court of record is acceptable and cannot be faulted. But Chiafor,54 disagreed with the views as expressed above. He argued that, section 6(5) of the 1999 Constitution of the Federal Republic of Nigeria listed superior courts and clearly provided that those courts “shall be the only superior courts of record in Nigeria” the NIC therefore, not being one of those courts enumerated under the aforesaid provision, cannot be said to be a superior court of record by any imagination, he concluded. While the controversy was raging on, the Supreme Court, in the case of National Union of Electricity Employees of Nigeria & 1 Or. v Bureau of Public

Enterprises55 held that, because the NIC was not expressly and directly listed in section 6 of the 1999 Constitution, which contains the list of the superior courts of record in Nigeria, the

50Section 236(1) of the 1999 Constitution, under section 272(1) of the 1999 Constitution, a similar provision exists but without the word “unlimited”. 51 Section 20 of the Trade Disputes Act 1976 as amended 52Western Steel Works Ltd v Iron & Steel Workers of Nigeria (1987)2SC11,Savannah Bank of Nigeria Ltd(1982) 1NWLR (Pt. 49)212. 53 Bamidele Aturu; Nigerian Labour Laws; (Principles, Cases, Commentaries and Materials), Frankad Publishers, Lagos (2008) p.239-244. 54 Chiafor Amaechi B. : Reflections on the Constitutionality of the Superior Court of Record Status and exclusive Jurisdiction Clause of the NIC Act 2006; (2007) NJLIR Vol.1,No.3 pg.29. 55 [2010] LPELR – 1966 SC. 17

NIC was an inferior court. However, this controversy surrounding the status of the NIC has now been finally laid to rest by the listing of the NIC in section 6 (5)(cc) of the 1999

Constitution as amended56, which makes it a superior court of record. Even at that, it is still important to examine the purport of that on the NIC Act 2006.

Besides the aforementioned controversies, surrounding the NIC, Ubeku57 stated that labour disputes may be grouped into two types, the first being disputes concerning individuals while, the second are disputes concerning the group, that is to say; the union. He argued further that, while the individual disputes often deal with the legal rights of the individual based on contractual relations, the second type - collective disputes more often deal with economic matters. Iwuji,58 is of the view that, any discussion on settlement of trade disputes must centre on the rights of the individuals as opposed to their interests, which rights may be provided for them by statutes, established practice or collective agreement reached by process of collective bargaining between representative parties to the disputes which are justiceable and disputes over interest, which because they are non-justiceable are better settled by haggling or through negotiations, conciliation or arbitration.

Apart from the above, Annie de Roo and Rob Jagtenberg59 argued that, the classifications of labour disputes are important in that, often they determine which resolutions techniques that, may be applied in resolving any particular dispute. After reference to recommendations of the

56Through the Constitution Third Alteration Act 2010. 57 Ubeku Abel K. : Industrial Relations in Developing Countries; The Case of Nigeria; Macmillan Press London (1938) Pg.157. 58 Iwuji, E. C.; Settlement of Trade Disputes in Otobo D. and Omoole M. (ed.) Readings in Industrial Relations in Nigeria. op.cit Pg.205. 59 Annie de Roo and Rob Jagtenberg : Settling Labour Disputes in Europe ; Kluwer Law and Taxation Publishers Deventer, Boston (1994),Pg.20. 18

ILO (International Labour Organisation),60 they concluded that, individual or collective disputes or disputes over rights and interests are the commonly accepted classifications. The question to be answered here is, whether the jurisdiction granted the NIC can be said to be in line with the foregoing classifications of labour disputes. That is so, because in granting jurisdiction to the NIC, the NIC Act 2006, simply used the phrase "relating to," while Section

254C(1) of the 1999 Constitution, as amended by the Constitution Third Alteration Act 2010 used "relating to or connected with any labour, employment..."

Apart from that, the learned authors compared the institutional non adjudicatory framework for settlement of industrial disputes through voluntary arbitration, mediation and conciliation methods in Great Britain, France, Belgium and the Netherlands.61 This research shall, also examine the provisions of the NIC Act 2006 and the Constitution, dealing with such out-of- court settlement of labour and industrial disputes.

Above all, section 53(1) of the NIC Act 2006, repealed Part 11 of the TDA, while the other sections of the TDA are still extant and part of the labour dispute resolution mechanisms. It has been argued that, this provision is intended to prevent a confusion, between the jurisdiction of the Industrial Arbitration Panel (IAP) under the TDA and the NIC.62 On this point Olu

Abiala63 submitted that the implication of this is that settlement of Trade disputes through

60 ILO (1951) Voluntary Conciliation and Arbitration Recommendation No.92. 61 Annie de Roo and Rob Jagtenberg op.cit, see also Wurogji I.N.E, et al: Institutional Mechanisms for the Settlement of Labour Disputes in Nigeria; The Prospect for maintaining Industrial Peace61 Nnabue U.S.F: Promoting Conflict Resolution Through Non-adjudicatory Process, (1997) Abia State University Law Journal Vol.1 Pg.59 and Simon Deakin et al; Labour Law, Hart Publishing Oxford and Portland, Orgon (2005) 4the edition,Pg.92 62 Agomo Chioma Kanu : Nigerian Employment and Labour Relations Law and Practice, Concept Publications Limited,2011 pg.327. 63 Olu Abiala, Trade Union Laws and Practice in Nigeria: The Travails;2011 St. Paul’s Publishing House,Ibadan,Pg.124 19

mediation, conciliation and arbitration which often engender delay in the process before reaching the National Industrial Court, remain preserved and no matter what sanctimonious defence is given for its retention, can be dysfunctional towards quick dispensation of justice in trade disputes. Contributing on this issue, Bamidele Aturu 64submitted that, the use of the phrase 'to the exclusion of any other court' used in conferring jurisdiction to the NIC, implies that the exclusive jurisdiction of the court to deal with labour matters does not affect the

'jurisdiction' of the IAP to entertain labour disputes as conferred by the TDA, because the IAP, is not a court, but a special administrative panel or arbitral body for resolving labour disputes.

However, Amucheazi and Abba65 argued differently that the NIC could entertain matters brought before it directly by aggrieved parties even without first of all exhausting the laid down procedures under sections 1 to 18 of the TDA. That is in line with the decision of the

Court of Appeal in N.U.T, Niger State v C.O.S.S.T, Niger State66, wherein the court held that the subject matter of the suit was a trade dispute, and consequently held that it was the NIC that has the jurisdiction to try the case and consequently ordered the NIC hear and determine the matter. Commenting on the decision in this case Bimbo Atilola67 argued that a legal puzzle whether the NIC can immediately assume original jurisdiction over a trade dispute matter as in this case which has not explored the processes as led down in Part 1 of the TDA. He submitted that the proper thing for the NIC to due in the light of the order of the Court of Appeal is to decline jurisdiction and refer the matter to the Industrial Arbitration Panel.

64 Aturu Bamidele ; Law and Practice of The National Industrial Court , Hebron Publishing Co. Ltd, 2013 pg.47 65 National Industrial Court,Law,Practice and Procedure,Wildfire Publishing House, 2013 pg.56. 66 (2012) 10 NWLR (Pt.1307) 89 67 Bimbola Atilola; National Industrial Court of Nigeria and Exclusive Jurisdiction on Labour, Trade Union and Employment Related Matters under the Third Alteration Act: Review of N.U.T, Niger State v C.O.S.S.T Niger State (2012) ) NJLIR Vol.6,No.2 pg.1. 20

From the foregoing, it is obvious that there exist gaps in the works reviewed above in determining whether the NIC Act 2006 and the Constitution (Third) Alteration Act 2010 will be able to address the challenges confronting the NIC in the realisation of its set objectives in resolution of labour disputes and related matters in Nigeria.

1.8 ORGANISATION OF THE WORK

This thesis is divided into 7 chapters, with clearly designated headings and sub-headings.

Chapter one is the general introduction. It introduces the entire research, states the problem of the research, the research question, the methodology, objective of the research, significance of the research and the literature review.

Chapter two deals with the; Historical development of related laws and the NIC. This chapter traces the origin of labour courts, development of other related Laws in Nigeria, the historical development of the NIC of Nigeria, and a summary of the Constitution (Third Alteration) Act

2010.

Chapter three examines the legal and statutory frame work on the NIC topics like establishment and constitution, composition, status, judicial divisions, assignment and transfer of cases, amendment and jurisdiction over private individual employment disputes were treated.

In chapter four, the scope of the jurisdiction of the NIC, under original, appellate and interpretative jurisdictions were examined. Also, examined are, the special powers of the NIC, enforcement provisions, injunctive remedies and judicial review.

Chapter Five deals with the expanded jurisdiction of the NIC, under the following sub topics; jurisdiction over international treaties and conventions, sexual harassment and discrimination at workplace, child abuse and human trafficking, national minimum wage, criminal matters and free trade zone.

Furthermore, chapter Six analyses the proactive provisions for trial at the NIC, under the following topics; use of assessors and referees, arbitration, mediation, conciliation and negotiation. Also treated are the National Industrial Court Rules and the issue of appeal over the decisions of the NIC to the Court of Appeal.

Finally, chapter seven deals with the findings of this research, contribution to knowledge, recommendations and general conclusions.

CHAPTER TWO HISTORICAL DEVELOPMENT OF RELATED LAWS AND THE NATIONAL INDUSTRIAL COURT ACT.

It is obvious that the regular courts are congested with cases and the wheel of justice grinds very slowly thereof, and therefore improperly suited for quick and efficient resolution of industrial disputes.1 Several nations have found it expedient to establish specialized courts with exclusive jurisdiction to expeditiously deal with disputes in labour, employment, work place and other industrial relations related issues.2 That was done mainly to obviate, the problems encountered in the regular courts. The procedures at the traditional adversarial courts were considered too slow and cumbersome such that, a nation desirous of rapid industrialization and socio-economic development, could not afford to be bogged down by such cumbrous and time-consuming procedures and technicalities.3 Specialized court or tribunal for resolution of labour disputes originated from France.

1 Mudiaga Odje (SAN) ; The Court’s Delays In The Administration Of Justice - The Nigerian Experience, Abia State Law Journal (2007) Vol.2 pg.63. 2 See section 29 [1] & [3] of the Labour Act 2007 of the Gambia, section 157 of the South African Labour Relations Act 1995, section 89 of the Labour Act of Zimbabwe [as amended in 2006], section 4 of the Industrial Court Act, 2011 and Article 162 [2] of the Kenyan Constitution, and section 50 of the Labour Institutions Act, 2004 of Tanzania these sections established specialized courts with exclusive jurisdiction for the resolution and determination of Labour and Industrial relations matters. 3 See Adejumo B.A., Understanding the Jurisdiction and Powers of the National Industrial Court of Nigeria: A Step by Step Guide. A paper delivered at the Annual Law Week of the NBA Abuja on the 4th December 2013. Also in Allen v MC Alpline & Sons Limited (1968 ALL ER 543, 346 – 547) the renowned English Judge, Master of the Rolls and President of the Court of Appeal (as he then was) Lord Denning said that: “All through the ages men have protested at the Law’s delay and counted it as a grievous wrong hard to bear. Shakespeare ranks it among the whips and scorns of time (Hamlet Act 3 Sc1) Dicken tells us how it exhausts finances, patience, courage and hope (Bleak Home, C1).” In Oteju & Ors v Luguna &Ors.,9(1992)8 NWLR(Pt.262)275. It took the trial judge nearly 10 years to determine the matter, after which it was dismissed, on appeal, the Court of Appeal allowed the appeal because of the unreasonable delay that occurred during the hearing, the court said: “In the instant case so much time was wasted, if not killed—the instant case took ten good years to be completed. This is not all PW1 the key witness of the appellant was literally in the witness box for a period of two and half years. That is not all. It took the trial judge more than six months to write the judgment after hearing last witness for the respondent. Also in the case of Ariori & Ors v Elemo & Ors (1983) 1 SC 13., the lapse of time between the conclusion of addresses by counsel and the delivery of judgment was 15 (fifteen) months while the suit commenced on 15/01/60 and the judgment was delivered on 3/10/75 taking about 15 years. 23

This chapter shall therefore, discuss the origin/ Labour Court of France, the historical development of the NIC, the Constitution Third Alteration Act 2010 and some other related laws.

2.1. THE ORIGIN OF LABOUR COURTS

France was the first country to establish a specialised labour court. The Conseils de Prudhommses of Lyon was the first established Labour Specialised Court,4 by the law of 18 March 1806, on a special request made to Napoleon Bonaparte when he visited Lyon. It was primarily to serve workers in the silk industry.5 Though, it originated in Lyons, the law allowed for its extension to other towns.

The members were elected and they initially dealt with disputes about the quality of work done and the rate of payments. But this was extended to cover other minor disputes and gradually it was extended to other disputes and towns.6Appeals when permitted are lodged before the “cour d’appeal” , then appeals against the latter are filed before cour de cassation.7 But when the financial interest of the case is low, appeal can be brought directly from the Conseil d Prud hommes to the court de cassation by a leapfrog system.8It is important to note that while counsils de prud homes deals with individual labour disputes, collective labour disputes are dealt with by the ordinary civil court on matter of principle (tribunal de grande instance).9 Members of the labour courts are elected every 5 years and they are re-eligible.

4 Ramm Thilo, Workers Participation, the Representation of Labour and Special Labour Courts in Bob Hepple ed., The making of Labour Law in Europe, A comparative study of Nine Countries up to 1945,(2010) Mansell Publishing limited pg.270 5 Thilo Ramm, ibid 6 Ibid. 7 Blatman Micheal, Labour court system in France; Conseiller à la Chambre sociale de la Cour de Cassation française (social chamber of the French supreme court) (June 2006) http://www.ealcj.org/documents/francesummary.pdf accessed September 17,2014. 8 Ibid 9 ibid 24

2:1:1 JURISDICTION

1. Individual labour disputes are handled by Conseil de prud hommes

2. Collective labour litigation by the ordinary civil jurisdiction10

3. Punitive aspects of labour law competence of criminal courts.

2:1:2 COMPOSITION

Tribunal de grande instance which deals with collective agreement is manned by

professional judges. Conseil de prud hommes composed of 4 lay judges the

introduction of professional judge occurs only at the stage of “departition” when

there is a split and then at the appellate level. The members of the labour courts are

elected every 5 years. They are re-eligible on equal representation of

employees/workers basis. Proceeding before the council prud hommes is oral.11In

case of split votes inside the ruling panel, the case is settled by a new panel, presided

over by a professional judge. This panel being no longer pair but uneven, a majority

can be found.

2:1:3 PRACTICE AND PROCDURE

There is no need for a party to appear by a lawyer before the labour court. The

practice is that written procedure is not required. Parties can argue orally before the

judges.

10 Tribunal de grande instance

11 Article L. 516-6 of Labour Code of France

2:1:4 APPEALS

Labour appeals to the court of Appeal12 are handled by a specialised division,

Chambre Sociale, composed of professional judges only and appeals against

cours de appeal, are finally lodge in the Cour de Cassaties Chambre sociale

which also is a specialised division of the Supreme Court of France and also

manned by professional judge.

2:2 HISTORICAL DEVELOPMENT OF RELATED LAWS IN NIGERIA

The essence of the NIC is the adjudicatory resolution of labour and industrial

disputes, oftentimes called trade disputes. For a trade dispute to arise certainly there

should be trade unions in existence whose activities within, and among themselves on

the one hand, and the employer or employers' association or management on the other

hand, would sometimes naturally lead to misunderstandings which will result in trade

disputes and to which the Trade Disputes Law would apply.

Again, the existence of trade unions is dependent on workers employed in an

organized trade/industry. These employees in turn constitute the labour force of such

work places, and it is to this work force that, the Labour Act applies to cater for their

rights, duties and obligations. The end result is that Labour, Trade Union and Trade

Dispute laws are interwoven, interdependent and complimentary of each other,

providing the impetus to delve briefly into their history and evolution in Nigeria.

12 Cour d’ appeal

2.2.1. LABOUR ACT

Nigeria was a British Colony. The colonization started with the ceding of

Lagos to Britain in 1861. The first Labour Statute was enacted in 1877. This

Statute was the Master and Servant Ordinance - Ordinance No 16, of the Gold

Coast Colony.13 In 1895 the aforesaid Ordinance No 16 was amended by

ordinance No I, of 1895 for the Colony of Lagos. In 1900, the Protectorates of

Southern and Northern Nigeria were created and similar legislations were

introduced, thus the Master and Servant Proclamation No 3, of 1901 of the

Southern Protectorate which was subsequently amended in 1903 and 1904

was used in the Southern protectorate while the Master and Servant

Proclamation No 22, of 1902 of the Northern protectorate which was

subsequently amended in 1904, 1907, 1909 and 1902 respectively was in

force.

In 1906 Lagos was merged with the Southern Protectorate and in 1914 both

the Southern Protectorate and the Northern Protectorate were amalgamated. In

1917 the Master and Servant Ordinance No 16, of 1917 was enacted for the

whole country. This Master and Servant Ordinance repealed the Master and

Servant Proclamation No 3, of 1901 of the Southern Protectorate and the

Master and Servant Proclamation No 22, of 1902 of Northern Nigeria. It

underwent several repeals and amendments in 1929, 1932, 1943, and in 1945

the Labor Code was enacted as an ordinance to amend and consolidate the

13 Lagos was administered as part of the Gold-Coast Colony between 1874 and 1886. 27

laws relating to labour in Nigeria, it was known as Labour Code Ordinance

Cap 91 Laws of the Federation of Nigeria and Lagos (Vol. III) 1958. It

remained in force until 1974 when it was repealed and replaced by all-

encompassing Labour Act of Nigeria14. This law was included in the 1990

edition of the Laws of Federal Republic of Nigeria 1990 as Cap 198. It is

currently re-enacted as Labour Act, Cap LI Vol. 8 Laws of the Federation of

Nigeria, 2004 without much changes.

2.2.2. TRADE UNIONS LAWS

As stated above, Lagos was ceded to Britain in 1861 and made a Colony in

1862. By virtue of the Courts Ordinance 1863, the English Common law,

Doctrines of Equity and Statutes of General Application in force in Britain

before 1st January 1990, were received into Lagos and after the amalgamation

of Nigeria in 1914 into Nigeria. Thus, the English Trade Unions Act 1871,

was received in Nigeria as a statute of general application. It has been

submitted that, on this “Act was built Nigerian enactments on trade unions.”15

In 1938, the first statute on trade Unions was enacted in Nigeria that is the

Trade Union Ordinance, of 1938. It was amended severally in 1939 as

Ordinance No. 35 of 1939, Ordinance No. 28 of 1943, Ordinance No. 26 of

1943 and Ordinance No.3, of 1947. In 1958, all these laws were consolidated

and known as the Trade Unions Ordinance Cap 200 Laws of the Federation of

Nigeria and Lagos 1958. In1973, the Trade Unions Act 1973, was enacted

14 By Decree No.21 of 1974 which was deemed to have come into force on August 1,1971. 15 Amadi, G.O.S; Jurisprudence Trade Unions Status, op.cit Pg.14. 28

through legal Notice No 62 of 1973. This law was included in the 1990

edition of the Laws of Nigeria as Trade Unions Act Cap 437, Laws of the

Federation of Nigeria 1990 which law iscontained as Trade Union Acts Cap

T14 Vol. 15, Laws of the Federation of Nigeria 2004. This Act was again

amended by the National Assembly, through the Trade Unions (Amendment)

Act, 2005.

2.2.3 TRADE DISPUTES ACT

The first statute to be enacted in Nigeria to take care of Trade disputes was the Trade

Disputes (Arbitration and Inquiry) Ordinances 1941, which was later amended in

1944. This formed the Trade Disputes (Arbitration and Inquiry) Ordinance Cap 201,

Laws of Lagos 1958 and later, Laws of the Federation and Lagos, effected by the

Trade Disputes (Arbitration and Inquiry) (Federal Application) Ordinance Cap 202,

Laws of the Federation and Lagos 1958. During the Nigeria crisis,16 the Trade

Disputes (Emergency Provisions) Decree of 1968, and the Trade Disputes (Essential

Services) Decree of 1968, were promulgated which were in force until 1976, when

the Trade Disputes Decree No 7 of 1976, that introduced for the first time the NIC,

was promulgated. This law was included in the 1990, edition of the Laws of the

Federation of Nigeria as Trade Disputes Act, Cap 432, Laws of the Federation of

Nigeria 1990, with its counterpart known as Trade Disputes (Essential Services Act)

which was amended in 1992, by Decree No 47 of 1992. This law excluded the

jurisdiction of the ordinary courts in respect of Trade Dispute matters. This law is

16 The Nigerian Civil War 1967-1970. 29

presently known as Trade Disputes Act, Cap T8 Laws of the Federation of Nigeria

2004.

2.2:4. THE NATIONAL INDUSTRIAL COURT OF NIGERIA

Historically, the NIC was established in 1976,17 but it actually took off two years later in

1978. It is pertinent to note that, prior to the establishment of the NIC, industrial relations law

and practice was modelled, on the non-interventionist and voluntary model of the British

system.18 The statutory mechanism for the settlement of trade disputes was found in the

Trade Disputes (Arbitration and Enquiry) Act.19 The Act gave powers to the Minister of

Labour to intervene by way of conciliation, formal inquiry and arbitration where negotiation

had broken down. The major features of the non-interventionist model were that, it was

totally at the discretion of the parties to determine, whether or not to surrender to the

jurisdiction of the Minister. Thus, the Minister could not compel, the parties to accept his

intervention. He could only appoint a Conciliator, upon the application of the parties, and

could only set up an Arbitral Tribunal by the consent of both parties. In the second place,

there was no permanent institution created to handle, and settle labour disputes. An ad hoc

body had to be set up, for a particular dispute and once it delivered its decision it became

functus officio.20

17 Pursuant to the Trade Disputes Decree No.7 of 1976. 18 See Agomo C.K., ‘Nigeria’, in Labour Law and Industrial Relations in the International Encyclopedia of Law; Blanpain ed. 2000 at pp.38 – 39. 19See Section 3, CAP. 201, Laws of the Federation of Nigeria and Lagos, 1958. 20 See section 4 (2), Trade Disputes (Arbitration and Enquiry) Act, 1958. 30

The declaration of hostilities, during the Nigerian civil war between the Biafra and Nigeria in

1968, marked a turning point in the Nigerian approach to settlement of trade disputes. As a

result of the hostilities, it became expedient during the state of emergency to make

transitional provisions for the settlement of trade disputes arising within the period.

Consequently, the Trade Disputes (Emergency Provisions) Act was enacted and it suspended

the Trade Disputes (Arbitration and Inquiry) Act (supra).

It, for the first time gave the Minister, the power of compulsory intervention in trade

disputes, while still retaining the additional powers of conciliation, formal inquiry and

arbitration. Thus, the requirement for consent of the parties before the Minister could act was

suspended. The 1968 Act, also stipulated the time frame within, which the Minister was to

act starting from the time the employers and the employees, became aware of the existence of

a dispute to the time the minister was notified.21

As noted above, the NIC was first introduced in the country through Decree No 7, 1976. It

set out procedures and steps towards settlement of trade disputes .There are two provisions

relating to reference of an award to the NIC where an objection is made. The first is where, a

notice of objection is given to the minister, and then the Minister must refer the dispute to the

NIC.22 The other, made provision for an appeal to lie to the NIC from the decisions of the

IAP as of right, in matters of disputes conferred upon it in Section 25, of the TDA.23

21 See ss. 2 – 7 of the Trade Disputes (Emergency Provisions) Act, 1968, see generally; Adejumo B.A.; The National Industrial Court of Nigeria: Past, Present and Future (footnote 8)supra. 22 Section 14 of the TDA. 23 Section 25 ibid, also Uvieghara, Labour Law in Nigeria, op.cit pg.429. 31

2.2.5. THE CONSTITUTION (THIRD ALTERATION) ACT, 2010

The Constitution (Third Alteration) Act 2010, amended 12 (twelve) Sections of the 1999

Constitution, and 2 (two) Schedules as follows: Section 6 (5) now provides for the much

needed constitutional superior court status of the Court,24 Section 84 (4) provides for the

remuneration of the President and Judges of the NIC in line with that, of the Chief Judge and

other Judges of the Federal High Courts as a charge upon the Consolidated Revenue fund of

the Federation.25 Section 240, provides for the appellate jurisdiction of the Court of Appeal

over the NIC.26 Section 243, is on the exercise of the right of appeal from the National

Industrial Court in civil and criminal matters, which are of right in matters connected to

fundamental human rights as enshrined in chapter 4 of the Constitution, Criminal matters,

and with leave of the Court of Appeal in civil matters.27 Section 254 deals with the

appointment, jurisdiction, powers, practice and procedure of the NIC.28 Section 287, makes

provision for the enforcement of the decisions of the NIC, in any part of the Federation by all

authorities and persons and by other courts of law with subordinate jurisdiction.29 Section

289, disqualifies members of the Judicial Service Commission and State Judicial Service

Commission from being appointed as Judges of the NIC.30

Furthermore, Section 292 deals on the procedure for removal of the President of the NIC, by

the President of the country acting on an address supported by a two-third majority of the

24 Section 2 of the Constitution (Third Alteration) Act 2010. 25 Section 3 of the Constitution (Third Alteration) Act 2010. 26 Section 4 of the Constitution (Third Alteration ) Act 2010. 27 Section 5(a)-(c) of the Constitution (Third Alteration ) Act 2010. 28 Section 6 of the Constitution (Third Alteration) ACT 2010. 29 Section 7 of the Constitution (Third Alteration) Act 2010. 30 Section 8 of the Constitution (Third Alteration ) Act 2010. 32

senate.31 Section 294 (4) is on delivering judgment and determination of cases before the

NIC,32 Section 295 on reference of matters or issues of law to the Court of Appeal.33 Section

316 saves other provisions for the continuity of existing offices and authorities of the

National Industrial Court.34 Section 31835 is the interpretation provisions of the Constitution

which now defines a judicial office to include the office of the President and Judges of the

NIC.36

In addition, the third schedule to the Constitution now includes the President of the NIC as a

member of the Federal Judicial Service Commission and the National Judicial Service

Council37 and finally the seventh schedule to the Constitution now makes it mandatory for

the President of the Court and Judges of the Court to take judicial oath of office on

assumption of office.38

It is gladdening to note that, the Third Constitution Alteration Act 2010, not only elevated

constitutionally the NIC to the status of a superior Court, but it also granted the court

enhanced powers and enlarged jurisdiction. The end point is that, the issue of uncertainty and

forum shopping in matters relating to labour, employment, trade unions and industrial

disputes are now constitutionally vested in the NIC,39 and matters relating to or connected

with or arising from Factories Act, Trade Disputes Act, Trade Union Act, Labour Act,

31 Section 9 of the Constitution (Third Alteration ) Act 2010. 32 Section 10 of Constitution (Third Alteration) Act 2010. 33 Section 11 of the Constitution (Third Alteration) Act 2010. 34 Section 12 of the Constitution (Third Alteration ) Act 2010. 35 Section 13 of the Constitution (Third Alteration) Act 2010. 36 ibid 37 Section 14 of the Constitution (Third Alteration ) Act 2010. 38 Section 15 of the Constitutional (Third Alteration) Act 2010. 39 See Enobong Etteh; Elevation of the Industrial Court means a Big Lift to Labour Law Practice, The Guardian March15,2011, p.81-82,Guardian Newspapers Limited Rutam House, Isolo, Lagos. 33

Employees Compensation Act or any other law relating to labour, employment, industrial relations, work place or any other enactment replacing the Acts or laws.

Also included, are issues of the fundamental human rights as enshrined in chapter four, of the constitution as they affect labour, employment and industrial relation matters, causes and matters relating to child abuse, child labour and human trafficking, sexual harassment and discrimination at work place which are now actionable before the Court and so many other issues bordering on labour, employment and industrial relations.

From the foregoing, one can submit and rightly too that, the Third Constitution Alteration

Act 2010 corrected the sore points hitherto, militating against the NIC and gave constitutional validity needed for the court to optimally perform the task of ensuring social stability, economic development and growth through the effective administration of employment, labour and industrial relation matters.

However, the question now is; can the NIC as presently constituted and composed, cope with the avalanche of cases that will be filed and or transferred to the court in view of the enlarged jurisdiction of the court resulting from the Third Alteration of the Constitution? This writer is of the view that, proactive steps should be taken to avoid congesting the NIC with cases in order not to place the Court in the same position or even worse situation than, the regular court.

As can be seen above the NIC was interwoven with the office of the Minister of the Ministry of Employment, Labour and productivity. It is the Minister of Labour and Productivity who has the statutory powers of activating the original jurisdiction of the NIC. It is also further fused with the IAP to which it acts as an appellate Court. It therefore needs an entirely

enabling law to properly function as a court. We shall now look at the Provisions NIC Act

2006 in the subsequent chapters.

CHAPTER THREE LEGAL AND STATUTORY FRAMEWORK OF THE NATIONAL INDUSTRIAL COURT.

In this chapter, this writer will examine the provisions of the NIC Act2006 as they relate to

Establishment and Constitution, Status, Sitting and Distribution of cases, Judicial Divisions,

Composition, Assignment and Transfer of Cases, with a view of pointing out the lacunas that exist thereof.

3.1. ESTABLISHMENT AND CONSTITUTION

By the provisions of section 1(1) of the NIC Act 2006, the National Industrial Court

shall consist of the President and not less than 12 (twelve) other Judges. The

Constitution (Third Alteration) Act 2010 1 provides that the Court shall consist of (a)

President of the National Industrial Court of Nigeria and (b) such number of Judges of

the National Industrial Court as may be prescribed by an Act of the National Assembly.

Ogwezzy Michael C.2 argued that the intention of the legislature is premised on the

believe that the number of National Industrial Courts of Nigeria will increase as time

goes on and more judges will be appointed to man these courts. It is arguable that the

instant law on the issue of the minimum number of Judges of the NIC, is the provision

of the NIC Act 2006 since the National Assembly has not made any further

prescription.

1 Section 254A of the 1999 Constitution 2 Dr Ogwezzy Michael C. A Critical Examination of the Jurisprudence of National Industrial Court of Nigeria in Contemporary Issues on Labour Law ,Employment and National Industrial Court Practice and Procedures; Essays in honour Honourable Justice Adeniran Adejumo edited by Prof.Yemi Akinsaye-George(SAN) et al, (2014)Lawlords Publications, Abuja Nigeria. 36

By the use of the phrase “not less than”, it is intended that, at all times the court shall

comprise of at least 13 Judges including the President of the Court or more but not less.

This number 13(thirteen) inclusive of the President of the Court as a minimum number

of judges at all times is arguably inadequate, considering the fact that, Nigeria has 36

(thirty six) states and the federal capital territory, Abuja.

Also, the court ought to have judicial divisions and within each judicial division, may

have places of sessions. Comparatively, this is an improvement on the provision of

Trade Disputes Act3, which provided for a minimum of 5 (five) members including the

President. Apart from that, to form a quorum except in interlocutory applications or

preliminary matters4the NIC “shall be constituted of not less than three judges.”5 The

Constitution (Third Alteration) Act 2010 6 provided that the Court shall consist of (a)

President of the National Industrial Court of Nigeria and (b) such number of Judges of

the National Industrial Court as may be prescribed by an Act of the National Assembly.

Since no such prescription by an Act of the National Assembly has been made after the

NIC Act 2006 the minimum required number of Judges of the NIC is still 13. It is

therefore suggested that, the NIC should be constituted of the President and not less

than 37 other Judges, to reflect the 36 states and the federal capital territory Abuja.

3.1.1. THE COMPOSITION OF THE NATIONAL INDUSTRIAL COURT

The President of the NIC is appointed by the President of the Federal Republic of

Nigeria on the recommendation of the NJC (National Judicial Council) and subject to

4 Section 21(5) of the NIC Act 2006. 5 Section 21(4) of the NIC Act, 2006. 6 Section 254A of the 1999 Constitution 37

the confirmation of the Senate. This is in pari materia with the constitutional provisions

for the appointment of the Chief Judge of the Federal High Court 7and the Chief Judge

of the High Court of Abuja.8 For all intents and purposes, the President of the Court

ranks equal in terms of tenure, emoluments of office, status and responsibilities as the

Chief Judge of the Federal High Court and the Chief Judge of the FCT, while the

Judges of the Court are rated equally, with their counterparts in the Federal High Court

and the High Court of the FCT.9

Consequently, while the President of the Court is appointed by the President of the

country on the recommendation of the National Judicial council (NJC), subject to

confirmation by the Senate, that of the Judges is by the President of the country on the

recommendation of the NJC. Under this dispensation, the mode of appointment of the

President and Judges of the Court has been harmonized within the structure of the NJC,

unlike previously when the mode of appointment differed as between the President of

the Court and the Ordinary Members (Judges) of the Court.10 Furthermore, the tenure of

especially the Judges of the Court (who until 2006 were called Ordinary Members), had

tenure of only 4 years, in the first instance, with eligibility for another term of 4 years,

and then no more, is now secured in that, they are judges till the retiring age of 65.

Also the other judges are appointed by the President of the country on the

recommendation of the NJC, which is also the mode of appointment of the Judges of

7Section 250 (1) of the 1999 Constitution 8 Section256 (1)of the 1999 Constitution 9 Ibid, sections 3, 4 and 5. See also section 254B of the 1999 Constitution, as amended. 10 See page 2 (footnotes 7 and 8) above. 38

the Federal High Court and the court of the Federal Capital Territory Abuja.11However,

the proviso in section 1 (2) of the NIC Act 2006, that one-third of the Judges so

appointed (that is to say four out of the twelve Judges) shall satisfy the requirements of

the provisions of Section 2 (4) (b) is worrisome and needs to be revisited as shall be

seen below.

The said section 2 (4) (b) requires that, the person to be appointed shall be a graduate of

a recognised University of not less than 10 (ten) years standing and has considerable

knowledge and experience in the law and practice of industrial relations and

employment conditions in Nigeria. The implication of this sub section is that, there are

2 (two) classes of persons that are suitable for appointment as Judges of the NIC. The

first category of persons are legal practitioners (lawyers) of at least 10 (ten) years post

call, with considerable knowledge and experience in the law and practice of industrial

relations, and employment conditions in Nigeria.12 And the second category of

persons, are graduates of not less than 10 years of graduation irrespective of their area

of study, qualifications and specialisations, provided that, such persons have

considerable knowledge and experience in the law and practice of industrial relations

and employment conditions in Nigeria.

What are the criteria for determining a person who has considerable knowledge and

experience in the law and practice of industrial relations, in a country where

appointments are made more of political patronage and other considerations, including

11 See sections 231 (1) & (2), 238 (1) & (2) and 250 (1) & (2) of the 1999 Constitution. 12See Section 2(4) (a). This is also the minimum number of post call years for appointment as a Judge of the Federal High Court, Judge of the Federal Capital Territory Abuja and the various State High Courts in the country. 39

on the principles of federal character than on merit? In fact, it has been noted that, in

some cases, appointments and promotions are evidently not based on merit, but on

strength of the connection of the appointee.13 The word 'considerable' has been

defined14, as great in amount, size, importance etc, while 'knowledge' is defined, by the

same dictionary15 as the information, understanding and skills that, you gain through

education or experience or the state of knowing about a particular fact or situation.

From the foregoing therefore, this writer is of the opinion that, there ought to be a

deducible objective standard contained in the NIC Act 2006, to determine when any

person, can be said to have considerable knowledge and experience in the law and

practice of industrial relations, and employment conditions in Nigeria, otherwise that,

provision will be subject to abuse. Under the TDA such a non-lawyer Judge must be a

person of good standing to the knowledge of the Minister of Labour and Productivity

and must be knowledgeable in economics, trade and industry16 which conditions are not

difficult to ascertain.

The implications are grave, in the first place, the Rules of the Evidence Act are

applicable to the NIC and the NIC is bound by it, regardless that, the court may depart

from it in the interest of justice17. The use of the word, “may” clearly shows that such

departure shall be discretionary. Furthermore, the Third Constitution Alteration Act

13 Taiwo Osiptan: Safeguarding Judicial Independence under the 1999 Constitution, Yemi Akinseye-George & Gbolahan Gbadamos ; Pursuit of Justice & Development; Essays in Honour of Hon. Justice M. Omotayo Onalaja, Diamond Publishers Lagos 2004, page 17. 14A. S. Hornby: Oxford Advanced Learner’s Dictionary, Oxford University Press 7th edition p.310. 15 Ibid page 821. 16 Section 19(2) (b) of TDA. 17 See Fred Agbaje; The Legal and Constitutional Anatomy of the New Industrial Court Act 2006, NJLIR Vol. 1.No.1 (2007) page 73. 40

2010, aforesaid granted criminal jurisdiction18 to the NIC, in addition to its civil

jurisdiction and specifically provided that “the provisions of the Criminal Code, Penal

Code, Criminal Procedure Act, Criminal Procedure Code or Evidence Act shall

apply.”19 It then means that, the non-lawyer Judges who are not trained on the

technicalities of the Evidence Act, Criminal Procedure Code, Criminal Procedure Act

and others mentioned above have no option than to first of all, try to learn on the job,

the technicalities, applications and uses of these laws, which certainly may occasion a

great miscarriage of justice and slow down the speed of disposing of cases by the court.

Secondly, the President of the Court is entitled to make Rules of Practice and Procedure

for the court and has in fact made the National Industrial Court Rules 2007, which is

purely a court rule20. It is doubtful whether, the non-lawyer Judges will understand the

nitty-gritty, let alone the complexities involved in applying the said rules of practice

and procedure of the court.

However, this provision of having non-lawyer Judges sitting in the same panel with

lawyer judges has been said to be in line with the International Labour

Organization(ILO) Convention on collective bargaining which, is built on tripartism,

that is to say, the employer, worker and government.21 He argued that, if only lawyers

are appointed Judges of the court, the spirit of tripartism in adjudication of labour

disputes will be transposed into regular courts and that, this could jeopardise industrial

18 Section 254C (5) of 1999 Constitution as amended by Third Constitution Alteration Act. 19 Section 254F(1) of the 1999 Constitution as amended by the Third Constitution Alteration Act 20See section 36 of the NIC Act,2006, the President of the NIC has in addition to the National Industrial Court Rules 2007 made a Practice Direction with commencement date of July 1, 2012. 21 Olayinka Collins; Angst over Appointments to Industrial Court. The Guardian, Tuesday, January 25, 2011,page 29,Gurdian Newspapers Limited, Rutam House, Isolo Lagos 41

peace that, the country craves for as a pre-condition for economic growth and

development.22 Also, that provision has been described as commendable and

welcome,23 in view of the diverse labour issues which may require people having

competence and experiences in other fields. He further submitted that, this provision is

in line with other jurisdictions citing Britain, as an example where, the Employment

Tribunal has among its members lay experts sitting with a legally qualified

chairperson.24

With due respect, this writer does not share the views, as expressed by the learned

authors above. The position in Britain is clearly distinguishable from that provision. In

the first place, granted that the Employment Tribunal sits with three persons, one of

them who must be a legally qualified person and two other lay persons, those two other

lay persons are representatives of management and the union respectively.25 In Nigeria,

there is no such representative of both the management and union in the composition of

the NIC.

Again, the decision of the Employment Tribunal is appeal-able to the Employment

Appeal Tribunal.26The Employment Appeal Tribunal, also is normally composed of a

legally qualified chairman of at least 7 (seven) years professional experience and 2

(two) other lay members one representing employers organizations and the other the

22 ibid. 23 Woruji; I.N.E., National Industrial Court in Annotation of Nigerian Labour Legislations; op.cit P.171. 24 Ibid. 25 Nicholas Fridd.et al. Basic Practice in Courts, Tribunals and Inquires; Sweet & Maxwell, London, 2000, 3rd Edition Page 269. Also see generally Part 2, Employment Tribunals Act 1996 and The Employment Appeal Tribunal Rules 1993. 26 John Bowers QC; Termination of Employment; Cavedish Practice Notes, Cavedish Publishing Ltd. London 4th Edition 2001 Page 10. 42

trade unions or professional associations. Yet, the decisions of this Appeal Tribunal are

also appeal-able to the Court of Appeal, and from the Court of Appeal to the House of

Lords.27 But in Nigeria, excepting matters relating to fundamental human rights, the

decisions of the NIC under the NIC Act 2006, are final and not appeal-able to the Court

of Appeal28 or to any other court. However, the Constitution Third Alteration Act

2010, gave automatic right of appeal over criminal decisions of the court to the Court of

Appeal, leave of the Court of Appeal, is needed over civil matters upon prescription by

an Act of the National Assembly, and the decision of the Court of Appeal on that, issue

is final.29 In addition, the Employment Tribunal and the Employment Appeal Tribunal

are courts of informal procedure in which representation by lawyers would not be very

necessary 30unlike proceedings in the NIC which are very formal.

All courts, including the NIC exist to uphold the rule of law and administer justice.

Justice connotes fair treatment and due regard in accordance31 with the law and equity.

Why then, queried learned author Odunaiya V.A.32is the NIC different in its

composition? He argued that, though the non-lawyer Judges may have been appointed

for their special knowledge or experience in industrial relations, they are full Judges of

the court and not advisers. Thus, in reaching decisions, each member has a vote,

irrespective of whether, the Judge is a professionally trained lawyer or not.33 These

27 John Bowers QC. Ibid p. 11, 61 and 99. 28 See Section 9 of the NIC Act 2006. 29 Section 9 of the NIC Act 2006,see also section 243 of the 1999 Constitution as amended. 30 John Bowers QC ibid page 62. 31 Yemi Akinseye-George & Gbolaham Gbadamos :The pursuit of Justice & Development; Essays in honour of Justice M.Omolayo Onalaja ;Op.cit P.19. 32 Odunaiya V.A.; Law and Practice of Industrial Relations in Nigeria; Passfield Publishers ltd Lagos 2006 pages 449-450. 33 Ibid. 43

views as expressed aforesaid, are akin with the conclusions of Hepple B.34 about

Labour Courts in Europe. According to him, the establishment of labour courts may

provide for improvement of the judicial proceedings, there is nothing inherent in the

specialisation that, leads to this improvement. Nor are there any significant difference

between labour courts and ordinary courts when, it comes to the methods of solving

disputes.

From the foregoing, the qualification of the lawyer Judges of the NIC is the same with

that of Judges of the Federal High Court, the High Court of the Federal Capital territory

Abuja, and the various State High Courts. Also, they all are recommended by the NJC

(National Judicial Council) before appointment. They have the same powers, over

matters within their jurisdiction. They are of the same status, and earn the same salary

from the consolidated fund of the Federation. Therefore, since those other courts35 are

composed by a single judge, sitting alone in respect of matters before them, it is hereby

recommended that the composition of the NIC provided by the NIC Act 2006 aforesaid

be changed to a single judge sitting alone and that an amendment of this section is very

imperative making it mandatory for all judges of the NIC to be professionally qualified

lawyers.36That will make available more functional courts and fasten the speed of

determination of cases thereof. And also, be in line with the position in Germany where

the early professional Judges were not necessarily trained lawyers; but since 1961,

however, professional Judges have had to have the same qualifications as the Judges in

34 Hepple B. Labour Courts; Some Comparative Perspectives; 41 Current Legal Problems, Harmondsworth, Penguin Books, 1988 p.169. 35 The Federal High Court, the High Court of the Federal Capital Abuja and the various State High Courts. 36 The Third Constitution Alteration Act 2010 was silent on the appointment of non-lawyer judges but it is still in the NIC Act 2006. 44

ordinary courts.37 The provision of section 254B (4) of the 1999 Constitution,38as

amended by the Constitution Third Alteration Act 2010, which stipulates that a person

is eligible to hold the office of a Judge of the NIC only if he/she “is a legal practitioner

in Nigeria”, implies that section 2(4)(b) of the NIC Act 2006 which permits a lay

graduate to be a Judge of the Court is no longer good law on the authority of section

1(3) of the 1999 Constitution, as amended.39

3.1.2. STATUS

Section 1 (3) (a) of the Act provides that the court shall: "be a superior court of record

and have all the powers of a High court;" We have already stated that, under the

common law, courts are divided into two classes, namely; the superior courts and the

inferior courts.40 Status represents the legal position, rank and level of importance given

to a court.41 The implications of not being a superior court may be grave,42 for instance,

an inferior court is subject to the supervisory jurisdiction of superior courts, which

means that, its processes are subject of judicial review by a superior court through the

writs of certiorari, mandamus or prohibition.43 Again, the decision of the Supreme

Court in, Western Steel Works v Iron Steel Workers Union,44 is to the effect that an

inferior court cannot grant declaratory orders or injunctive reliefs. It will be recalled

37 Ramm T. Labor Courts and Grievance Settlement in West Germany ; Aaron B.(ed.) , Labour Courts and Grievance Settlement in Western Europe, Berkeley, University of California Press 1971,pg.147. 38 As introduced by the Constitution Third Alteration Act 2010. 39 See also PDP v CPC [2011] 17 NWLR (Pt. 1277) 485 at 511 per Fabiyi, JSC. 40 pages13- 14 above 41 Advanced learners Dictionary, op. cit pg.1169, also Amadi G. O. S., Jurisprudence of Trade Union Status; op.cit pg.1 42 Bamidele Aturu: Nigerian Labour Laws; op.cit pg.237. 43 In the case of National Union of Textile, Garments and Tailoring Workers of Nigeria v Atlantic Textile Manufacturing Co. Ltd (1980/81),NICLR 81,the NIC felt bound to take judicial notice of the issuance of an order of certorari by the High Court of Lagos State and held that the interim order made by the IAP is null and void. 44 (1987) 1NWLR (Pt.49) 284. 45

that the controversy over the status of the NIC stemmed from the then provisions of the

S6 (3) of the 1999 Constitution which was in force before the Constitution Third

Alteration Act 2010 which provided thus:

The courts to which this section relates, established by this constitution for the

Federation and for the states, specified in subsection (5) (a) to (i) of this section,

shall be the only superior courts of records in Nigeria: save as otherwise

prescribed by the National Assembly or by the House of Assembly of a State,

each court shall have all the powers of a superior court of record.

Sub-sections 5(a) to (i) thus:

(a) the Supreme Court of Nigeria

(b) the Court of Appeal

(d) the High Court of the Federal Capital Territory, Abuja;

(e) a High court of a State;

(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;

(g) the Sharia Court of Appeal of a State;

(h) the Customary Court of the Federal Capital Territory, Abuja;

(i) a Customary Court of Appeal of a State.

The view expressed by Bamidele Aturu to the effect that, since the constitution permitted the

National Assembly to create courts to adjudicate on matters in respect of which it can make laws has already been stated45, therefore giving such courts the superior court status is in order.

45 See page 14 and footnote 47 above. 46

Historically, it was the Trade Disputes (Amendment) Decree No.47 of 199246that, first gave the

NIC, the status of a superior court. There is no doubt that, then under a military regime that, status was sustainable in view of the fact that, a military Decree was the organic law of the land, even superior to any unsuspended portion of the Constitution, but that, is no longer the position now in a civilian democracy such as ours.

Woruji I.N.E, in his contribution on this issue, while arguing that, the effect of the superior court of coordinate jurisdiction with the High Courts in matters within its jurisdiction and the fact that, the NIC can exercise all the powers incidental thereto is that, the standing and the dignity of the court, is restored to enable it function freely. He however expressed doubts whether; this can properly place the court in law in the same status with the High Courts which are creations of the constitution.47

The foregoing naturally brings us to the doctrine of Constitutional Supremacy.

Supremacy is the noun derivative of the adjective supreme which denotes the highest in position, authority or rank, a position in which one has more power, authority or status than anyone else.48 The doctrine therefore implies that, the Constitution is the supreme law, without it no law can exist.

This doctrine has been given approval judicially in Nigeria in a very long list of cases.49

Applying this doctrine now to the issue at hand, it is not in doubt that, the National Assembly comprising the House of Representatives and the Senate have the constitutional powers to

46 section5(2) 47 National Industrial Court Act 2006;in Bimbo Atilola ed. Annotated Nigerian Labour Legislations, Hybrid Consult, Lagos 2008 Pg,173. 48 Hornby A.S.; Oxford Advanced Learner’s Dictionary, Oxford University Press 7th edition p.1205 49 Military Governor of Ondo State v Adewunmi (1988) 3NWLR(Pt.82)1.,A.G Abia State vs. A.G of Federation(2002) 6NWLR (Pt.821)1,and A.G. of Ondo State vs. A.G of Federation and ors.,(2002) 9 NWLR (Pt. 772) 222. 47

make laws for the peace, order and good governance of the federation or any part thereof with

respect to matters contained in the exclusive legislative list, as set out in Part I, of the Second

Schedule to the Constitution.50The aforesaid Exclusive Legislative list, in item No 34 listed

labour and incidental matters thereof.

However, the Constitution in Section 1 (1) is very clear and equivocal on its supremacy as it

provides thus: “This Constitution is supreme and its provisions shall have binding force on all

authorities and persons throughout the Federal Republic of Nigeria.”

Not only that, in Section 1 (3) it further provides that: “If any other law is inconsistent with the

provisions of this Constitution, this Constitution shall prevail and that other law shall to the

extent of the inconsistency be void.”

The provision of section 6 (3) of the Constitution aforesaid that, these courts “shall be the only

superior courts of record in Nigeria" is final, on the issue and no legislative act can add or

derogate from this provision.” An affirmative of the legislature,51 granting the NIC a Superior

court status, as provided by the NIC Act 2006, is an affront or assault on the constitution and

therefore, utra vires the legislature.52

Furthermore ,section 6 (4) (a) is also very clear as it provides thus:

“Nothing in the foregoing provisions of this section shall be construed as precluding:

(a) the National Assembly or any House of Assembly from establishing

50 Section 4(2) of the Constitution as amended. 51 Wuroji I.N.E; ibid. 52 See generally, Ejere O.D.: Further Reflections on the Constitutionality of the NIC Act 2006,NJLR Vol.1 No.4.Amucheazi O.D and Oji Elizabeth O. The Status of the National Industrial Court under the 1999 Constitution. NJLIR Vol.2 No.3 (2008) p.1 48

Courts, other than those to which this section relates, with subordinate jurisdiction to

that of a High Court.”

The phrase; “with subordinate jurisdiction to the High Court" is very instructive on the intendment of the constitution as to be 'subordinate' means to be lower in rank or less important.53 Thus, it is very clear by the provision of section 6(4)(a) that, either the National

Assembly or the House of Assembly of a state, has the powers and may in the exercise of such powers, create or establish other courts other than those to which section 6 of the Constitution relates. However, the courts so created shall be courts with subordinate jurisdiction to that, of the High court. The National Assembly therefore, has no power to create a superior court of record with all the powers of a High Court. By virtue of the combined effect of Section 6(3) and Section 6(4) (a) of the Constitution, such courts that, can be created by the National

Assembly or any state House of Assembly must be and truly subordinate in jurisdiction to the

High court. The courts must be lower in rank, power, class, order, nature, dignity and importance to the High Court. They cannot, by any stretch of imagination be courts of coordinate jurisdiction with a High Court established by the Constitution.

Neither can they be courts competing with the High Court in power, rank, status or authority.

Further on section 1(3)(a) of the NIC Act 2006; since section 6 (3) clearly stated that, the only superior courts in Nigeria are those specified in section 6 (5) (a)-(1) it can safely be argued that, section 6(3) therefore, clearly and by necessary implication excluded the courts that, may be established for the purpose of section 6(5) (j)-(k) in exercise of the powers granted to the

National Assembly and or a State House Assembly of a state by Section 6 (4)(a) from being

53 William C. Burton; Burton's Legal Theraus, 3rd. ed., MC Graw-Hill USA,Pg.500,Mairi Robson; Chambers 21st Century Dictionary, Allied Publishers, New Delhi India,Pg.1406. 49

superior courts of record in Nigeria. To hold otherwise, would certainly lead to manifest absurdity, against the hallowed and cherished practice of not giving effect to the provisions of a constitution in a manner that will make it to be in conflict with the other provisions of the same constitution.54

From the foregoing, therefore, one can safely conclude that the NIC as created by the NIC Act

2006, is not a superior court of record as stated in Section 1(3) of that Act, neither, does the court have the powers of the High Court as granted by the NIC Act 2006.Though, the court may, be better constituted than a High Court and may be performing excellently well in addressing the matters that, are brought before it, until the constitution is amended to mention the NIC as one of the superior courts in Nigeria, it remained an inferior court with subordinate powers and jurisdiction to the High court. Then, the Supreme Court in National Union of

Electricity Employees of Nigeria & 1 Or. v Bureau of Public Enterprises55 held that because the NIC was not expressly and directly listed in section 6 of the 1999 Constitution which contains the list of the superior courts of record in Nigeria, the NIC was an inferior court. The status of the NIC has finally been settled by the listing of the NIC in section 6(5)(cc) of the

1999 Constitution,56 which makes it now a superior court of record.

3.1.3. STATUS OF THE PRESIDENT AND OTHER JUDGES OF THE NATIONAL

INDUSTRIAL COURT.

Sections 4 and 5 of the NIC Act 2006 provide as follows:

54 See the dictum of Karibi Whyte in Udoh v OHMB & Anor (supra). 55 [2010] LPELR – 1966 SC.,(2010)7 NWLR (Pt.1194) 538 56 Through the Constitution Third Alteration Act, 2010. 50

(1) The President of the Court shall take precedence over the other judges of

the Court, and other judges shall take precedence after the President of

the Court in order of seniority.

(2) The President of the Court shall rank equal with the Chief of Judge of

the Federal High Court or of the High Court of the Federal Capital

Territory shall, in like manner, rank with the Judges of the Federal High

Court or High Court of the Federal Capital Territory, Abuja in

precedence and the Judges of the Court shall, in like manner, rank with

the Judges of the Federal High Court or the High Court of the Federal

Capital Territory, Abuja

5-(1) These shall be paid to:

(a) the President of the Court, such salaries, emoluments and allowances as

are payable to the 'Chief' Judge of the Federal High Court or of the High

Court of the Federal Capital Territory, Abuja; and

(b) a Judge of the Court, such salaries, emoluments and allowances as are

payable to a Judge of the Federal High Court or of the High Court of the

Federal Capital Territory, Abuja.

The question here is, can it be said that, the President of the NIC and the other Judges are judicial officers. Section 318 of the 1999 Constitution defined judicial officers. That section only, mentioned the various heads and judges of the courts enumerated in section 6(5) (a)-(i) of the 1999 Constitution as judicial officers and from our discussion above the NIC was not mentioned in that section before the Constitution Third Alteration Act 2010. From the

definition of judicial officer in section 318 of the 1999 Constitution one can safely submit that, the President and other Judges of the NIC are not judicial officers and therefore, cannot be placed in the same rank and status with the Chief Judge or High Court Judges as the NIC Act

2006 did in Section 4(2).

However, that section 318 of the 1999 Constitution has now been amended through the

Constitution Third Alteration Act 2010 aforesaid and the President of the NIC and the other judges of the Court are now constitutionally named as judicial officers.

3.1.4. JUDICIAL DIVISIONS

(1) There is only one Industrial Court of Nigeria exercising jurisdiction throughout the

country. Section 21(1) of the NIC Act 2006 provides thus:

The Court shall have and exercise jurisdiction throughout the Federation, and for that

purpose the whole area of the Federation shall be divided by the President of the Court

into such number of Judicial Divisions, as the President may, from time to time, by

instrument published in the Federal Gazette decide, and may, designate any such

Judicial Division or part thereof by such name as he thinks fit.

(2) The Court may sit in any judicial Division as the President of the Court may

direct, and he may also direct a number of judges to sit in any Judicial Division.

(3) The President of the Court shall determine the distribution of the business

before the Court amongst the Judges thereof and may assign any judicial

function to any judge or judges or in respect of a particular cause or matter in a

Judicial Division.

It is very categorical, from the above provisions that, the President of the Court is vested with powers to divide the court into judicial divisions and may designate any such judicial division or part of it by such names as he may deem fit.

Furthermore, the President is also given the powers to direct the place where the court may sit in any judicial division. Given the national geographical jurisdiction of the NIC, in which case, the whole country is one jurisdiction the requirements of sections 96 and 97 the Sheriffs and

Civil Process Act LFN 2004 are not required in cases commenced in the NIC. It is obvious that the NIC was not contemplated under the Sheriffs and Civil Process Act LFN 2004,57 for purposes of the requirements of especially section 97 thereof.

Before the enactment of the NIC Act 2006, there were 2 (two) divisions of the court namely;

Lagos Division and Abuja Division. But following the aforesaid provisions, the incumbent

President of the court58 created 9(nine) more judicial divisions now functioning namely,

Calabar, Enugu, Owerri, Port Harcourt, Akure, Ibadan, Jos, Makurdi and Kano, while Gombe and Bauchi are places of session. In all, eleven judicial divisions of the court are now sitting and functional which this writer, considers to be grossly inadequate. This fact was implicitly acknowledged by the President of the court, when he opined that:

57 Cap. S6 LFN 2004, In Anthony Adekunle Oyekanmi and ors v NITEL and anor., unreported Suit No. NIC/7/2008 delivered on July 15, 2008, the NIC held that:"…arguments were raised that service of processes were made outside of the jurisdiction of the court without leave of court being sought. We are in agreement with the claimants on this score that the jurisdiction of this court is national. Section 21 of the NIC is very specific when it says that the court shall have and exercise jurisdiction throughout the Federation. Since the whole country is the jurisdiction of the court, and the court is one, we do not see why leave of court is needed to serve processes within the said jurisdiction of the court. By our reckoning then, the arguments of the respondents in that regard go to no issue. 58 Honourable Justice B.A.Adejumo, OFR. 53

our focus at the National Industrial Court of Nigeria has been on how to bring

justice delivery to the doorsteps of the people at minimal pains, stress, risks,

costs and danger. To this end, we have made the establishment of more judicial

divisions a top priority. Our projection is to have about 20 fully operational

Judicial Divisions before the end of the first quarter in 2012.59

Even at that, there are 774 Local Government Areas, 36 States and the Federal Capital

Territory in Nigeria with an estimated population of about 200 million people. There are workers in these 774 Local Government Areas, 36 States and the Federal Capital Territory at those levels of government in Nigeria. Apart from that, it is very obvious that millions of

Nigerians and foreigners resident in Nigeria are engaged in the private sector of the economy of Nigeria either as employers or employees. It then follows naturally that, labour disputes needing resolution or adjudication by the NIC must occur. Therefore, there should be at least one judicial division of the NIC in every state of Nigeria and in the Federal Capital Territory, in order to actualise the focus of the court in bringing justice to the door steps of all Nigerians.

It is therefore recommended that, 13(thirteen) inclusive of the President of the NIC, as the minimum number of judges at all times should be increased to at least 37, and more judicial divisions should be created. Trained, competent and experienced judges should be appointed to boost the manpower capabilities of the court.

59Adejumo B.A., The Text of a Keynote Address at a One-Day Symposium on the Status, Power and Jurisdiction of the NIC, ibid P.3 54

3.1.5. COMPOSITION AND ASSIGNMENT OF CASES OF THE NATIONAL

INDUSTRIAL COURT.

There are two main provisions of the NIC Act 2006, which deal with the issue of Composition of the Court for sitting. The two provisions are Sections 21 (4) and 25. Section 21 (4) provides thus:

Subject to this Act, the Rules of Court made pursuant to section 36 of this Act

and the directions of the President of the Court, the Court shall be constituted of

not less than three judges. Provided that the Presiding Judge shall be a Judge

appointed under Subsection (3) or (4) (a) of section 2 of this Act,

While section 25 says that:

Every proceeding in the Court and all business arising there from shall, so far as

practicable and convenient and subject to the provisions of any enactment or

law and the rules of Court made pursuant to section 36 of this Act, be heard and

disposed of by a panel consisting of not less than three Judges as the President

of the court may direct, all proceedings in an action subsequent to the hearing or

trial, down to and including the final judgment or order, shall, so far as is

practicable and convenient, be taken before the panel of Judges before whom

the trial or hearing took place.

Both sections 21(4) and 25 are in agreement that “the court shall be constituted of not less than

3(three) judges.” This provision is mandatory for the court to sit in a panel of three judges

when hearing and determining substantive cases60 while by the provisions of subsection (5) of the aforesaid section 24 a single judge can only preside over and hear preliminary matters or interlocutory applications. This idea of sitting in a panel of (three) 3 judges, in dealing with any substantive case is arguably justifiable, in view of the fact that, no appeal shall lie to any court or to the Court of Appeal or any other tribunal in respect of any judgment of the NIC unless the issue at stake emanates from or touches on Chapter iv of the Constitution of Nigeria, that is to say; if the issue is one on the fundamental human rights of the litigants. However, by the provisions of section 254E of the 1999 Constitution, as amended, the Court shall be duly constituted, if it consists of a single Judge or not more than 3 Judges, in the determination of any cause or matter, both in the hearing of substantive cases and interlocutory applications as the President of the court may direct.

Furthermore, the President of the NIC may also sit alone, as a single judge or assign another single judge or create a panel of not more than three judges to hear and determine any matter falling within the jurisdiction of the court, whether civil or criminal.61

It has been submitted that, in practice the court now sits in a panel of three judges when hearing appeals either in respect of arbitral awards made by the IAP or against decisions of the

Registrar of Trade Unions or any administrative body or commission of enquiry arising from employment, labour, trade unions or industrial relation.

It is very important to note that, section 21(3) of the NIC Act 2006, further vests the President of the court power to distribute the business of the court filed among the judges and also to

60 Adetola-Kaseem G.A (SAN); Practice and Procedure at the National Industrial Court; being a paper delivered in a one day public symposium on the Status, Power and Jurisdiction of the NIC ibid P. 7 61 Section 254E (1-2) of the Third Alteration Act. 56

assign any judicial function to any judge or judges in respect of a particular cause or matter in any judicial Division. The implication then being that, the whole country is one territorial

Judicial Division. A matter that arose in Kano for instance, can be assigned to a Judge, sitting in a court in the Enugu Judicial Division by the President for hearing and determination and the matter will be heard there.

3.2. TRANSFER OF CASES:

3.2.1. INTRA NATIONAL INDUSTRIAL COURT

In Daniel Livingstone vs. People Plus Management Services Limited and Anor,62

following the creation of the Port Harcourt Division of the NIC counsel for the claimant

applied for a transfer of the matter from the Calabar Division to the Port Harcourt

Division of the court. He relied on Section 24(1) of the NIC Act 2006, in support of his

application. That section provides as follows:

A panel of Judges constituted to hear a case may, at any time or at any

stage of the proceedings in any cause or matter before final judgment,

either with or without application from any of the parties thereto,

transfer such cause or matter before the court to any other panel of

Judges.

The learned trial judge rejected that application and held that it is only the President of the court that has the power to transfer any case, to another judicial division of the court.

Consequently, he remitted the case file back to the President of the court for re-assignment.

62 Unreported suit No. NICN/CA/41/2012,delivered on June 19,2013. 57

The foregoing holding of that court, is supportable when viewed from the point of view of the power of transfer given to a panel of judges to transfer to another panel of judges, which literally excludes, a single judge sitting alone from exercising such power. However, it is arguable with the greatest respect that, in view of the fact that, section 24(1) aforesaid has been altered by section 254E(1) of the amended Constitution of the Federal Republic of Nigeria by providing the court to be properly constituted in hearing and determining all matters by a single judge sitting alone. Therefore, the power of transfer of a case from a judge of the NIC sitting alone in one judicial division to a judge of another division also sitting alone or to a panel of judges as the case may be allowed by amending section 24(1) of the NIC Act 2006. The practice of remitting every case for transfer to the president for re-assignment is with due respect circuitous and time wasting.

3.2.2. INTER NATIONAL INDUSTRIAL COURT.

The said section 24 of the NIC 2006 Act further provides as follows:

(1) No cause or matter shall be struck out by the Court merely on the ground

that such cause or matter was taken in the Court instead of the Federal

High Court or the High Court of a State or of the Federal Capital

Territory, Abuja in which it ought to have been brought, and the court

before whom such causes or matter is brought may cause such cause or

matter to be transferred to the appropriate Federal High Court or the

High Court of a State or of the Federal Capital Territory, Abuja in

accordance with Rules of Court to be made under section 36 of this Act.

(2) Notwithstanding anything to the contrary in any enactment or law, no

cause or matter shall be struck out by the Federal High Court or the High

Court of a State or of the Federal Capital Territory, Abuja 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 in

accordance with such rules of court as may be in force in that 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 foregoing provisions, are meant to save and ensure that, Suits which ordinarily would have been statute barred, if new suits were to be commenced in another court of coordinate jurisdiction, that is to say, in Federal High Court, Federal Capital Territory High Court, State

High Courts, Sharia or Customary courts of Appeal are saved.

From the above provisions, where the NIC finds that, it has no jurisdiction over a matter before it, it can order a transfer of the matter to the appropriate court vested with jurisdiction instead of striking it out. The advantage of this provision is that, such a matter may thereby not be caught up by the limitation period.63 Conversely, where any other court of coordinate

63 In UTA French Airlines v Williams [2000] 14 NWLR 271, an air traveller suing for lost baggage lost on account that she brought the action outside the two year limitation period allowed. She had first sued in a Lagos High Court before, on advice of the Lagos Chief Judge, she filed fresh processes at the Federal High Court. This latter case was held to be different from that of the Lagos High Court, hence it was caught up by the limitation period. 59

jurisdiction lacks the jurisdiction to try a case which jurisdiction is given to the NIC, it is empowered to transfer the matter before it to the NIC. Commentators have remarked on whether, the NIC Act 2006 can bind the other courts in this manner. Commenting on a similar provision applicable to the Federal High Court, it was submitted that; “such a provision is void as being inconsistent with [the] basic legal principle that, each court shall be governed by its own rules. Thus it would be incongruous for the Federal High Court Act to purport to legislate for the State High Courts.”64And that, where a State High Court finds that, it has no jurisdiction the proper order would be an order striking out the matter.65 This debate seems to have been laid to rest by the Court of Appeal in Echelunkwo John & 90 ors v Igbo-Etiti LGA,66 per

Okoro, JCA (as he then was). His Lordship frowned at the State High Court for refusing to be bound by section 24 of the NIC Act 2006, when asked to transfer the case to the NIC on the ground that, it lacked the jurisdiction to hear the matter, given the provisions of the

Constitution Third Alteration Act 2010, which gave exclusive jurisdiction to the NIC over labour related matters.67 The matter was commenced in the High Court of Enugu State holding at Nsukka, by the Plaintiffs asking for a declaration that, the defendant is in breach of their contract of employment it entered with the respective plaintiffs in 2002 amongst other reliefs.

Following the coming into force of the Constitution (Third Alteration) Act 2010, with commencement date from 4th March 2011, which gave exclusive jurisdiction to the National

Industrial court over the subject matter of the suit. The plaintiffs filed an application for the

64 See Ojukwu Ernest and Ojukwu Chudi N. – Introduction to Civil Procedure (Helen-Roberts: Abuja), 2005, 2nd ed. at p. 64. 65 Ibid, and see also Okoye v Nigerian Construction and Furniture Co. Ltd [1991] 7 SCNJ (Pt. 2) 365. 66 [2013] 7 NWLR (Pt. 1352) 1 especially at 14 – 17. 67 Kanyip B.B.; Current Status of the National Industrial Court Rules; being a paper presented at the Session on Current Issues at the National Industrial Court: Effect on Law Practice at the Annual Conference of the SPA- NBA, which held from 18th – 20th November 2013 in Makurdi, Benue State 60

transfer of the suit to the National Industrial Court, Enugu Division in accordance with section

24(3) of the Act aforesaid. The learned trial judge in his ruling struck out the suit instead of ordering for the transfer of same to the National Industrial Court as prayed.68

On appeal to the Court of Appeal Enugu Division, the Court of Appeal set aside the said ruling of the lower court and in its place transferred the matter from the High Court of Enugu State to the NIC Enugu Division in accordance with section 24(3) of the NIC Act 2006.

3.3. AMENDMENT.

There is no provision for amendment of pleadings either in the NIC Act 2006,or in the

National Industrial Court Rules 2007. Amendment is usually allowed to bring out the real issues in controversy between the parties. It is suggested with due respect that, a provision for amendment of proceedings and at what stages of proceedings that an amendment may be allowed.

3.4. INTERPRETATIONS

Section 54, is the interpretation section of the NIC Act 2006.That section defined the terms

'trade dispute', 'inter and intra union disputes' but they were not used in the body of the Act.

Rather, the following terms and or words; “labour disputes” and 'organizational disputes' were used, incidentally these words used were not defined by the Act. It has been argued69 that, as a result of the confusion generated in the judicial circle on the scope or the meaning of the term

“trade dispute” where the courts have refused to recognize that, inter and intra union disputes

68 delivered on the July 28, 2011 69 Adejumo, B.A., National Industrial Court, Past, Present and Future. Being a paper delivered at the Refresher Course organised for Judicial Officers between 3-5 years post appointment by the National Judicial Institute, Abuja at the Andrew Otutu Obaseki Auditorium NJI, Abuja on March 24,2011 61

are trade disputes.70 The NIC Act 2006, adopted a more neutral term of “labour dispute” to capture the whole spectrum of trade disputes under section 7 of the Act. Even though, section

54 (1) of the Act endeavoured to give wider meanings to the terms “inter-union” and “intra union" disputes as against what was contained in section 24, of the TDA 1990. Section 7 of the

NIC Act 2006, equally introduced the alternative concept of “organizational disputes” to cover a dispute either between organizations or within organizations. The fact that section 54(1) of the NIC Act, defines “organization” to include a trade union or an employers’ association signifies that the term “organizational dispute” would logically take cognizance of an inter or intra-union dispute. This was done to cure the confusion generated over inter and intra-union disputes.71

However, while agreeing with the foregoing argument, it is important to state that, contextual meaning ought to be ascribed to the actual words used in the Act. It is hereby recommended that those terms be defined to show the intended content and meaning as used in the NIC Act

2006.

70 See Kalango v Dokubo(supra) supra. 71 Adejumo B.A. ibid. See generally, Abuza Andrew E.; An examination of the Jurisdiction of the National Industrial Court in Nigeria, NJLIR Vol.2 No.4 P.7. 62

CHAPTER FOUR THE SCOPE OF THE JURISDICTION OF THE NATIONAL INDUSTRIALCOURT.

Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of the matters in a formal way for its decision.72 It is a threshold matter, a question of laws73, the reason being that, it is the heart and soul of a case.74 No matter how well a case is conducted, and decided if the court, had no jurisdiction to adjudicate, the whole exercise would amount to a nullity.75 Section 7 of the NIC Act 2006, provides for the jurisdiction of the NIC. It has both original and appellate jurisdictions. Also it is empowered with interpretative jurisdiction, which is arguably original as shall be seen later, in this research. The jurisdiction of the NIC as provided by the NIC Act 2006 is not exhaustive because while Section 53(1) of the NIC Act 2006 repealed Part II of the TDA only, section

53(2) preserved the other provisions of the said TDA which have provisions conferring jurisdiction over various matters in the NIC.

The original jurisdiction of the court connotes the issues on which the litigants can directly approach the court for the resolution of their disputes. In this, the court is a court of first instance, while on the other hand, the appellate jurisdiction of the court deals with provisions which require by implication that, the litigants may first go through the processes of Part I of

72 Isaiah v Shell Petroleum Ltd (2001) 5 SCNJ 220. 73 Usmanu Dan Fodiyo University v Krans Thompson Organisation Ltd (2001) 15 NWLR Pt.736,305.,Petro Jessica Enterprises Ltd v. Leventist Technical Co. Ltd.(Pt.244) 675,693. 74 NNPC v CLIFCO (2011) 46 NSCQR 114at 134. 75 Umanah v Attah (2006)17 NWLR (Pt 1009) 503,Alao v. ACB Ltd.(2006) 6 SC (Pt.1) 27 and Madukolu v Nkemdilim (1962) 1 All NLR 587. 63

the TDA, and thereafter, appear before the court by a referral of the matter by the Minister of labour acting pursuant to the provisions of the TDA.76

It has been suggested that, the original/appellate jurisdiction of the NIC is not water tight, as a referral to the court by the Minister of Labour pursuant to the provisions of Section 17 of the

TDA77 approximates to an original jurisdiction of the court given the fact that the matter is coming before the court for the first time without, the interposition of the processes of Part 1 of the Trade Disputes Act.78 This chapter shall examine in details the issues upon which the court has jurisdiction, and where necessary determine whether the jurisdiction granted the court is original, or appellate, or interpretative. It shall equally, be examined the methods of settlement under the TDA and other special powers as conferred by the Constitution Third Alteration Act

2010 on the NIC.

4.0 STATUTORY PROVISIONS

The jurisdiction of the NIC is provided by section 7 of the NIC Act 2006 thus:

(1) The Court shall have and exercise exclusive jurisdiction in civil causes

and matters-

(a) relating to-

(i) labour, including trade unions and industrial relations; and

(ii) environment and conditions of work, health, safety and

welfare of labour, and matters incidental thereof; and

76 Section 14(1) of the TDA 77 That section provides for direct reference to the NIC in certain special cases. 78 Kanyip B.B.; An Overview of the Scope of the Expanded Jurisdiction of the National Industrial of Nigeria. Being a paper delivered in a one day public Enlightenment Symposium on Status, Power and Jurisdiction conferred on the Court by the Constitution of the Federal Republic of Nigeria (Third Alteration Act)2010.Lagos Airport Hotel, Ikeja, Lagos, Monday, August 15,2011. 64

(b) relating to the grant of any order to restrain any person or body

from taking part in any strike, lock-out or any industrial action,

or any conduct in contemplation or in furtherance of strike, lock-

out or any industrial action;

interpretation of:

(i) any collective agreement

(ii) any award made by an arbitral tribunal in respect of a

labour dispute or an organizational dispute;

(iii) the terms of settlement of any labour dispute,

organizational dispute as may be recorded in any

memorandum of settlement,

(iv) any trade union constitution, and

(v) any award or judgment of the Court.

(2) The National Assembly may by an Act confer such additional

jurisdiction on the Court in respect of such other causes or matters

incidental, supplementary or related to those set out in subsection (1) of

this section.

(3) Notwithstanding anything to the contrary in this Act or any other

enactment or law, the National Assembly may by an Act prescribe that

any matter under subsection (1) (a) of this section may go through the

process of conciliation or arbitration before such matter is heard by the

Court.

(4) An appeal shall lie from the decisions of an arbitral tribunal to the Court as

of right in matters of disputes specified in subsection (1) (a) of this

section.

(5) For the purposes of subsection (4) of this section, a party to an arbitral

award shall be entitled to obtain a copy of the records of the arbitral

proceedings and the award from the arbitral tribunal.

(6) The Court shall, in exercising its jurisdiction or any of the powers conferred

upon it by this Act or any other enactment or law, have due regard to good or

international best practice in labour or industrial relations and what amounts to

good or international best practice in labour or industrial relations shall be a

question of fact.

(7) The Court may, upon hearing an appeal under subsection (4) of section 7 of this

Act, draw any inference of fact and

(a) confirm, vary or set aside the judgment, award or order of the

Court, tribunal or body mentioned therein; or

(b) order a rehearing and determination on such terms as the Court

may think just; or

(d) make a final or other order on such terms as the Court may think fit

to ensure the determination on the merits of the matter in dispute

between the parties.

(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 excepts as may be

prescribed by this act or any other Act of the National Assembly.

(2) An appeal from the decision of the Court shall lie only as of right to the Court of

Appeal only on question of fundamental rights as contained in Chapter IV of the

Constitution of the Federal Republic of Nigeria 1999.

(8) The Court shall have the power to enforce its judgment and accordingly, may

commit for contempt any person or a representative of a trade union or

employers’ organization who commits any act or an omission, which in the

opinion of the Court constitutes contempt of the Court.

It is important to also state that, the 1999 Constitution as amended by the Constitution Third

Alteration Act 2010, also provided for the jurisdiction of the NIC in section 254C-1 as follows:

Notwithstanding the provisions of sections 251, 257, 272 and anything

contained in this Constitution and in addition to such other jurisdiction as may

be conferred on 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 cases 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 matter

incidental thereto or connected therewith;

(b) Relating to, connected with or arising from Factories Act, Trade Disputes Act,

Trade Unions 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;

body from taking part in any strike, lockout or any industrial action, or any

conduct in contemplation or in furtherance of a strike, lock-out or any industrial

action and matter 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, employers 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 relation matters;

(g) Relating to or connected with any dispute arising from discrimination or sexual

harassment at the workplace;

(h) Relating to, connected with or pertaining to the application or interpretation of

international labour standard;

(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 or judgment of the court;

(iv) term 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 trade disputes arising from payment or non-

payment of salaries, wages, pensions, gratuities, allowances, benefits and any

other entitlement of any employee, worker, political or public office holder,

judicial officer or any civil or public servant in any part of the Federation and

matters incidental thereto;

(1) 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;

(m) relating to or connected with the registration of collective

agreements.

(2) Notwithstanding anything to the contrary in this Constitution, the National

Industrial Court shall have the 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 or matters connected therewith.

(3) The National Industrial Court may establish an Alternative Dispute Resolutions

Centre within the Court premises on matters on which jurisdictions are

conferred on the Court by this Constitution or any other Act or Law:

Provided that nothing in this subsection shall preclude the National Industrial

Court from entertaining and exercising appellate and supervisory jurisdiction

over an arbitral tribunal or commission, administrative body, or board of inquiry

in respect of any matter that the National Industrial Court has jurisdiction to

entertain or any other matter as may be prescribed by an Act of the National

Assembly or any Law in force in any part of the Federation.

(4) The National Industrial Court shall have and exercise jurisdiction and powers to

entertain any application for the enforcement of the award, decision, ruling or

order made by any arbitral tribunal or commission, administrative body, or

board of inquiry relating to, connected with, arising from or pertaining to any

matter of which the National Industrial Court has the jurisdiction to entertain.

(5) The National Industrial Court shall have and exercise jurisdiction and powers in

criminal causes and matters arising from any cause or matter of which

jurisdiction is conferred on the National Industrial Court by this section or any

Act of the National Assembly or by any other Law.

(6) Notwithstanding anything to the contrary in this constitution, appeal shall lie

from the decision of the National Industrial Court from matters in sub-section 5

of this section to the Court of Appeal.

4.1. ORIGINAL/APPELLATE JURISDICTION

It has been noted that the TDA, also conferred jurisdiction on the NIC over certain issues. It has equally been stated above, that the jurisdiction conferred on the NIC by section 7 of the

NIC Act 2006, could be original, appellate or interpretative, making it imperative to discuss those provisions or items closely. The first issue to determine is whether, the jurisdiction granted the NIC under section 7(1)(a)(i) of the NIC Act 2006, is original or appellate, that section gave the NIC exclusive jurisdiction in civil causes and matters relating to : (i) labour, including trade unions and industrial relations.

Ordinarily, it is easy to conclude that, the jurisdiction granted to the court herein is original jurisdiction. But, a proper analysis of the provisions of the TDA, and the procedure for settlement of disputes as provided by the TDA will prove otherwise. It is therefore, important 72

at this point to have a brief summary of the procedure for settlement of disputes as laid down by the TDA.

4.2. PROCEDURE FOR SETTLEMENT OF DISPUTES UNDER THE TRADE

DISPUTES ACT

Part 1 of the TDA which is titled; “Procedure for Settling Trade Disputes” was originally meant to regulate trade disputes,79 a trade dispute is defined in the Act as; “any dispute between employees and workers or workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person”80

Under Section 3 of the TDA, if there is an agreed means for settlement of the disputes by the parties, they parties shall first attempt to settle it by that, means failure of that method, then the procedure as provided by the Act shall be followed.

4.2.1. MEDIATION

If that attempt of settling the dispute by the agreed means of settlement by the parties above fails, the parties shall within seven days of the date on which the dispute arises or is first apprehended meet under a mediator, mutually agreed upon between the parties, with a view to an amicable settlement of the dispute . If the dispute is not settled within 14 days of the date on which a mediator is appointed, the dispute shall be reported to the Minister in writing. The

Minister here is the Hon. Minister of Employment, Labour and Productivity. It has been

79 It consists of sections 1 – 18. 80 section 48(1) of the TDA 73

submitted that mediation marks the end of voluntary mechanism of settlement of disputes under the TDA.81

4.2.2. CONCILIATION

The Minister has the powers under Section 6, to ensure that the processes enumerated under

Sections 382 and 483 of the TDA, have been compiled with. If the dispute remains unsettled within the period stipulated by the Minister, he will appoint a conciliator for the purpose of effecting a settlement of the dispute. If a settlement of the dispute is reached, within 7 days of his appointment the conciliator shall report the fact to the Minister, and forward to him a memorandum of the terms of the settlement. If a settlement of the dispute is not reached within

7 days of his appointment, the matter is, then referred by the Minister to the Industrial

Arbitration Panel for settlement within 14 days of receipt of the conciliator’s report.

4.2.3. ARBITRATION

An Arbitration Panel is obliged to make its award within 21 days of its Constitution, or such longer period as the Minister may in any particular case allow. On receipt of a copy of the award, the Minister shall cause it to be given to the parties or their representatives. The award is then published in the manner deemed fit by the Minister. If there are no objections, the award is then confirmed. If notice of objection is given to the Minister, the dispute is then

81 Agomo C.K.; Nigerian Employment and Labour Relations Law and Practice. Concepts Publications Limited 2011,pg. 313. 82 Parties are under obligation to deposit 3 copies of any collective agreement reached by them for the settlement of disputes with the Minister. 83 This section deals with the procedure before a dispute is reported, that is the agreed means of settlement by the parties. 74

referred to the NIC. This provision of law has been altered by section 7(5) of NIC Act, 2006.

Under this section the parties have the right to apply directly to the Court.84

4.2.4. BOARD OF ENQUIRY

The Minister has the power to constitute a board of inquiry, under Section 32 and 33 of the

TDA. This is another mechanism for the resolution of trade disputes. Under Section 32(1), of the TDA, the board is statutorily expected to only inquire into the causes and circumstances of the trade dispute, in question and report to the Minister.

However, the role of the Minister in the ultimate resolution of dispute, under the above provisions of the TDA is very significant and weighty. For there to be industrial harmony, the labour/trade disputes resolution mechanisms put in place by law must be applied in a manner that will guarantee their certainty, reliability, dependability and consistency. The Court should, as well endeavour to deliver justice in consonance with these attributes. The processes provided by the TDA are to ensure that attempt is made, to settle the dispute through the processes of mediation, conciliation and arbitration before the matter is referred to National

Industrial Court as an appellate court.

To further appreciate the issue at hand, that is whether, the jurisdiction granted the NIC by

Section 7(1)(a)(i) is original or appellate? It is the view of this writer that, this controversy may

84 See generally, Amucheazi O.D. and Ama-Oji Lizzy; Resolution of Labour Disputes in Nigeria, NJLIR Vol.3 No.3(2009) p.1.Obiozor C.A, Settlement of Trade Disputes in Nigeria: Reflections on Section 1(3)(a) of the National Industrial Court Act 2006, NJLIRVol.4 No.3(2010) p.69, Arowosegbe Oluwakayode O.; National Industrial Court and the Quest for Industrial Harmony and Sustainable Growth and Development in Nigeria, NJLIR Vol.5 No.4 (2011) P.7.Adewunmi Afolasade A.; National Industrial Court and the Prospects of Efficient Industrial Conflict Resolution in Nigeria, NJLIR Vol.7 No.3 (2013) P.1. Adejumo B.A.; National Industrial Court: Our Journey from Obscurity, Daily Sun, Wednesday 24,2009,P.44 75

be resolved, when the said section 7(1) (a)(i) is read together with, Section 7 (3) of the NIC

Act 2006. Section7 (3) provides thus:

Notwithstanding anything to the contrary in this Act or any other enactment or

law, the National Assembly may by an Act prescribe that any matter under

subsection (1) (a) of this section may go through the process of conciliation or

arbitration before such matter is heard by the Court.

The use of the word 'Notwithstanding' is very instructive because when it is used in a section of a statute "it is meant to exclude an impending effect of any other provision of the statute or other subordinate legislation so that, the said section may fulfil itself"85

In AUPCTRE v FCDA and ors86, the NIC had this to say on section 7(3) –

… the word, “Notwithstanding”, in section 7(3) is meant to qualify the

jurisdiction granted the NIC until conciliation and arbitration, if provided for,

have been done. It is to reinforce this stance of the law that section 7(4) of the

NIC Act provides that an appeal shall lie from the decision of an arbitral

tribunal to this court as of right in matters of disputes specified in section

7(1)(a) of the NIC Act. In appropriate case, the original jurisdiction of this court

may, by an Act of the National Assembly, be made contingent upon exhausting

the processes of conciliation and arbitration. Where this is the case, the position

is not that the jurisdiction of the court has been ousted; only that it is contingent

upon those processes being exhausted.

85 Per Aderemi JSC in Ladoja v INEC(2007) 31 NSCQR 242@304, see also NDIC v Okem Ltd & anor.(2004) 10NWLR(Pt.880) 107 @182 -183 86 (2008) 10 N.L.L.R (Pt.26) Pg.304. 76

The implication therefore, is that, those matters listed in section 7 (1) (a) (i) which had to go through the processes of Part I of the TDA will continue to go through those processes even after the passing of the NIC Act 2006.87 Also in Asuzu & Ors. v Ajewole & Ors.,88the court also held that inter and intra-union disputes fall within trade disputes which must pass through the process of conciliation and arbitration before the court can have competence to entertain such matters.

Before then in Maritime Workers Union of Nigeria and 10 others v Nigeria Labour Congress and 17 others,89 the court held that the following provisions of the Trade Disputes Act, CAP

432 L.F.N. 1990 expressly conferred original jurisdiction on this court:

(i) Section 14(1) – Interpretation of any award made by an Arbitration

Tribunal or by the Court itself.

(ii) Section 15(1) – Interpretation of any term or provision of any Collective

Agreement.

(iii) Section 19(1) – Interpretation of collective agreements and matters

connected therewith.

Section 20(1) – Confers jurisdiction on the Court

(a) To make awards for the purpose of settling trade disputes referred

to it by the Minister of Labour under S.13 and

(b) To determine questions as to the interpretation of -

87 Ogunyale & Ors v Globacom Nigeria Ltd (2009) 14 NLLR (Pt.39)399@426-427 88 (2009) 14 NLLR (Pt.39) 434@ 455(G),456(B-E) 89 (2005) 4 NLLR (Pt.10) 77

(i) any collective agreement

(ii) any award made by an arbitration tribunal or by

the Court itself.

The terms of settlement of any trade dispute as recorded in any memorandum under S.7 of the principal Act.

Therefore, intra-union dispute is clearly not listed as one of the actions in respect of which jurisdiction at first instance, is conferred on this Court. An intra-union dispute… is different from a trade dispute defined in section 47, thus: “any dispute between employers and workers and workers which is connected with the employment or non-employment or the terms of employment and physical conditions of work of any person”.

Subsequently, following the above reasoning the NIC in; National Union of Hotels and

Personal Services Workers (NUHPSW) v National Union of Food, Beverage and Tobacco

Employers (NUFBTE) and another90 held that:

"This court as agreed by the second respondent has been called upon in previous cases to decide the scope of its jurisdiction in inter and intra-union disputes”. In the cases of Senior

Staff Association of Statutory Corporation and Government Owned Companies, Nigerian Ports

Authority Branch & Ors v Senior Staff Association of Statutory Corporations and Government

Owned Companies91, and Maritime Workers Union of Nigeria and Ors v NLC & Ors92 this

90 (2004) 1 NLLR (Pt.2) 286 see also Atilola Bimbo; National Industrial Court of Nigeria and Exclusive Jurisdiction on Labour, Trade Union and Employment Related Matters under the Third Alteration Act: A Review of N.U.T, Niger State v C.O.S.S.T, Niger State, NJLIR Vol.6 No.2(2012) p.6 91 unreported Suit No. NIC/8A/2001 decided on July 3, 2001 92 (2005) NLLR(Pt.10) 270. 78

court was emphatic that in inter and intra-union disputes, its jurisdiction is appellate, not original as canvassed by counsel. We reasoned that since section 1(A) of the TDA, as inserted by Decree No. 47 of 1992, bars commencement of an action relating to a trade dispute, inter or intra-union dispute in any court of law, and this court is also a court of law, the intention of the framers of Decree 47 of 1992 must be that inter and intra-union disputes should first go through the processes of Part 1 of the TDA given that the processes are not judicial in the strict sense."93

Thus, the position of the NIC has always been that, the processes enumerated under Sections 1

– 18 of TDA must be followed religiously before the jurisdiction of the Court can be activated.

From the foregoing, therefore, it is safe to conclude that the jurisdiction granted the NIC in

Section 7 (1) (a) (i) is appellate and not original.

However, it can safely still be argued that, the use of the adverb may in Section 7(3) does not import compulsion. Because had the makers of that, law intended it to be mandatory, they would have used the word shall instead of may. 94 The holding of the NIC in Ogunyale &

ORS. v Globacom & Ors(supra), Asuzu & Ors. v Ajewole & Ors,(supra), Maritime Workers

Union of Nigeria and Ors v. NLC & Ors(supra), and in many other cases by reading a mandatory meaning into that provision therefore, is with the greatest respect arguably wrong.

93 Granted that the case was decided before the coming into force of the NIC Act 2006,that remains the position of the law in view of the fact that Part 1 of the TDA is still extant and saved by section 53 of the NIC Act 2006 aforesaid, In Benson & ors NASU & ors., Suit No. NIC/56/2007(unreported) delivered on 9/6/2008,the issue in controversy was an intra-union dispute for which the NIC held that it lacks the original jurisdiction to entertain. 94 Ajilemele v Opara (1998) 9NWLR (Pt.567) 587,Ifezue v Maduagha (1984)1SCNLR 427,Oyeyipo v Oyinloye (1987)1 NWLR (Pt.50)356 and Achineku v Ishagha (1988) 4NWLR (Pt.89) 411. 79

The end point by those decisions is that no trade dispute can be referred to the NIC, unless on appeal after, exhausting the processes already laid down under Part 1 of the TDA.

The decision of the Court of Appeal in N.U.T. Niger State v C.O.S.S.T. Niger State95provided a novel situation.

The facts of this case are that, by an application for the enforcement of fundamental human rights to freedom of association filed on the 14th January, 2004, the 1st to 11th

Plaintiffs/Respondents sued the appellant and the 12th, to 16th respondents at the High Court of

Justice, Minna, Niger State for the following reliefs:

1. A declaration that the applicants are entitled to organise or form themselves into an

association for the protection of their rights and interests in accordance with the

provisions of 1999 Constitution.

2. A declaration that the 1st applicant being a registered body known to law, is a

legitimate body for which the 2nd to 11th applicants and all other secondary school

tutors in Niger State can freely associate with and/or belong to for the protection of

their common interest.

3. A declaration that by virtue of provisions of the Constitution, the applicants reserve

the right to cease or withdraw their membership from (NUT) and the rest

respondents cannot compel the applicants to remain members of the same NUT (1st

respondent)

4. A perpetual injunction restraining the respondents especially 1st , 2nd , and 4th

respondents from treating or recognising the applicants as members of the 1st

95 (2012) 10 NWLR Pt.1307,p.89. 80

respondent and in particular restraining the 1st respondent from demanding or in any

way deducting from the salaries of the appellants the membership dues as check-off

dues.

5. An order compelling the 2nd, 3rd and 4th respondents to recognise the 1st applicant in

Niger State as a legitimate body or association and to allow the 2nd to 7th applicants

to function as its State Executive Officers for the promotion and protection of the

interest and the common goal of the 1st applicant in Niger State.

6. An order declaring as null and void the definite suspension of 2nd, 4th, 6th, 8th, 9th,

10th and 11th applicants from Niger State Government Service vide 4th respondent’s

letter dated 16th December 2003 with reference No: NSSEB/SEC/14/VOL 1/65

ostensible for being members of the 1st applicant.

The appellant challenged the jurisdiction of the High Court to adjudicate on the

matter, on the ground, inter alia, that the 1st – 11th Respondents suit raised inter and

intra union disputes for which the Trade Disputes (Amendment) Act, No. 47 of

1992 excluded the jurisdiction of the High Court to entertain.

The High Court dismissed the application and held that it had jurisdiction to entertain the matter. Dissatisfied with the decision, the appellant appealed to the Court of Appeal and formulated the following two issues for determination:

1. Whether the learned trial judge was right to assume jurisdiction to try the case

being an inter or intra union dispute and a trade dispute notwithstanding the

exclusionary provision of Section 1A of the Trade Dispute Act as amended by

Section 1A, Trade Disputes Amendment Act, No. 47 of 1992.

2. Whether the learned trial judge was right to totally relying on the decision of the

Court of Appeal in A. G. (Oyo) v Nigeria Labour Congress [2003] 16 NWLR

pt. 821 page 1 in assuming jurisdiction to entertain the case when the said court

failed to consider the effect of Section 316(1) of the 1999 Constitution which

reserved the jurisdiction of the National Industrial Court as an existing Court in

arriving at its decision in that case.

The appeal also raised the question of the constitutionality or otherwise of the provisions of the

Trade Disputes Act. However, after the decision appealed against and while the appeal was pending, the law on the question of jurisdiction in labour, employment, trade unions and industrial relations, changed by virtue of the Constitution of the Federal Republic of Nigeria

(Third Alteration) Act, 2010.

The Constitution Alteration Act 2010, conferred exclusive jurisdiction on the National

Industrial Court of Nigeria in respect of matters and causes relating to 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.

The Court of Appeal unanimously held that, the subject matter of the case is an intra union dispute and therefore qualifies as a trade dispute within the meaning of the Trade Dispute Act.

The Court further held that, the Constitution Third Alteration Act 2010, had divested the High

Courts of jurisdiction over trade dispute matters and therefore directed that the matter be transferred to the National Industrial Court of Nigeria for trial.

In Nigeria today, there is no doubt the fact that, government is the greatest employer of labour and represented by the Minister of Labour and Productivity, who also directs the processes of resolution of trade disputes under the Part 1 of the TDA, clearly, against the fundamental principle of fair hearing; nemo judex in causasua. The NIC is therefore, called upon to use the earliest opportunity henceforth to reverse itself by making that provision optional to parties to either approach the NIC directly or go through the processes of Part 1 of the TDA if they so wish.

Also, in respect of Section 7(1) (a) (ii) the jurisdiction conferred on the court is in respect of environment and conditions of work, health, safety and welfare of labour. Initially, it was doubtful whether the NIC could exercise jurisdiction over those matters because they were matters under the Factories Act96 which conferred jurisdiction on those issues on some other courts.

But the Constitution (Third) Alteration Act 2010 cleared that doubt and specifically granted the

NIC the jurisdiction to entertain them.97 These matters are not within the purview of the TDA, and therefore, outside the requirement of going through the processes of Part 1 of the TDA before being brought to the NIC as required by Section 7(3) aforesaid.

However they are caught up by the provisions of Section 7(4) which states that an appeal shall lie from the decisions of an arbitral tribunal to the Court as of right in matters of disputes specified in subsection (1) (a) of this section.

96 See sections 69-81,CAP F1 LFN 2004 97 See Section 254C (1)(a)&(b) of the 1999 Constitution as amended.

Since Part I of the TDA is not applicable in respect of issues under Section 7 (1)(a)(ii) to which an appeal shall lie over the decisions of an arbitral tribunal to the NIC by the provision of

Section 7(4) ,it is correct then to conclude that the IAP certainly is not the arbitral tribunal contemplated herein. The foregoing conclusion is further, fortified by the fact that there is no law conferring jurisdiction on the IAP over those matters.

Not only that, the TDA itself has no jurisdictional section for the IAP, neither is there a corresponding provision therein that says that the IAP can do such other things as the National

Assembly may by law prescribe.

The question then is to which arbitral tribunal is contemplated by that Section 7(4) of the NIC

Act 2006 to which an appeal shall lie to the NIC over its decision? Does it then mean that, parties must first undergo private arbitration over those issues covered by Section 7 (1) (a) (ii) aforesaid, before coming to the court in which case, the jurisdiction granted the court therein is appellate and not original or that parties may undergo arbitration if they so wish in which case the arbitral process is not mandatory and they can approach the court on appeal over the arbitral award?

This optional arbitration does not seem to be the intendment of the Act, it is rather sustainable to submit that, it is intended that parties should undergo private arbitration over those issues before approaching the court. More so, when regard is heard to the provision of Section

254C(3), of the Constitution as amended by the Constitution (Third) Alteration Act 2010, which provides that: “The National Industrial Court may establish an Alternative Dispute

Resolution Centre within the court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law.”

The idea being that, parties must first undergo arbitration by using the facilities as provided by the ADR Centre. But the contemplated arbitration centre has not been established and not functional. The Honourable, the President of the NIC is hereby called upon to hasten the establishment of the Centre. It is the considered opinion of this writer, that in view of the provision of Section 7(4) aforesaid, the jurisdiction granted the court under section7 (1)(a)(ii) of the NIC Act 2006 is also appellate. However under the Constitution (Third) Alteration Act

2010 the NIC is specifically granted original jurisdiction over those matters98.

4.3. JURISDICTION OVER STRIKE MATTERS

Section 7(1)(b) of the NIC Act 2006, granted the NIC jurisdiction relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of strike, lock-out or any industrial action;

The jurisdiction granted the NIC under this Section 7(1)(b) is not only original, but very instructive in that, the object of any order to restrain from taking part in any strike, lockout or any industrial action or any conduct in contemplation or furtherance thereof, is not only against registered trade unions but also against any person or body of persons.

In other words, professional associations and persons or employers' associations can sue or be sued as long as the subject of litigation falls within the issues contemplated under that Section

7(1)(b). Not only that, the restraint shall be from taking part in any strike. The use of that

98 Section 254C (1)(a) & (b) of the Constitution as amended. 85

phrase any strike in that sub section, makes it very imperative to discuss briefly the issue of strike. More so, in view of the amendments to the Trade Union Acts99 which made certain types of strike unlawful.

Strike, is generally understood to be a deliberate stoppage of work by workers in order to put pressure on their employer to accede to their demands.100 The Trade Dispute Act defined strike, as the cessation of work by a body of persons employed acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as means of compelling their employer or any person or body or persons employed, to accept or not to accept terms of employment and physical conditions of work; and in this definition:

(a)"cessation of work" includes deliberately working at less than usual speed or with

less than usual efficiency; and (b)"refusal to work" includes a refusal to work at usual

speed or with usual efficiency.101

The above definition, is clear on the point that, for there to be a strike there should be an action by a group of persons who must be employees acting in concert. In other words, the Act contemplates the existence of employees/workers on the one hand and the employer(s) on the other hand, and the medium of striking, being cessation of work and or refusal to continue to work102. In legal terms, they include but not limited to work- to-rule, go-slow, work stoppage, work-in, overtime ban and picketing. The end point, is the interruption of economic activities

99 The Trades Union Amendment Acts, 2005. See generally, Odey Stephen A. and Young Asari E.; An Appraisal of the Trade Unions (Amendment) Act 2995: Implications & Challenges for Effective Bargaining and Industrial Conflict Resolution, NJLIR Vol.2 No.2(2008) P.81. 100 Okene O.V.C; Political Strikes and the Limits of Legitimate Industrial Action, Policy Issues, Emerging Challenges and Way Forward. NJLIR Vol.4 NO.3 (2010). 101 Section 48 TDA; Agomo C.K. Nigeria Employment and Labour Relations Law and Practice op.cit Pg.299. 102 Uvieghara E. E.; Labour Law in Nigeria op.cit p. 86

in a work place, with a view of inducing pressure on the employer(s), for a purpose revolving on the terms of employment and the physical conditions of work. Unsatisfactory terms and work conditions normally generate discord in industrial relations.103Employment terms range from remuneration such as basic pay and allowances to social security benefits such as gratuity and Pension. Physical conditions of work include provisions of safe place of work, good and adequate working materials and employment of competent staff.104

From the foregoing, it is arguable that, the purpose of strike under the industrial relations is purely an economic weapon which, occurs in the course of conflict between employers and employees concerning wages and working conditions.105 Fuelled and generated in Nigeria by the absence of mutual trust and confidence between employers and employee.106

4.3.1. POLITICAL STRIKES However, it is not every strike that is intended against an employer. There is a class of strikes often referred to as “Political Strikes,”107 which do not aim to improve the workers' conditions of employment directly but, are used as Political weapon directed against the government in order to bring about a change in policy. It has been argued that, the main goal of trade unions should be job regulation and not political change. The weapon of strike should only be reserved for job related government policies, therefore, trade unions have no business

103 Amadi G.O.S; Legal Guide to Trade Unions. op.cit p. 76. 104 ibid. 105 Okene O.V.C. op.cit p.23 106 Amadi G.O.S, Political Jaywalking and Legal Jiggery-Pokery in the Governance of Nigeria: Wherein Lies the Rule of Law? An inaugural lecture of the University of Nigeria delivered on March 31,2011.University of Nigeria Press Ltd. Nsukka.p.121. 107 Okene O.V.C. op.cit. pgs.30-31 87

indulging in strikes, which are non-occupational in character, and which have no occupational motivation.108

Conversely, it has been submitted that a bad government normally generates political instability and this in turn stunts national development. Consequently, workers' social- economic welfare will no doubt be affected negatively by a ruined economy, brought about by political instability. Herein lies the link between strikes and politics.109A good example of a political strike is that, strike declared by NUPENG (National Union of Petroleum and Natural

Gas Workers and PENGASSAN (Petroleum and Natural Gas Senior Staff Association of

Nigeria) on 4 July 1994, demanding, among other things, that the Military government in

Nigeria then, should disengage forthwith, having failed to address the political and economic problems of the country, and the immediate and unconditional release of Chief MKO Abiola, the acclaimed winner of the annulled June 12, 1993 Presidential election. The workers insisted that given the political and economic climate, it was very difficult to isolate trade unions or economic struggles from political struggles.110

In FGN v Adams Oshiomhole 111 the Nigeria Labour Congress called a general strike against the government policy of increasing the prices of petroleum products. The Court of Appeal held that it was not a legitimate trade dispute in view of the subject matter and that; the action was merely a strike against the government qua government.

108 Echianu E. Employment Law, Bemico v Publishers Nigeria ltd,2004 pgs.286-287 109 Amadi G.O.S; Legal Guide To Trade Unions, op.cit pgs75-76. 110 Adewunmi F. and Fajana S.; Workers' Rights and Labour Standards in Nigeria. University of Lagos Press 2008 p.89. 111 (2005) 1NWLR(Pt.907)414 88

It does appear that, the government in order to eradicate this class of strike amended Section

30, of the Trade Unions Act,112(hereinafter called the TUA) by the Trade Union Amendment

Act 2005, by adding a new subsection (6) to it which provides thus.

No person, trade union or employer shall take part in a strike or lockout or

engage in any conduct in contemplation or furtherance of a strike or lockout

unless:

a. The person, trade union or employer is not engaged in the provision of

essential services;

b. The strike or lockout concerns a labour dispute that constitutes a dispute of

right.

c. The strike or lockout concerns a dispute arising from a collective and

fundamental breach of contract of employment of collective agreement on

the part of the employee, trade union or employer,

d. The provision for the arbitration in the Trade Dispute Act…has first been

complied with…

Besides, section 6 (7) of the TUA makes it an offence for any person or trade union to contravene the provision of this section. Thus no strike in Nigeria can be lawful without contravention of this section and the provision of the Trade Dispute Act.

112 Cap 437 LFN 1990 now Cap T14 LFN 2004,see section 6(6) of Trade Union (Amendment) Act 2005.See Worugji I.N.E and Archibong J.A., Legal Response to Strike in Nigeria: A Call or a New Legal Regime, NJLIR Vol.3 No.1 (2009) P.11.Danesi Rosemary A.; The Trade Union (Amendment) Act 2005 and Labour Reform in Nigeria: Legal Implications and Challenges, NJLIR Vol.1 No,1(2007) P.95. Okene O.V.C.; The Devil is in the Detail: The Trade Unions Law (Amendment) Act 2005 in International Perspective, NJLIR Vol.2 No.3 (2008) P.31 89

Reacting to this amendment it was submitted that before this amendment the right to strike has been highly circumscribed by section 17 of the TDA, 113therefore there was really no point in banning strikes again as the amendment Act has done.114

The NIC Act 2006, has no section conferring jurisdiction on the NIC to try criminal matters.

However, the Constitution Third Alteration Act 2010 granted the NIC the jurisdiction to try criminal offenders on those causes and matters arising from any cause or matter on which, jurisdiction is conferred on the court.115 The implication of the foregoing provision is that the

NIC is now constitutionally empowered to try and punish violators of the provisions of the

TUA as it relates to strike or acts in furtherance of or in contemplation of strike, lock-out or any industrial action, if such violations are criminal in nature.

4.4. THE INTERPRETATIVE JURISDICTION.

In section 7(1)(c)(i)-(v), the interpretative jurisdiction of the NIC is provided by Section 7

(1)(c)(i) –(v) thus:

interpretation of-

(i) any collective agreement

(ii) any award made by an arbitral tribunal in respect of a labour dispute or

an organizational dispute;

113 Cap 432 LFN 1990, now section 18 of CAP T8 LFN 2004. 114 Danesi R.A.; The Trade Unions( Amendment) Act 2005 and Labour Reform in Nigeria; Legal implications and Challenges. NJLIR Vol. No.1 (2007) p.108 115 Section254 C (5) 90

(iii) the terms of settlement of any labour dispute, organizational dispute as

may be recorded in any memorandum of settlement,

(iv) any trade union constitution, and

(v) any award or judgment of the Court.

The foregoing provisions constitute part of the original jurisdiction of the court. Because under

Section 18(3) of the TDA, reference of disputes in respect of any of those issues above to the

NIC are treated as fresh disputes. That section provides thus :

It is hereby declared that where a dispute is settled under the fore going

provision of this Act either by agreement or the acceptance of an award made

by an Arbitration tribunal under section 13 of this Act , that dispute shall be

deemed for the purpose of this Act to have ended ; and accordingly any further

trade dispute involving the same matters (including a trade dispute as to the

interpretation of an award made as aforesaid by which the original dispute was

settled) shall be treated for the purpose of this section as a different trade

dispute.

They are therefore, not required to undergo through the processes of Part 1 of the TDA, because they are statutorily caught under the original jurisdiction of the NIC under Sections 15 of the TDA.116 It is important to look at those issues seriatim:

116 See Kanyip B.B ibid p.21,Comrade Olu Solademi & ors v E.C.Edeji & ors unreported suit No.NIC/12M/2003 delivered on June 6,2009 , Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees v Agricultural and Allied Workers Union of Nigeria unreported suit No.NIC/17M/1995 ruling delivered on April 8 2009. 91

4.4.1. COLLECTIVE AGREEMENT

By Section 54(1) of the NIC Act 2006

"Collective Agreement” means any agreement in writing regarding working

conditions and terms of employment concluded between:

(a) an organization of employers or an organization representing employers

(or an association of such organization), of the one part, and

(b) an organization of employees or an organization representing

employees (or an association of such organizations) of the other part.

It extends to all negotiations which, take place between an employer, a group of employers or one or more employers' organisations on the one hand, and one or more workers' organisations', on the other hand for :

(a) determining working conditions and terms of employment; and or

(b) regulating relations between employers and workers; and or

organisation or workers' organisations.117

It can be summarized as, an agreement reached on behalf of employees, between their trade union, and employer(s) through a process called collective bargaining.

Under Section 16 of the TDA, it is either the Minister of Labour or a party to the collective agreement that can activate the interpretation clause by an application to the National Industrial

Court, for the interpretation of any term or provision of the collective agreement.

117 Article 2 of The Collective Bargaining Convention,1981(No.154) 92

Upon such application, the court shall decide the matter after hearing the Minister or, as the case may be the parties to the collective agreement or with the consent of the Minister or of the parties, without hearing them; and the decision of the court shall be final and conclusive with respect to the interpretation of the term or provision of the collective agreement concerned118.

In the case of, National Union of Hotels and Personal Service Workers v Whassan Eurest

Nigeria Ltd119 the court held that, to activate the interpretative jurisdiction of the court in respect of a collective agreement, there must be sufficient nexus between the applicant and the collective agreement in question. It is not enough that, the applicant is a beneficiary of the collective agreement without more. To be entitled, there must be proof that, the beneficiary is a member of the signatory trade union to the collective agreement as was also held in Itodo and ors. V. Chevron Texaco Nigeria120.

Above all, it must also be shown that, the party against whom the interpretation is sought must be bound by the collective agreement, that is to say, he must be a party to the collective agreement.121. The interpretation jurisdiction of the NIC is positive and direct. In other words, it cannot be in vacuum, the provision or term of the collective agreement sought to be interpreted must be indicated.122

118 See section 16(2) of the TDA. 119(2005) 2 NLLR (Pt.4) 145 atp.154 120 (2005) 2NLLR (PT.5) 200 121 Joy Maskew & ors v Tidex Nigeria limited unreported suit No.NIC/1M/98 delivered on November 25,2008. 122 Hotel and Personal Services Senior Staff Association v Tourist Company OF Nigeria Plc, unreported suit No.NIC/14/2002 delivered on27 October 2004,also National Union of Hotel and Personal Services Workers v Palisco Nigeria Limited and anor. unreported suit No. NIC/15/2000 delivered on April 27,2006. 93

4.4.2. JUSTICEABILITY OF COLLECTIVE AGREEMENTS.

An enactment is justiciable if and only if, it can be pursued before a court of law or

tribunal for enforceable decision. But where a court cannot enforce such enactment

then, it becomes non-justiciable and has no legal consequence.123 Thus, the factual

situation on which a plaintiff relies to support his claim must be recognised by law, as

giving rise to a substantive right capable of being claimed or enforced against the

defendant.124

Hitherto, the courts in Nigeria have held, following the common law principle that,

collective agreements are binding in honour only, and can only be binding and

enforceable when incorporated or embodied into the terms or conditions of

service.125They are not meant to give any individual employee any right to litigate over

an alleged breach of their terms as it does not give rise to any privities of contract,

between the individual employee and his employer.126

The question now is, can this common law principle be sustained or sustainable in view

of, the combined effects of the provisions of Sections 7(1)(c)(i), 13, 15 and 54(1) of the

NIC Act 2006, and S254 (C), of the 1999 Constitution as amended.

123 Ugwu v Ararume [2007] 12 NWLR (Pt. 1048) 367 124 Chevron (Nig.) Ltd. v LD (Nig.) [2007] 16 NWLR (Pt. 1059) 168 125 In UBA v Edet (1993)4NWLR(PT.287)288.The Court of Appeal held that : collective labour agreement is not justiciable. That it is a collective agreement between employers and employees in their capacities as certain bodies of certain institutions...That no individual employee can claim to be a party to that agreement. In other words, no privity of contract arises between an individual employee and his employer by virtue of that agreement...That it is not for any individual employee to found a cause of action on the agreement to which he is not a party. Its enforcement lies in negotiation between the union and the employer ,and ultimately in strike action should the need arise and it be appropriate 126 Makwe v Nwukor (2001) 14 NWLR (PT.733)356. 94

Furthermore, the aforesaid Section 54(1), included any dispute between employers and

employees, including disputes between their respective organizations and federations,

which is connected with the conclusion or variation of a collective agreement as a trade

dispute.

Section 13, empowers the NIC to administer law and equity concurrently, while under

section 15, if there is any conflict between the principles of law and equity in

application, the principles of Equity, shall prevail as is obtainable in the High Courts.

Furthermore, section 254(C)(1)(j) of the Constitution as amended clearly gave, the NIC

the jurisdiction to entertain matters relating to the interpretation and application of any

collective agreement.

The question to be asked is, why the law would go to this length, if the desire is not that

collective agreements should be binding and enforceable. In answering this question,

learned jurist had this to say:127

Of what use is the power of the court to interpret or apply (or enquire into

matters relating to the conclusion and variation of ) collective agreements if the

desire is not that they should thereby be binding? The reforms proposed under

the DECLARATION PROJECT – NIGERIA contain specific provisions to the

effect that collective agreements shall be binding and enforceable as normal

contracts are. But even aside from this, given that the courts are merely giving

effect to the common law when they hold that collective agreements are binding

127Kanyip B.B.; Labour Rights, the Democratic Process and the Nigerian Emerging Market; being a paper presented at the 52nd Nigerian Bar Association (NBA) Conference which was held in Abuja from August 26-31 2012 95

in honour only. Can this common law principle actually withstand sections 7(1)

(c)(1), 13, 15 and 54(1) of the NIC Act and 254C of the 1999 Constitution as

highlighted so far? The world of industrial relations relies heavily on the

collective bargaining process through which collective agreements are

negotiated and agreed upon. It is often a process that entails financial costs, not

to talk of the time expended on it. To throw all of this overboard on the simple

common law expedient that the outcome (collective agreement is binding in

honour only, or only when specifically incorporated into the employment

contract, portends great danger to industrial peace and harmony at the

workplace, not with the growing awareness and restiveness that permeates our

world of work.

It has been argued that:

the common law is judge-made law based on contemporary common

sense. If common sense means good sense and sound judgment in

practical matters, the implication is that it does change from time to time

to keep abreast with current realities that tend to influence it. A further

implication is that common sense may differ from jurisdiction to

jurisdiction in acknowledgment of existing circumstances.128

128 Amadi G.O.S; Political Jaywalking and Legal Jiggery-Pokery in the Governance of Nigeria: Wherein Lies the Rule of Law? op.cit pg.119. 96

Apart from the above, in the Indian case of NTF MILLS v The 2nd Punjab Tribunal129 the court said:

that the Industrial Courts are to adjudicate on the disputes between employers

and their workmen, etc. and in the course of such adjudication they must

determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are

undoubtedly free to apply the principles of justice, equity and good conscience,

keeping in view the further principle that their jurisdiction is invoked not for the

enforcement of mere contractual rights but for preventing labour practices

regarded as unfair and for restoring industrial peace on the basis of collective

bargaining. The process does not cease to be judicial by reason of that elasticity

or by reason of the application of the principles of justice, equity and good

conscience."130

From the foregoing, therefore, it is very safe to submit that, collective agreements are now justiciable and enforceable by the NIC.131

4.4.3. INTERPRETATION OF THE IAP AWARDS AND THE JUDGMENTS OF THE

NATIONAL INDUSTRIAL COURT

Section 15 of the TDA provides as follows: Interpretation of Award of arbitration tribunal or

National Industrial Court:

(1) If after an award of

(a) an arbitration tribunal appointed under section 9 of this Act; or

129 AIR 1957 SC 329. 130 See generally Kanyip B.B.; Labour Rights, the Democratic Process and the Nigerian Emerging Market,ibid 131See also National Union of Civil Engineering Construction, Furniture and Wood Workers v Beten Bau Nigeria Ltd and Anor,(2008) 11 NLLR 1 at 18-19. 97

(b) the National Industrial court,

Has become binding on the employers and workers to whom it relates, any

question arises as to the interpretation of the award, the minister or any party to

the matter may make an application to the National Industrial Court for a

decision on that question.

on an application under this section, the National Industrial Court shall decide

the matter after hearing the parties to the award or, with the prior consent of the

parties, without hearing them; and decision of the court, which, subject to

subsection (3) of section 21, shall be final and shall be deemed to form part of

the original award and shall have effect accordingly.

It is important to note that, under this section 15, both the awards of the IAP and the judgments of the NIC itself can be subjects of interpretation by the NIC. Since interpretation disputes are usually treated as fresh disputes,132 they are therefore, not required to go through the dispute resolution processes of Part I of the TDA, because they are statutorily caught under the original jurisdiction of the court.133

The case of Comrade Olu Solademi & ors v Comrade E. C. Edeji & ors134 should be noted. In that case, the NIC held as follows:

...Although interpretation disputes are usually treated as fresh disputes. (see

section 17(3) of the TDA 1990 and the case of Amalgamated Union of Public

Corporations, Civil Service Technical and Recreational Services Employees v.

132 Section 18(3) of the TDA 133 Section of 15 of the TDA 134 Unreported Suit No. NIC/12M/2003 the ruling of which was delivered on July 6, 2009. 98

Agricultural and Allied Workers Union of Nigeria unreported Suit No.

NIC/17M/1995 the ruling of which was delivered on April 8, 2009), they are not

required to go through the dispute resolution processes of Part I of the TDA as

argued by the respondents. This is because they are statutorily caught up under

the original jurisdiction of this court as can be seen under sections 15.

4.4.4. INTERPRETATION OF TRADE UNION CONSTITUTION.

A trade union's rules and procedure are usually contained in its constitution, also known as the rule book, subject to the provisions of the Trade Unions Act, it contains as many issues as its members deem fit. It is a contract between members and members and the union135

Before the enactment of the NIC Act 2006, trade union constitution was not one of the documents the NIC could interpret in its original jurisdiction. But with the express provision under section 7 (1)(c)(iv) of NIC Act 2006, the NIC is now granted the jurisdiction to interpret such constitutions. In Nnorom v NLC and Ors,136the issue was the interpretation of the constitution of the Nigeria Union of Pensioners (NUP) and the Nigeria Labour Congress

(NLC) in terms of the nature of the electoral rights of the applicant regarding the elective office of the president of the NLC and the court entertained the matter and gave her decision.

It is important to note that the interpretative jurisdiction of the NIC is exclusive to the court and cannot be used to adjudicate substantive trial issues as was held in National Union of Hotels

135 Amadi G.O.S; A Legal Guide to Nigerian Trade Unions, op.cit p.58. 136 Unreported case No.NIC/2/2007,the decision of which was delivered on February13, 2007. 99

and Personal Services Workers v Hotel Diplomat Ltd and anor.137The interpretation of the NIC in respect of any IAP or NIC award, or to any term or provision of the collective agreement shall be final.138

4.5. APPEALS OVER ARBITRAL BODIES

Apart from the foregoing, Section 7(4) of NIC Act 2006, expressly states that; "An appeal shall lie from the decisions of an arbitral tribunal to the Court as of right in matters of disputes specified in subsection (1) (a) of this section".

The said subsection (1)(a), deals with matters relating to: labour, including trade unions and industrial relation. These are matters that must go through the processes prescribed under Part I of the TDA,139 which obviously places great advantage to the Minister of Labour and

Productivity with great disadvantage to the employee.

The provision of section 7(5) of the NIC Act 2006, requiring that, a party to an arbitral award shall be entitled to obtain a copy of the records of the arbitral proceeding and the award from the arbitral tribunal140 becomes very imperative. In the first place, the award of the IAP is not communicated directly to the parties, but the award is first sent to the Minister of Labour and

Productivity.

137 (2005) 2 NLLR (PT.5)244atp.249, Itodo and ors v Chevron Texaco Nigeria (2005) 2NLLR (PT.5) 200 especially at p.221-223. 138 Section15 and 16 TDA 139 See page 83(footnote 16) above. 140Order 3 (5) of the National Industrial Court Rules 2007, provides that where the claimant complaints against an award or decision by an arbitral tribunal, board of inquiry, decision of the Registrar of Trade Unions or any other authority in respect of matters within the jurisdiction of the court, the complaint shall be accompanied by a Record of Appeal, which shall comprise:(a)Certified true copies of all the processes exchanged by the parties at, or the representations made to the lower tribunal.(b)Certified true copies of the record of proceedings before the lower tribunal (where applicable) (c)Certified true copy of the award or decision of the lower tribunal; and(d)Appellant's Brief of Argument. 100

Secondly, the Minister may then communicate the award to the parties with a directive that, within a period of not more than 7 days either party to the dispute may object to the award and if no such objection within the given period of 7 days is received, the Minister may then confirm the award by publishing in a federal gazette a notice to that effect.

Thirdly, the Minister may not notify the parties of the award, but may refer it back to the IAP for reconsideration if he thinks it is desirable to do so.141 The aforesaid provisions of Sections

7(4) and (5) of the NIC Act 2006 are further fortified by the provisions of Order 3 Rules 5 of the NIC Rules 2007.

The first question to be resolved here, is at what point can a party to an arbitral award approach the NIC on appeal over an award, is it at the point when he became aware of the award, that is to say, at the point when the award is communicated to him with a time limit for objection or shall he object to it and await the final decision of the Minister on his objection. It is obvious that, the end product of an objection to the award to the Minister is a referral of the award to the NIC for review on appeal. It is arguable then that, by the use of the phrase “a party” in

Section 7(5) of the NIC Act 2006 every party to the award is given a right of audience before the NIC, it is therefore submitted that a party to any IAP award has the right of approaching the court directly on appeal instead of waiting on the Minister to do so on the strength of his objection before the Minister.

141 Section 13(3) of the TDA 101

The second question is, whether it could still be said to be valid and tolerable for the Minister to continue to sit on an award, refuse to disclose its content and instead refer it back to the IAP for reconsideration? The answer is that S7 (5) NIC Act 2006, has clearly watered down or reduced the effect of the provisions of sections 13(1)(b) and S13(3) of the TDA.142

Not only that, where the Minister refuses to act or sits on the award, an order of mandamus can now be issued against him by the NIC under the provisions of sections16-19 of the NIC Act

2006. Because under section 53 of the NIC Act, the provisions of the TDA are now subject to the provisions of the NIC Act. It has been submitted that what all this means is that, litigants can as of right now demand the record of proceedings and other necessary arbitration processes from the IAP in order to prosecute appeals against an IAP award at the NIC. In other words, the prerogative writs of judicial review compelling the observances of section 7(5) of the NIC

Act can now issue against the Minister.143

4.6. SPECIAL POWERS OF THE NATIONAL INDUSTRIA COURT

Outside the general powers of the court, under Sections1(3), 13 and 15 of the NIC Act 2006, the NIC enjoys further special powers under Sections 10, 14, 16, 17, 18 and 19 of the Act, and these special powers are as follows:

142 In view of the provisions of sections 53 and 54 of the NIC Act 2006. 143 Kanyip B.B Labour Rights, the Democratic Process and the Nigerian Emerging Market, op.cit p.15 102

4.6.1 ENFORCEMENT PROVISIONS

Section10 of the NIC Act 2006, is the enforcement provision of the Act. It provides that:

The Court shall have the power to enforce its judgment and accordingly, may

commit for contempt any person or a representative of a trade union or

employers’ organization who commits any act or an omission, which in the

opinion of the Court constitutes contempt of the Court.

In Nigeria Merchant Navy Officers and water Transport Senior Staff Association v Ocean

Fisheries (Nig) Ltd and Anor.,144 in an application for the NIC to order the 1st Respondent to implement the judgment of the NIC made on the 9/6/1994 in suit No NIC/8/93 the court acceded and made the order. Also in the case of ASCON v Government of Rivers State and ors.,145the Applicant filed an application against the 1st to 4th Respondents to enforce the judgment of the NIC in suit No.NIC/5/93 delivered on the 27th day of June,2005 in favour of the Applicant. The court held that:

The former applicable law was the Trade Disputes Act (TDA) Cap 432 LFN

1990, which in section 22 grants power to the National Industrial Court to

enforce its judgment. Even now that section 22 of the TDA has been repealed,

section10 of the NIC Act 2006 grants the same power. It is therefore, not in

doubt that this court (NIC) has the power to enforce its judgment.

It is important to note that, ordinarily judgments of courts are binding only to the parties in dispute, but in labour/ industrial relation matters, it is not always the same. The point relates to

144 (2005) 2NLLR(PT.6)490. 145 [2009]14NLLR(Pt.38) Pg.259. 103

the issue of the parties against whom an enforcement order can be made. In ASCSN v INEC and 2 ors146, the NIC had the opportunity to state the position of the law, as it applies in labour/industrial relations matters, which is that, in questions of jurisdictional scope between unions and recognition disputes, an employer is often a passive party and so may not necessarily be a party to the suit; yet the outcome of the suit may be enforceable against the employer. The court said thus:

The question, however, remains whether an employer who was not a party to a

suit between two unions can have the judgment in that suit enforced against

him. The answer to this question would depend on the subject matter of the suit

in dispute. The general law as depicted by the respondents is that the judgment

in a suit is only enforceable against the parties in this suit. We agree with this

proposition. The only caveat is that in trade dispute matters, the effect of a

judgment is often on an employer who may not be a party to the suit. In

questions of jurisdictional scope between unions and recognition disputes, an

employer is often a passive party. His presence in the suit is often immaterial

given that his right(s), one way or the other, is not an issue in dispute. When the

court rules that one union over another has the jurisdictional scope to unionize

certain members, or that some employees should be given recognition by an

employer, the determination of any of these issues often does not involve

questions of rights of the employer as to warrant giving the employer audience

or right to be heard. Whatever is the decision of the court, the employer is

expected to abide by the decision given that statutorily recognition and

146 [2006] 5 NLLR (Pt. 11) 75 at p. 89. 104

deduction of check-off dues are automatic and obligatory (hence compulsory),

and jurisdictional scope compartmentalized and well defined…The argument of

the respondents that they were not parties to Suit No. NIC/5/93 and so cannot

have the judgment in that suit enforced against them is, therefore, erroneous.

This decision was appealed against and the Court of Appeal on 19th November 2007 affirmed it describing it as impeccable with nothing upon which the Court of Appeal can pick a quarrel against it147. The ratio in ASCSN v INEC and 2 ors (supra) was subsequently applied by the

NIC in ACSN v National Orientation Agency and ors148.

It has been argued149 that, one noticeable complication regarding the enforcement provision here is that, because of section 10 of the NIC Act, section 22 of the TDA was repealed. The problem is that, section 22 of the TDA provided the authority for both the NIC and the

Industrial Arbitration Panel (IAP) to enforce their respective awards. With the repeal of section 22 of the TDA, thereof, the question arises whether the IAP can now enforce its award since there is no mandating provision to that effect. If it cannot, can the NIC enforce the IAP award? The answer seems to be in the negative because nowhere in the NIC Act 2006 is the

NIC directly empowered to enforce IAP awards. The nearest provision is section 8 of the NIC

Act 2006. But this provision deals with appeals from the IAP and other relevant bodies to the

NIC, with the NIC empowered to hear the appeal. For purposes of the appeal, the NIC, has the power to confirm, vary or set aside the IAP award, or order a rehearing of the matter, or order

147 Independent National Electoral Commission (INEC) v Association of Senior Civil Servants of Nigeria and anor unreported Suit No. CA/A/154/05 delivered on November 19, 2007. 148 Unreported Suit No. NIC/9M/2003 delivered on September 27, 2007.See further Kanyipp B.B .op. cit 28. 149 kanyib B.B., Current Status of the National Industrial Court Rules. A paper presented at the Session on Current Issues at the National Industrial Court: Effect on Law Practice, the Annual Conference of the SPA-NBA, which was held from the18th-20th November 2013 in Markudi, Benue State,p.12. 105

judgment to be entered for any party, or make a final order as it thinks fit. The legal problem here is that, this provision deals with an appeal from the IAP, meaning that circumstance where one of the disputants objects to an IAP awards. It does not seem to cater for that, scenario where both disputants do not object to the IAP award (i. e. They accept the award as binding) and the Minister of Labour has confirmed the said award under section 13(4) of the TDA, and yet one of the parties to the award refuses to keep to the terms of the award. It does not appear that, since the IAP cannot now enforce this confirmed award, the aggrieved party can ask the

NIC for an order of enforcement given that the aggrieved party is actually not appealing against the award in order to activate the powers of the NIC under section 8 of the NIC Act.

This legal problem may, however, be cured in any of two ways. The first is the threat of criminal sanction under section 14(4) of the TDA, a provision that is subsisting. Section 14(4) provides that any person who fails to comply with a confirmed award shall be guilty of an offence and shall be liable on conviction to a fine or imprisonment. Failure still to comply with the award after conviction is a further criminal offence punishable with a fine for each day on which the offence continues. The second expedient is to activate the interpretation jurisdiction of the NIC under sections 15 of the TDA and 7 of the NIC Act and in the process ask for the enforcement of the award in issue. The snag with both expedients is the circuitry involved in both of them just to get a party to enforce an award he did not object to150.

Apart from that, the section, also empowered the court to commit for contempt any person or a representative of a trade union or employers’ organisation who commits any act or an omission which in the opinion of the court constitutes a contempt in exercise of the powers hereinabove

150 Kanyib B.B. ibid 106

conferred. The importance of this section is better appreciated, in view of the status of the court now as a superior court of record.

4.6.2. INJUNCTIVE REMEDIES/JUDICIAL REVIEW

The combined effect of Sections 16, 17, 18 and 19 (a) (b) (d) is that, the court can grant injunction [in all cases in which it appears just or convenient to so grant] make an order of mandamus requiring any act to be done or an order of prohibition, prohibiting any proceedings, cause or matter or an order of certiorari removing any proceedings, cause or matter into the NIC, including granting an injunction in lieu of quo warranto by restraining a person, who acts in an office in which, he is not entitled to act from so acting all those orders may be granted in all cases in which, it appears just and convenient to so grant.

4.7 INJUNCTIONS

An injunction is an official court order that forbids something or commands that something should be done.151 Section 16 of the NIC Act 2006 provides that:

(1) The Court may grant an injunction in all cases in which it appears to the

Court to be just or convenient so to do.

(2) Any such order may be made either unconditionally or on such terms

and conditions as the Court thinks just.

There are different kinds of injunctions. They are ex parte interim injunction, interlocutory injunction, perpetual injunction, mareva injunction and Anton Pillar injunction. Apart from

151 Chambers 21st Century Dictionary Allied Publishers Private Limited, Mumbia India 2008 Pg.669. 107

interlocutory injunction, the rest have limited applications, and are conceived of being of extremely short duration.152

Ex parte, injunctions are granted by hearing the applicant only without reference or hearing the other party. It is granted in cases of extreme urgency, where there has been a true impossibility of giving notice of motion, and such an injunction will be refused, unless the applicant (i.e. the plaintiff) has an overwhelming case on the merits warranting such order.153

Interim injunction is a temporary order which a court may make in the most exceptional circumstances such as a moment of extreme urgency. It is aimed at the preservation of the res or the maintenance of the status quo ante pending the hearing of the application for the hearing of the motion on notice for interlocutory injunction.154

4.8 INTERLOCUTORY INJUNCTIONS

Interlocutory injunctions are generally issued during the pendency of litigation for the short term purpose of preventing injury to the applicant prior to the time that, the Court will be in a position to either grant or deny permanent relief on the merit, which is why an injunctive order cannot be a remedy for an act that, had already been completed or carried out.155

4.9 MANDATORY INJUNCTIONS

Courts show real reluctance in granting order for mandatory injunctions, as it is only granted under exceptional circumstances and upon clearest of evidence based upon a very high

152G.M.C(UK)Ltd v Medicair WA Ltd.(1998)2NWLR(Pt.536) 153Okechukwu v Okechukwu (1989) 3NWLR (Pt.108) pg.234 at 254 154 Okechukwu v Okechukwu (1989) 3NWLR (Pt.108)234. 155 Adisa & Ors v The Military Administrator of Oyo State & Ors (2008) LPELR 3562. 108

standard of proof. The courts have however, not buckled at the knees when the occasion so warrants to grant mandatory injunctions .156

4.10 JUDICIAL REVIEW

Is the supervisory jurisdiction of the High Court exercised in the review of the proceedings, decisions and acts of inferior courts and tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari, prohibition and also the writ of

Habeas corpus. In judicial review, the court is usually concerned with the legality, and not with the merit of the proceedings, decisions or acts of the affected inferior court, tribunal or governmental body.157 A special procedure through which, public bodies or tribunals exercising quasi-judicial or judicial functions are subject to the supervisory jurisdiction of superior courts. Any interference with their statutory or constitutional role demands that, they be informed as it is basic that rules of natural justice must be complied with in the process.158

In determining an application for judicial review, the court is guided by the following considerations:

a. Whether or not the order will issue does not depend on whether the errors

complained of are errors of law, or fact only. The error must disclose excess of

jurisdiction which, should be disclosed on the face of the record.

b. A person applying for an order of certiorari must show that, the body

concerned has in one way or the other failed to act judiciously where it should.

156 Ekanem v Umanah (2007) ALL FWLR (Pt. 367) 928 at 941 - 942; Modile v Governor, Lagos State (2004) 12 NWLR (Pt. 887) 354, Ojukwu v Governor, Lagos State (1986) 1 NWLR (Pt. 18) 621 157 A C B PLC. v Nwaigwe (2011) 7 NWLR 380 158 Per Adekeye (JCA) in Nwaogwugwu v President F.R.N (2007) ALL FWLR (Pt.389) 1327 at 1355 para. H. 109

c. That it is not all errors of jurisdiction that, will justify the making of an order of

certiorari; while all errors going to jurisdiction can provoke an order of

certiorari, all errors within jurisdiction are only caught if they are errors on the

face of the record.

In the Governor of Oyo State and ors v Folayan159 the court said:

As stated earlier in this judgment, the plaintiff's case is for a judicial review of

the Aboderin Commission, in relation to matters within a public body's field of

judgment the court conducts its review from the body's stand point and must not

intervene solely on the basis that it would itself have acted differently. The

following principles are to be borne in mind by a reviewing court:

(a) judicial review is not an appeal;

(b) the court must not substitute its judgment for that of the public body

whose decision is being reviewed;

was reached;

(d) what matters is legality and not correctness of the decision and

(e) the reviewing court is not concerned with the merits of a target

activity.

159(1995) 8NWLR(Pt.413)292,322-323. 110

4.11. MANDAMUS AND CERTIORARI

Section 17 of the NIC Act 2006 provides that:

(1) The Court shall have the power to make an order of mandamus requiring

any act to be done or an order of prohibition prohibiting any

proceedings, cause or matter, or an order of certiorari removing any

proceedings, cause or matter into the Court for any purpose.

(2) The power conferred on the Court by this section to make an order of

mandamus, prohibition or certiorari may be exercised notwithstanding

that the order is made against an officer or authority of the Federal, State

or Local government as such.

Following from the above provisions, in the case of Amalgamated Union of Public

Corporations, Civil Service Technical and Recreational Employees v The Minister of The

Federal Ministry of Employment, Labour and Productivity160 the order of mandamus was granted against the Minister of Labour to compel him to refer a matter to the IAP as enjoined by Section 8 of the TDA. However, in Nnorom v NLC and ors,161 the NIC refused an application seeking for an order of mandamus against the Nigeria Labour Congress on the ground that the NLC is not a public authority for the purposes of issuing the order of mandamus.

160 Unreported suit No.NIC/2M/2006 delivered on the 26/2/2007. 161 Unreported Suit No.NIC/2/2007 delivered on the 13/2/2007. 111

In Judicial Service Commission of Cross River State & anor v Dr. (Mrs.) Asari Young,162 on the meaning of certiorari and purpose for which it will be issued the court held that;

Certiorari is one of the prerogative writs, the other mandamus, used by the court

to restrain the abuse or misuse of power, or to correct errors of law, wrong

exercise of discretion by tribunals, public authorities and governments’ officials.

Once a public authority acts judicially or administratively, its conduct is subject

to control by the courts by means of certiorari or mandamus.

Also that:

certiorari is one of the prerogative writs whose main function is to ensure that

inferior courts or anybody entrusted with performance of judicial or quasi-

judicial functions keep within the limits of the jurisdiction conferred upon them

by statute which create them. Therefore, an order of certiorari will lie to

remove into the High Court for purpose of being quashed, any judgment, order,

conviction or other proceedings of such inferior courts or other body, civil or

criminal, made without or in excess of jurisdiction."

From the foregoing, a writ of certiorari is a writ of common law origin. It is one of the prerogative writs, whose function is to ensure that inferior courts or anybody entrusted with the performance of judicial or quasi-judicial functions keep within the limits of the jurisdiction conferred upon them by the statutes which create them. An order of certiorari will therefore lie to remove into the High Court for the purpose of being quashed, any judgment, order,

162 (2013)11 NWLR (Pt.1364) 1 at 85. 112

conviction or other proceedings of such inferior courts or other body, civil or criminal made without or in excess of jurisdiction.163

In Ojiako v A.-G. Anambra State164 the Supreme Court held that an application for the judicial review of certiorari is effected by two distinct steps. In the first, an application of leave to apply for the order of certiorari is made. The second step depends on an applicant's success at the first stage. This time around the application is on notice.

Also, in the case of Nwaoboshi v MILAD, Delta State,165 the writ of certiorari as an executive writ, just like its sister, prohibition, is a tool to curb excessive use by an inferior judicial body of its jurisdiction. Certiorari is to control inferior tribunals from exercising their mandate or jurisdiction wrongly, and no more. The body to be curbed by certiorari must be one by its instrument empowered to act judicially. Therefore, it is a fatal misconception to apply via certiorari to crush an entirely administrative or executive exercise of power.166

Undoubtedly, the proposition, that certiorari lies only to quash judicial or quasi-judicial acts, remains true till date. Indeed, its scope extends to all authorities or bodies exercising judicial or quasi-judicial powers.167 All these injunctive powers of the court are now grantable following the Constitution Third Alteration Act 2010. Before then, it was very doubtful, in Western Steel

Works Ltd v Iron & Steel Workers Union168 the Supreme Court held that, Section 15 of the

Trade Disputes Decree 1976, conferring jurisdiction on the NIC did not include jurisdiction to

163 Lagos State J.S.C v Kaffo (2008) ALL FWLR (Pt.418) 327at 329 see also R v Electricity Commissioner 1KB 171. 164 (2000) 1 NWLR (Pt.641) 375. 165 [2003] 11 NWLR (Pt.831)305 166Nebedum v Labisi (2001) 1 NWLR (pt. 693) pg. 94, para. F 167 See Head of The Federal Military Government and C-In-C v The Military Gov. Mid-Western State of Nig. & Anor. Ex-parte Ambrose I. Obiyan (1973) 12 S.C. 23 and Ali v Jayaratne (1951) A.C. 66. 168 (1987)1NWLR Part 49,page 284 113

make “declaration and to order injunction”.169 The Court of Appeal also in Kalango & Others v Dokubo & Others(supra) held that:

considering the nature and scope of the jurisdiction and powers of the National

Industrial Court as clearly spelt out in the Act, the court lack competence to

make declarations and orders of injunction of the type sought by the

Plaintiffs/Respondents in the instant case.170

169 (2003)Vol.16 WRN 32at 49 170See also the recent case of Dr. Taiwo Oloruntoba-Oju & 4 others v Prof. Abdul-Raheem & 3 others (2009)39 NSCQR 105,at114-115 114

CHAPTER FIVE THE EXPANDED JURISDICTION OF THE NATIONAL INDUSTRIAL COURT

The Constitution Third Alteration Act 2010, enlarged and expanded the jurisdiction of the NIC.

This chapter shall examine those issues upon which jurisdiction has been granted the NIC in addition, to the jurisdiction as bestowed by section 7 of the NIC Act 2006, under the following sub heads: jurisdiction over International treaties, Child abuse, human trafficking, National minimum wage, Discrimination at work place, Sexual harassment, International best practices,

Unfair labour practices and Free trade zone.

5.1. JURISDICTION OVER INTERNATIONAL TREATIES

Section 254C (2) of the Constitution of Nigeria as amended by the Constitution Third Alteration

Act 2010, provides that:

Notwithstanding anything to the contrary in this constitution, the National

Industrial Court shall have the 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 or matters connected

therewith.

The Vienna Convention on the law of treaties1 defined a treaty as “international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.

1 1969, Article 2 115

From this definition, a treaty could be in Conventions, International Agreements, Pacts,

Standards, Charters and Declarations. In other words, they are express agreements in form of substitute legislations undertaken by states.2

The question has always been the applicability of these international treaties in domestic jurisdictions. Two theories or methods are used, depending on countries involved. The first is, the method obtained in monolist countries in which, case those treaties once ratified automatically become part of the municipal law of the country, a very good example of such jurisdiction is

Kenya which, in its constitution provides thus:

“The general rules of international law shall form part of the law of Kenya." and that

“Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this

Constitution."3

Another method, is the dualist approach in which case no treaty is enforceable unless ratified and then domesticated through, a direct legislative provision. Nigeria belongs to this dualist category.

The constitution of Nigeria4 provides thus:

“No treaty between the Federation and any other country shall have the force of law

except to the extent to which any such treaty has been enacted into law by the National

Assembly".

Following the foregoing constitutional provision, the Supreme Court of Nigeria in Abacha v

Fawehinmi5 held that, an international treaty entered into by the Government of Nigeria does not become binding until, it has been enacted into law by the National Assembly.

2 Makon Shaw, International Law 4th Ed. Cambridge University Press page 74. 3 Articles 2(5) and (2)6 of the Kenya Constitution 2010. 4 section 12(1) 116

Also in M.H.W.U.N v Minister of Health and Productivity & Others6, the Court of Appeal held that the provisions of any International Labour Convention cannot be invoked and applied by a

Nigerian Court until same has been re-enacted by an Act of the National Assembly. His lordship,

Muntaka-Coomassie JCA had this to say on domestic application of International Labour

Conventions in Nigeria:

...There is no evidence before the court that the ILO Convention, even though

signed by the Nigerian Government, has been enacted into law by the National

Assembly.... In so far as the ILO convention has not been enacted into law by the

National Assembly, it has no force of law in Nigeria and it cannot possibly

apply.... where, however, the treaty is enacted into law by the National Assembly

as was the case with the African Charter which is incorporated into our municipal

(i.e. domestic) law by the African Charter on Human and People’s Rights

(Ratification and Enforcement Act, Cap 10, Laws of the Federation of Nigeria,

1990...... It becomes binding and our courts must give effect to it like all other

laws falling within the judicial powers of the Courts.

The foregoing can no longer be said to be the general law as regards the applicability of ratified

International Treaties and Conventions in Nigeria.7

5 (2006) supra 6 (2005) 17NWLR (Pt.953) 120. 7 Oturu Gogo G; The Legal Status of ILO Conventions in Nigeria: A Note on MHWUN v Minister of Labour & Ors. NJILR Vol.2 No.3 (2008),pg 20.See also Onyenweife Paul Henry; The Jurisdiction of the National Industrial Court of Nigeria over Undomesticated Treaties Ratified by Nigeria: Another Look, NJLIR Vol.6 No.3 (2012) P.38.Atilola Bimbo and Morocco-Clarke Ayodele; National Industrial Court and Jurisdiction over International Labour Treaties under the Third Alteration Act, NJLIR Vol.5 No.4. (2011) P.1 117

The implication of the foregoing is that, the National Industrial Court can now, based on the foregoing, apply any ILO Conventions, or Treaties which have been ratified by Nigeria even without domestication.

The court has the jurisdiction also, to use International Law to strengthen a decision based on domestic law.

There is also, the case of Mrs Folarin Oreka Maiya v The Incorporated Trustees of Clinton

Health Access Initiative Nigeria &Ors.,8 where the Court held that, an employee was wrongfully dismissed on grounds of discrimination contrary, to enshrined fundamental right not to be discriminated against as guaranteed by the 1999 Constitution, and the African Peoples and

Human Rights Charter. The court held that:

The duty of the Court to prevent a breach of the provisions of the fundamental

rights sections of the 1999 Constitution is heightened by the Nigerian obligations

to the comity of nations which also forbids such practices – see the African Charter

supra and the ILO’s Convention No. 111 of 1958 on Discrimination. This

obligation is reflected in section 254C – (1) (f) - (h) of the 1999 Constitution as

altered.

From the foregoing, it is safe to conclude that, now the NIC today applies ILO Conventions which have been ratified but undomesticated.

8 (Unreported) Suit No. NICN/LA/359/2012 Judgment delivered on June 19th, 2013. 118

5.2. JURISDICTION TO ENTERTAIN ISSUES BORDERING ON SEXUAL HARASSMENT AND DISCRIMINATION AT WORKPLACE.

The issue of sexual harassment at workplace has been given attention by providing a possibly effective means of checkmating it.9 Sexual harassment in this context, it would seem, is not only applicable to the female sex as males could also be sexually harassed by superior female bosses. It may be, in the form of violence to force a worker to have sex with the employer, or a family member or associates. Also taken care of, is the issue of discrimination in the workplace, presumably either on account of sex or otherwise.10 Discrimination is defined under the ILO

Convention No.111 as;

"any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin (among other characteristics),which has the effect of impairing equality of opportunity and treatment in employment or occupation."11

It has been argued that, this jurisdiction is both complimentary to the provisions of section 42 of the Constitution and equally goes beyond its purview, in so far as the issue involved has to do with discrimination at workplace.12 Section 254C- (1) (g) gives the NIC the jurisdiction to entertain any question that pertains to discrimination at the workplace. By inference, it means any type of discrimination at workplace, against any person is now cognizable at the NIC. Thus, the inhibitions or limitations contained in section 42 (1) – (2) of the 1999 Constitution as regards what would amount to discrimination, would seem not to be applicable when it comes to

9 See secton. 254C (1) (g) of the 1999 Constitution as altered. 10 Ibid. 11 See Dauda Benedicta; Gender Discrimination in Employment: an Appraisal, NJLIR Vol.1 No.2 (2007) p.43.,Oyesola Animashaun; Racial and Sexual Discrimination in Employment: Nigeria and E.U. Perspective, NJLIR Vol.3 No.1 (2009) p.1 12 Adejumo B. A., The National Industrial Court of Nigeria and its Relevance to sustainable Economic Growth and Development of Nigeria. Being the text of a Lecture Delivered in Honour of HRH Eze (Barr.) B. S. C. Nzenwa at a Forum organised by the NBA, Mbaise branch at HRH Eze (Barr.) B. S. C .Nzenwa Bar Centre on Friday 4th April 2014. 119

application of section 254C-(1)(g) of the Constitution on issues dealing with discrimination at workplace, in view of section 254C – [1] of the 1999 Constitution [as altered] ,which grants the

NIC exclusive civil jurisdiction in its areas of competence notwithstanding, anything contained to the contrary in the Constitution.13However there are no supporting and comprehensive legislation on any of the various aspects of discrimination, sexual harassment and victimization in employment and our laws here are regrettably stunted, therefore, a special legislation on discrimination and sexual harassment is urgently needed to guide the Court in adjudication in these area.

5.3. JURISDICTION ON CHILD ABUSE AND HUMAN TRAFFICKING

A child generally, is accepted to be a person, who has not attained the majority year of eighteen.14The NIC is now conferred with the exclusive civil jurisdiction, to entertain cases on issues bordering on child labour, child abuse and human trafficking.15These include Prohibition of buying, selling, hiring or otherwise dealing in children for the purpose of hawking or begging for alms or prostitution, and the likes.16 The jurisdiction to entertain suits on child labour and human trafficking had been scattered in series of courts throughout the nation, but now the NIC has been conferred with the exclusive jurisdiction to entertain these issues. The implication being that, the

13 Adejumo B.A. ibid. 14 Article 1 United Nations Convention on the Rights of the Child 1989, Article 2 of the African Charter on the Rights and Welfare of the Child, section 277 of the Child Rights Act 2003, however section 91 of the Labour Act Cap L1 Laws of the Federation of Nigeria 2004 defines a person under the age of 12 as a child while a person under the age of 18 years is a young person. See also, Amachree Gbenizibe; Recent Trends in Child Labour and Child Trafficking in Nigeria, NJLIR Vol.6 No.2(2012) p.26.,Anyaebe Peter N.; Varying the Approach Towards Eradicating Child Labour in Nigeria: An International Solution to a National Problem, NJLIR Vol.1 No.1 (2007) p.145.Ogunsakin Jide; A Legal Prognosis of Child Labour Under The Child Rights Acts, NJLIR Vol.2 No.2 P.110. 15 See s. 354C (1)(i) of the 1999 Constitution as altered. 16 Section 30 of Child's Right Act, Cap C50 Laws of the Federation of Nigeria 2004. 120

sections of the various statutes conferring civil jurisdiction on these issues on other courts are now void.17

5.4. JURISDICTION OVER NATIONAL MINIMUM WAGE

The issue of wage, and matters connected therewith are very crucial to industrial harmony in such a way as to cover the minimum needs of the worker and his/her family, in the light of national economic, and social conditions. Minimum wage may be understood, to mean the minimum sum payable to a worker for work performed or services rendered, within a given period, whether calculated on the basis of time or output, which may not be reduced either by, individual or collective agreement, which is guaranteed by law and which may be fixed in such a way, as to cover the minimum needs of the worker and his/her family, in the light of national economic and social conditions.18 It is also called base wage which is the least amount that could be paid within an economy to job-holders of different cadres. The amount is usually backed by law, and presumed to be capable of sustenance and maintenance of minimum standard of living.19 In fact, majority of industrial relations disputes in Nigeria are closely connected with issues of wages and salaries.20 So much so that, between 1963-2010 Nigeria has had about eleven Civil Service

Reform and Wage Commissions.21 Jurisdiction on the issue, being labour dispute, was formerly

17 Adejumo B.A.ibid. 18 The Committee of Experts 1992 General Survey Reports relating to Convention No.131 on Minimum Wage Fixing. 19 Ilesanmi, Jayeoba Foluso; Wage Trend in Nigeria: Historical Perspectives and Factors, NJLIR Vol.6 No.3 (2012) p.63. 20 Adejumo B. A. ibid, See generally, Chiafor Amaechi B.; National Minimum Wage(Amendment) Act 2011:The Unitarism in Nigerian Federalism, NJLIR Vol.5 No.3 (2011) P.35,Adewusi Promise A.Kanayo; Minimum Wage in Nigeria: Challenges and Human Resources Practitioners Intervention, NJLIR Vol.5 No.3 (2011) P.51. 21 Morgan Commission 1963,Eldwood Commission 1966,Adebo Commission 1970/71,Udoji1972,The Cookey Commission 1981, Dotun Philips Panel 1985, The Fatai Williams Committee 1980, The Ayida Panel Review 1994,The Philip Asiodu Committee 1998/99, Ernest Shonekan Committee 2000 and Justice Alfa Belgore Committee 2009/2010. See generally, Onuegbu Hyginus Chika; The New Minimum Wage: Strategies for Effective Public/Private Sector Management, NJLIR Vol.4 No.3 (2010) pg41-68 121

scattered in several courts. With the grant of jurisdiction to the NIC to adjudicate on these issues throughout the Federation, or any part thereof22, the NIC would be able to adjudicate the disputes that might arise in future in relation to introduction of new national minimum wage. An additional advantage of this jurisdiction is that, the Court’s territorial jurisdiction nation-wide, such that it can make a nation-wide binding pronouncement.

5.5. JURISDICTION OVER CRIMINAL MATTERS

The NIC is now granted jurisdiction, in respect of criminal causes and matters arising from any civil cause or matter of which jurisdiction is conferred on the Court by the Constitution or by any statute23. It is good that, the Legislature considered it fit to grant the Court criminal jurisdiction in respect of causes and matters over which, it possesses civil jurisdiction. This fusion of jurisdictions will ensure that, all matters related to labour and industrial relations can be expeditiously heard in a specialized court with the needed expertise. Similar criminal jurisdiction is conferred on the Federal High Court in respect of causes and matters on which, it exercises civil jurisdiction.24 It does not in any way imply that, the Court has the general criminal jurisdiction to try all manners of matters simply because they arose, from matters over which it possesses civil jurisdiction.

The intendment of the section is to afford the Court jurisdiction to try the offences created in our labour related statutes like the Factories Act, Labour Act, Trade Disputes Act, Trade Unions Act, and etcetera.

22 Section 254C (1)(e) of the 1999 Constitution as amended. 23 See section. 254C (5) of the 1999 Constitution as amended 24 See s. 251-(3) of the 1999 Constitution as altered. 122

Therefore, it might be unnecessary to entertain any fear that, the Court will infringe on the jurisdiction of other courts in criminal matters as has been expressed in certain quarters25. This fear also appears to be misplaced, because a close perusal of the provision in question will reveal that the Court is not granted exclusive jurisdiction on the areas where, it even possesses criminal jurisdiction if the decision of the Court of Appeal in Momodu v The State26 is anything to go by.

While interpreting similar provisions of section 251 (3) of the 1999 Constitution, which conferred criminal jurisdiction on the Federal High Court to try offences arising from the subject matters over which, it has civil jurisdiction, the court of Appeal held that, the Federal High Court did not possess exclusive jurisdiction on those criminal matters over which it has jurisdiction. The wording of this section appears to be impari material with the section granting the NIC criminal jurisdiction. Ejere O.D27 argued that the High Court being a court of general jurisdiction by virtue by virtue of the provisions of section272 of the Constitution, still retains and enjoys equal or concurrent jurisdiction with the NIC in respect of criminal causes and matters contained in section

254 ( c)(1) and (2). That this conclusion is inevitable from proper construction of the combined effect of section 254(c) (1) and (2) on the one hand and section 254(5) on the other hand. That had the draftsmen intended the NIC to have exclusive jurisdiction over such criminal matters, it would have unequivocally stated so clearly and specifically by couching the provisions of section

254(c)(5) in the way and manner it couched section 254(c)(1).From the forging it is safe to conclude that the criminal jurisdiction granted the NIC is shared and or concurrent with the High

Courts.

25 See Hon. Justice Gummi, “National Industrial Court: Powers and Jurisdiction”, being text of a paper delivered at the 2011the Otutu Obaseki Auditorium of the National Judicial Institute, Abuja on the 29th of June, 2011. 26 See (2008) ALL FWLR (Pt. 447) 67 at 103 – 105. 27 Ejere O.D. Legal implications of the Constitution (Third) Alteration) Act 2010 on the Jurisdiction of the National Industrial Court of Nigeria,(2013),NJLIRVol.7No.4 P46 123

5.6. JURISDICTION OVER FREE TRADE ZONE

The Nigeria Export Processing Zones Authority (EPZ) Act No 63 of 1992 is the enabling law that governs the operations within the EPZs in Nigeria. A total of sixteen (16) EPZs have been licensed, nine of them are operational with the federal and various states governments and private individuals involved. The pioneer Free Zone, Calabar Free Zone was completed in 1999, and officially commissioned in 2001.28Before the enactment of the Third Alteration Act, personnel matters in all the Free Trade Zones in the nation were not justiciable. Thus, the operators of the

Zones could not be sued in a court of law for anything done or omitted to be done in relation to personnel matters in the Free Trade Zones. Consequently, the rights and privileges of workers and employees were frequently trampled upon with impunity. With the jurisdiction now granted NIC, on any personnel matter arising from any Free Trade Zone in the Country, the ouster clause in their enabling Act may now be considered void to the extent of its inconsistency with section

254C – (1)(j)(vii) of the 1999 Constitution [as altered].29

5:7 INTERNATIONAL BEST PRACTICE ON LABOUR AND INDUSTRIAL RELATIONS.

The NIC Act 2006, expressly empowered the Court with the power to consider and apply

International best practices in appropriate cases before it. Section 7 (6) of the Act provides that:

The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.

28 Adewumi Funmi; Protecting Workers' Rights in the Export Processing Zones (EPZs): Challenges for the Labour Movement, NJLIR Vol.1 No.3 (2007) P.77. 29 Adejumo B.A. ibid 124

Commenting on that provision, His Lordship, Honourable Justice B. B. Kanyip gave an insight into the reasons behind this provision in the following words:

The chief advantage of Section 7(6) is that it permits the NIC to be part of the global world of industrial relations law and practice where the experience of other jurisdictions can be brought to bear in the adjudication of labour disputes. The ILO and its Member States, including Nigeria have been able to build up a body of labour jurisprudence that Member States are enjoined to apply in their respective domestic settings. Section 7(6) permits the consideration of this labour jurisprudence when the need arises. And because issues of international best practice are questions of fact, they have to be proved on a case by case basis.30

In addition to the NIC Act 2006, the 1999 Constitution as amended has made provision in Section

254C (2) that:

Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the 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 or matters connected therewith.

These treaties, conventions and protocols as they relate to employment and labour are basically as formulated by the International Labour Organization (ILO). The ILO was specifically created to develop International Labour standards. It is a United Nation's specialised agency founded in

1919. It is a unique organization being the only worldwide organization that, is founded on a tripartite structure involving government, employers and workers as active partners with its

30 kanyip.B.B; The National Industrial Court of Nigeria: the Future of Employment/Labour Disputes Resolution, paper presented at Nigerian Institute of Advanced Legal Studies, www.nicn.gov.ng/spdf.id=17, accessed on 17th of November 2013. 125

mandate of promoting social justice, better living and working conditions of the labour force all over the world through the setting, implementation and supervision of International Labour

Standards (ILS). The main objectives, `of the ILO especially with regards to the standard setting mission are to improve the living and working conditions of the labour force and seek an international regulation of labour that, would allow equalizing of conditions for international competition.31

ILS are the legal instruments drawn up by the ILO setting out basic principles and rights at work.

They could be in the form of Conventions which are legally binding International Treaties, when ratified by member states or sources of inspiration for domestic law if not ratified. The term

International Best Practices (IBP) is arguably constituted by act of implementation by the court of the ILS. The term “International Best Practices” (IBPs) in employment relationships has been described32 as those practices which are derived from those internationally laid down standards meant to govern employment, labour and industrial relations. These standards are generally to be found in works of the International Labour Organization (ILO). The ILO has built up a body of numerous standard setting conventions, recommendations, together with the opinions of the

Committee of Experts on Freedom of Association and the Committee of Experts on the

Application of Conventions and Recommendations.33

The subjects covered by International Labour Standards include: Freedom of Association,

Collective Bargaining and Industrial Relations, Forced Labour, Elimination of Child Labour and

31 See ILO: www.itclo.org, accessed on 17th of November 2013.

32 Ibrahim Awaal; The Effect of the Application of International Best Practices on the Common Law Principle of Master and Servant in Employment Relationships. Being a paper presented at the Annual Conference of the NBA Section on Legal Practice held at Makurdi Benue State, November 18th-20th 2013. 33 See Agomo C.K. (2011) Nigerian Employment and Labour Relations Law and Practice, Op.cit. Pg. 331. 126

Protection of Children and young persons, Equality of opportunity and treatment, Occupational

Safety and Health, Social Security and other issues relating to the world of works.

The ILS touching the foregoing topics, are to be found in the some ILO Conventions which are fundamental to the international best practices and they are:

i. Freedom of Association and Protection of the Right to Organise Convention34

ii Right to Organize and Collective Bargaining35, 1949;

iii Abolition of Forced Labour36,

iv Minimum Age (Underground Work)37,

v Equal Remuneration38,

vi Discrimination (Employment and Occupation)39,

vii Workers with Family Responsibilities.40

There is also the Declaration on Fundamental Principles and Rights at Work, which all states of the ILO have an obligation to respect, promote and realize whether they have ratified the fundamental Conventions or not. It has been submitted that the ILO and its standard setting duties and the instruments through which it achieves them are intended to emphasize the fact that, international labour standards, and international best practices in employment matters are derived

34 Convention 87 of 1948 35 Convention 98 of 1949 36 Convention 105 of 1957 37 Convention 123 of 1965 38 Convention 100 of 1951 39 Convention 111 of 1958 40 Convention 156 of 1981, Nigeria has ratified about 39 of the ILO Conventions, many of which have been encapsulated in the Labour Act. 127

through well-established institutions and processes primarily to enhance the quality of life and engender peace and progress in the world of work41.

Apart from the above, international best practices are also derived from international instruments, regional instruments, codes of business practice for multinational companies, national policies and international work rules and collective agreements. They could also just be the practices in other jurisdictions, which are of persuasive authority upon which the court may act to resolve the disputes before it.

The National Industrial Court has applied some of these IBPs. In the case of The Hon. Attorney-

General of Enugu State v National Association of Government General Medical and Dental

Practitioners (NAGGMDP) & Anor42 the Court invoked the provisions of Section 7(6) of the NIC

Act 2006, to consider the international best practice in adjudicating on the issue of ‘essential services’ in relation to the classification of hospital services, as being essential services, the workers of which are prohibited from participating in a strike action. After reviewing the relevant literature of the ILO on the international best practice on the issue, the court held that the ‘…ILO conception of essential services approximates with the notion under Nigerian law in classifying the hospital sector as an essential service’. Upon this finding, the Court proceeded to hold that, the defendants in the suit who were hospital staff were engaged in essential services and were prohibited from taking part in any strikes, or engaging in any conduct in contemplation or furtherance of any strike.

41 Ibrahim Auwal ibid. 42 (Unreported) Suit No. NIC/EN/16/2010 Judgment delivered on June 20, 2011, 128

Also, in the case of Basil Ositadinma Mbanefo & Ors v Judicial Service Commission of Anambra

State43 the NIC relied on the ILO jurisprudence to determine the meaning of ‘projection of management’ in relation to who can or cannot join a trade union under the Trade Unions Act.

Furthermore, it is mostly in the area of termination of employment that, the Court has had the most cases and also perhaps where the most impact has been made by it, in employing the IBPs in determining some cases before it. One recent case in which, the Court relied on the international best practice is the case of Mrs Yetunde Abdulrahaman Mariam v Univeristy of Ilorin Teaching

Hospital Management Board & Anor.44 In this case the claimant’s suspension by the employer was nullified on the ground that the suspension and refusal to promote her amounted to unfair labour practice which the Court had been enjoined to apply by virtue of the provisions of Section

254C(1)(f) and (h) of the 1999 Constitution as amended. The Court held that there was sufficient basis to invoke the international best practice and declare the suspension as being vindictive and unfair labour practice, which made the Court to depart from the policy of judicial non-interference with the employer’s right to suspend and punish the employee. The Court held that:

These Indian authorities suggest that the judicial policy is one of non-interference (also upheld by our Courts in Nigeria)45 ... but it admits of exceptions. For instance, where an employer acts mala fide or there is evidence of victimization, then the Court should not shy away from taking a closer look at the case for not promoting the employee in question. In other words, mala fide or victimization would operate to suspend the policy of judicial non-interference in matters of promotion.

43 (Unreported) Suit No. NIC/EN/07/2009 delivered on June 30, 2011 44(Unreported) Suit No. NICN/LA/359/2012 Judgment delivered on June 19th, 2013. 45 The Shell Petroleum Development & 5 ors v E. N. Nwaka & anor (2003) 6NWLR(Pt.815)184 and Abenga v Benue State Judicial Service Commission (2006)14NWLR (Pt.1000)610); 129

The position enunciated above, shows, how the Court in appropriate and deserving cases and circumstances would not shy away from implementing the international best practices, it has been enjoined to uphold and implement. It must also be pointed out that the concept of unfair labour practice is one that is regulated by statute in many countries such as South Africa and the United

Kingdom. In such countries, specific acts have been clearly and statutorily determined as acts which amount to unfair labour practices. For instance, section 152(1) of the Trade Union and

Labour Relations Consolidation Act 1992 as amended by the Employment Relations Act 2004 of the United Kingdom, outlines the circumstances in which the dismissal of an employee for trade union membership or activities would be unfair.46 In this country however, in the absence of any statutory provisions, and with the conferment on the NIC, the jurisdiction to hear and determine cases concerning unfair labour practice, the direction must be to rely on those international best practices that, would serve to promote fair labour practices by both parties to the employment contract.47 The significant point is that, any practice that a party seeks to rely upon must be pleaded and evidence thereof, placed properly before the Court to enable it make the appropriate finding and decision on such an International best practice. This is because whether, a particular practice amounted to an international best practice that the Court is bound to take into account or not, is a question of fact. This point was clearly made by the NIC in the decision given in the case of Obilor v Briston Helicopters Nig. Ltd,48 where the court held that; “For international best practise to be applicable under section 7(6) of the National Industrial Court Act 2006, it must be first pleaded and then proven since it is a question of fact. In the instant case the Claimant did not plead nor prove the international best practice that he wanted the court to apply."

46 See Robert Upex; The Law of Termination of Employment, Jordans, Bristol, 2006. 7th edition, Pg. 234. 47 Awal Ibrahim ibid. 48 (2011) 25 NLLR Pg.22at 71 130

Also in the case of Oyo State Government v Alhaji Bashir Apapa & Ors49 the Court held that:

We cannot conclude this judgment without a remark or two on the application of section 7(6) of

NIC Act 2006. The Respondents had argued that it is not good international practice to brand all public servants, and teachers specifically, as being on essential services and so cannot embark on strike. Section 7(6) cannot be applied in this general and sweeping form. A litigant that seeks to rely on best international practice must be prepared to establish or prove same as what is best international practice in industrial relations is a question of fact.

The ILS could also be in the form of recommendations, which are not open to ratification, and not legally binding guidelines,50providing general or technical guidelines for national action. They could also be found, in Protocols which are partially revised conventions.

In the case of The Registered Trustees of National Associations of Community Health

Practitioners of Nigeria and ors v Medical and Health Workers Unions of Nigeria51 the court following the judgment in Abacha v Fawehinmi52 held to the effect that such ILO Convention which has not been enacted into law by the National Assembly has no force of law in Nigeria and therefore, in applicable because only domesticated Convention under section 12 of the 1999

Constitution were applicable, is now old law. This is because the said section 7 (6) of the NIC Act

2006, is fortified by the Constitution Third Alteration Act 2010 which amended some provisions of the constitution and expressly gave the NIC jurisdiction:

49 (unreported) Suit No.NIC/36/2007 Judgment delivered on July 15, 2008, 50 See preamble of the Constitution of the ILO. See also The Declaration of Philadelphia and ILO Declaration on Fundamental Principles and Rights at Work and its follow-up adopted at its 86th session, Geneva 18 June 1998 p.1.See also; Olanrewaju John Niyi; An Overview of International Labour Standards and The Decent Work Agenda; Implications for the Nigerian Relations System. Being a paper delivered at the Michael Imodu Nigerian Institute of Labour Studies, Ilorin November 11, 2011. 51 [2008] 2 NWLR (Pt.1072) 572. 52 [2006] 6 NWLR (Pt.660) 288-289. 131

Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;53 relating to, connected with or pertaining to the application or interpretation of international labour standard.54 It also has the powers to draw inference and or apply such Conventions which have not been ratified which never the less have metamorphosed into International Labour Standards.55 Not only that, the court can make references to any unratified Convention which forms part of international best labour practices as is obtainable in other jurisdiction.56

As can be seen above, the Constitution Third Alteration Act 2010 also gave the NIC jurisdiction over unfair labour practices. But there is no definite comprehensive, definite and detailed legislation covering this area of unfair labour practice. It has been submitted that the concept of unfair labour practice is virtually unknown in Nigeria statute laws. Common law principles have continued to rule the waves, leaving a trail of injustice to workers and employees.57 It is therefore recommended that specific legislation be enacted to cover the subject of unfair labour practice.

5:8 JURISDICTION OVER PRIVATE INDIVIDUAL EMPLOYMENT DISPUTES

The wording of Section 7 of the NIC Act 2006, did not expressly mention individual or private employment disputes, rather in granting jurisdiction in the NIC, the NIC Act 2006, specifically mentioned labour disputes, organisational disputes, collective agreement and trade union

53 Section 254C(1)(F) 54Section 254C(1)(h) 55See also Olewale Adebambo; Domesticating International Treaties and review of 1999 Constitution. The Guardian Tuesday, January 14, 2014. Pg.55. 56 See generally, Obi Okonkwo Peter; The Concept and Purpose of International Labour Standards, NJLIR Vol.2 No.3 (2008) p.64.Obi Peter Okonkwo; Implementation of International Labour Standards, NJLIR Vol.3 No. 4 (2009) P.81. 57 Gerald M. Nwagbogu; Repositioning the National Industrial Court for Industrial Relations Facelift NJLIR Vol.7 No. 2 (2013) P.81 132

constitution. Thus, the view was expressed that, it is doubtful whether the NIC could entertain individual employment disputes.58

Under the TDA, the definition of a trade dispute clearly excluded such individual disputes and other private contracts of employments. However, the Constitution (Third Alteration) Act 2010, changed all that, by providing in section 254C (1) as follows:

(1) Notwithstanding the provisions of sections 251, 257, 272 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 matter incidental thereto or

connected therewith;

(b) relating to, connected with or arising from Factories Act, Trade Disputes Act,

Trade Unions Act, Workmen’s Compensation Act or any other Act or Law relating

to labour, employment, industrial relations, workplace or any other enactment

replacing the Acts or Laws;

58 Worugji,I.N.E, The National Industrial Court(NIC) Act 2006 in Bimbo Atilola (ed.) ; Annotated Nigerian Labour Legislations, op.cit p.182 133

The above doubt as expressed was engineered by the fact that, the words 'labour' and

'employment' were not defined by the NIC Act 2006. 'Labour' has been defined, as work of any type, including mental exertion.59On the other hand, 'employment'60 is defined as:

(1) work, especially when it is done to earn money…

(2) the situation in which people have work

(3) the act of employing somebody.

Again, the Black’s Law Dictionary on its part, defines ‘employment’ in these words:

1. The relationship between master and servant.

2. The act of employing.

3. The state of being employed.

4. Work for which one has been hired and is being paid by an employer.61

In addressing the issue of the concept of employment, a learned author, asserted that, in the absence of employment relationship, labour legislation and industrial jurisprudence have no place.62 In other words, the existence of employer-employee relationship is the sole foundation on which the labour law rests. The learned author then went on to state that, at the macro level, employment can be broadly classified into public and private employment, with the latter covering essentially employment in private business, trade and industry. He continued that, the

59 Byran. A. Garner; Blacks Law Dictionary, 8th edition op. cit page 890. 60Hornby A. S., The Oxford Advanced Learner’s Dictionary: International Student’s Edition, 7th Edition,p.479. 61 At the page 604 62 Rao E.M. Industrial Jurisprudence: A Critical Commentary LexisNexis Butterworths; New Delhi, India 2008,p.89 134

concept of employment involves three ingredients: employer (the person who engages the services of others), employee (the person who works for another for hire) and the contract of employment (the contract of service between the employer and employee under which the employee agrees to serve the employer subject to his control and supervision).

It is in this regard that, the Supreme Court in Shena Security Co. Ltd v Afropak (Nig.) Ltd & ors63, for instance, held a contract for the supply of security guards by the appellant to the 1st respondent in consideration of a monthly payment of an agreed amount per security guard to be a contract of service/employment.64

The primary players in any labour relationship are the employees or workers, and their union on the one hand, and the employers and their association on the other hand, and the government which provides the regulatory framework for the maintenance and sustenance of a conductive environment for both the employers and employees.

By the said section 7 of the NIC Act 2006, the NIC is granted exclusive jurisdiction over civil cases and matters listed there under. The meaning of the word exclusive was defined as; excluding all others, shutting out other considerations, not shared or divided, sole single as an exclusive right by the Supreme Court in the case of Oyeniran v. Egbetola.65From the foregoing, it is obvious that, the jurisdiction of the NIC covers disputes arising from private employment contracts.

63 [2008] 4 – 5 SC (Pt. II) 117 64 See generally Kanyipp B.B. in Mrs. Titilayo v Akisanya Coco-Cola Nigeria Ltd. and 2 others (unreported)Suit No. NICN/LA/40/2012 delivered on July 13, 2012 65 (1997)5KLR 937 See also Ugwu Nwabueze Justus: A Dictionary of Nigerian Judicial and Statutory Words and Phrases, Mono Expression Ltd, Jos 2006,P.96. 135

In Mrs. Titilayo v Akisanya Coco-Cola Nigeria Ltd. and 2 others66, Counsel for the claimant stated a case for reference to the Court of Appeal. The principal issue, formulated for the determination of the Court of Appeal on case stated was:

Whether the jurisdiction of the National Industrial Court as contained in section 254C(1) of the

Constitution of the Federal Republic of Nigeria 1999 (Third Alteration) Act No. 3 of 2010 extends to all cases of private individual contractual employment or is limited to industrial relations and only to employment matters arising from or connected with trade disputes, collective agreements, labour and industrial actions.

As a consequence, the motion is also praying for:

1. An order staying the proceedings before this Court in Suit No. NIC/LA/40/2012,

pending the decision of the Court of Appeal on the case stated.

2. Such further or other orders as this Court may deem fit to make in the

circumstances.

The grounds upon which the application is sought are:

1. It has been settled that the historical jurisdiction of the National Industrial Court is

limited to issues of industrial relations, trade disputes, collective agreements and

industrial action and to the conditions of employment of workers as defined in the

Labour Act.

66Supra. 136

2. There are no elements in this suit comprising industrial relations, trade disputes,

collective agreements and industrial action and to the conditions of employment of

workers as defined in the Labour Act.

3. The subject matter of this suit arose from a private individual contract of

professional or managerial employment.

4. That the case stated for the decision of the Court of Appeal arises from the

interpretation and application of section 254C (1) of the Constitution of the Federal

Republic of Nigeria 1999 (Third Alteration) Act No.3 of 2010 in the present suit.

5. That the case stated for the decision of the Court of Appeal to entertain the present

suit and therefore an order staying proceedings pending the decision of the Court

of Appeal in this application is substantial, being on which neither the Court of

Appeal nor the Supreme Court has decided.

6. That the case stated for the opinion of the Court of Appeal is fundamental to the

jurisdiction of the National Industrial Court.

In arguing his application for case stated, learned counsel for the defendants/ applicants contended inter alia that, the mere fact that, employment/labour is used in the 1999 Constitution, as amended, does not necessarily mean that, the NIC would have jurisdiction over all matters relating to all kinds of employment. That the word, “employment” as used in the1999

Constitution, as amended, would have to be interpreted in line with the historical jurisdiction of the NIC, and if this is done, it would be seen clearly that, it was never the intention of the legislators to endow the NIC with exclusive jurisdiction over matters relating to employment

137

contracts between an employee and his employer. Thus, if the word “employment” were interpreted using the ejusdem generis rule, the result would be that, the NIC does not have jurisdiction over matters relating to private contractual employment67

In his considered ruling, the learned trial Judge found the application for case stated to fail, the court held: that in contending that the legislature did not intend by the Third Amendment Act to extend the subject matter jurisdiction of the NIC and that the legislature did not in fact do so, the defendants’ application for case stated assumes that there was an error on the part of the National Assembly in conferring the current jurisdiction. In other words, the term ‘employment’, in section 245C (1) of the 1999 Constitution, as amended, was accidental and without consideration to its true meaning.

The defendants’ application for case stated assumes, therefore, that the legislators at Federal and

State levels who passed the Third Alteration to the 1999 Constitution did not know that the word,

‘employment’, encompasses all forms of employment without distinction. It is based on this distinction that the defendants framed their issue which they labelled substantial and want this

Court to grant the application for case stated. It cannot, however, be a substantial question of law simply because the applicant thinks it to be so. What we have, therefore, as an application for case stated is the applicants generating a controversy themselves; and then branding that controversy a substantial issue with a prayer to this Court to refer the controversy to the Court of Appeal. Now, diverse literatures on labour or employment law have all these years defined employment to encompass both public and private employments. What this portends is that there has been no controversy over the ambit of the term, ‘employment’. So when the defendants presently argue

67 ibid at page 9 of the ruling. 138

that it is not clear if the current jurisdiction of this Court under section 254C(1) of the 1999

Constitution, as amended, raises a substantial question of law regarding the scope of the jurisdiction of this Court it must be because the defendants do not know the scope of labour or employment law itself. Any labour lawyer knows that the term, ‘employment’, refers to public and private employment and that there is no controversy over the term at all. The fact that the defendants do not know this does not in any way make that a substantial question of law. The ignorance of an issue cannot elevate that issue to the position of substantiality.68 And the court held that the NIC had jurisdiction over the case.

Upon appeal to the Court of Appeal, over the decision of trial court herein, in Coco-Cola Nigeria

Limited and 2 others v Mrs Titilayo Akisanya.69 The court upheld the decision of the learned trial court in holding that, the National Industrial Court of Nigeria has jurisdiction to hear and determine disputes arising from private employment matters.70

From the foregoing, it is now a completely settled issue that, the National Industrial Court of

Nigeria has jurisdiction over private/individual employment matters. It is obvious that this controversy on the extend or category of persons upon which the NIC could exercise jurisdiction arose simply because of the lacunas that, exist in the definition section of the NIC Act 2006 in that, the words 'labour' and 'employment' were not defined.

68 ibid at pages 40-41 of the ruling 69 (2013) 1 ACELR 28 , (2013) 36 NLLR (Pt.109) 338. 70 Per Ayobode Olujimi Lokulo-Sodipe JCA at page32 of the judgment. 139

5.9. FUNDAMENTAL HUMAN RIGHTS MATTERS BEFORE THE NATIONAL

INDUSTRIAL COURT

There is no provision in the NIC Act 2006, empowering litigants to litigate issues or file claims under the Fundamental Human Rights (Enforcement Procedure) Rules. However section 9 (2) of the NIC Act, provides thus:

"an appeal from the decision of the NIC shall lie only as of right to the Court of Appeal only on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal

Republic of Nigeria 1999."

From the wordings of this section, it is arguable that, the court has jurisdiction to entertain breaches of the provision of Chapter 4 of the 1999 Constitution, and by necessary implication that, the Fundamental Rights Enforcement Procedure Rules is applicable to the NIC. Because it is after entertaining any such matter that the issue of appeal can arise. But the question is whether the court can entertain all types of breaches of the provision of Chapter iv or breaches of the said chapter, as it relates to labour matters only. The Constitution Third Alteration Act 201071 answered this question by providing that:

An appeal shall lie from the decision of the National Industrial Court 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 National Industrial Court has jurisdiction.

Not only that, the NIC is clothed with jurisdiction to the exclusion of any other court in civil matters:

71 Section 5(b) which is now section 243(2) of the 1999 Constitution as amended. 140

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;72

However, applications for the realization of the provisions of Chapter IV of the Constitution are guided by special rules of procedure,73which never mentioned the NIC as one of the courts wherein the rules is applicable. Again, the provision of section 46 (1) of the Constitution to the effect that: "Any person who alleges that any of the provisions of this chapter is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress," also the constitution did not name the NIC as a court wherein such applications can be brought.

Therefore, the attempts by litigants to litigate matters in the NIC under the Fundamental Rights

(Enforcement Procedure) Rules has always been rebuffed by the Court. The NIC in Comrade

(Evang.) Olowo Preye Grace v PENGASSAN & 3 ors74 had actually held that, section 254C(1)(d) of the 1999 Constitution, as amended, cannot be used as the basis of filing claims under the

Fundamental Rights (Enforcement Procedure) Rules, and that the NIC, is not contemplated under the Fundamental Rights (Enforcement Procedure) Rules. Also in Alhaji Lateef Akinsola v

NURTW & ors75, the NIC held as follows:

72 section 254C(1)(d), See further, Obijiaku I.O.; National Industrial Court and Jurisdiction under the Constitution (Third Alteration) Act,2010, NJLIR Vol.7 N0.1 (2013) P.100. 73 The Fundamental Rights Enforcement Procedure Rules 2009 74 Unreported Suit No. NIC/EN/10/2011 delivered on July 5, 2011. 75 Unreported Suit No. NIC/LA/333/2012 the ruling of which was delivered on March 20, 2013. 141

By analogy to the rule that, while a person unlawfully suspended from work can seek redress in the Court and claim his full salary76 this can be only by writ of summons, not by an application under the Fundamental Rights (Enforcement Procedure) Rules77 I really do not think there is a fundamental right to an office. The rule is stretched further in the recognition of an employer’s right to suspend an employee when necessary, with or without pay or at half pay, which, cannot amount to breach of the employee’s fundamental rights as it has no bearing with issues of fundamental right under the Constitution78.

In any case, it is the considered view of this writer that, in view of the express provision of section

254C (1)(d) aforesaid, and the use of the word 'may' instead of 'shall' in section 46 of the 1999

Constitution as amended, the NIC has the jurisdiction to entertain fundamental human rights applications as they relate to labour and employment matters under chapter 4 of the Constitution.

The above, is further fortified by the provision of section 1(3)(b) of the NIC Act 2006, which granted the NIC with the powers of a high court. It is therefore suggested that, an amendment be effected on section 46 of the Constitution, and on the Fundamental Rights Enforcement Procedure

Rules 2009, to expressly name the NIC as one of the courts for the ventilation of issues in respect of chapter four of the constitution.

76 ACB Ltd v Ufondu [1997] 10 NWLR (Pt. 523) 169, 77 Effiong v Ebong [2006] 18 NWLR (Pt. 1010) 109), 78 by Ayewa v University of Jos [2000] 6 NWLR (Pt. 659) 142, Akinyanju v University of Ilorin [2005] 7 NWLR (Pt. 923) 87 and Longe v FBN Plc [2010] 6 NWLR (Pt. 1189) 1 SC 142

143

CHAPTER SIX PROACTIVE PROVISIONS FOR TRIALS AT THE NATIONAL INDUSTRIAL COURT.

There are provisions in both the NIC Act 2006 and in the Constitution Third Alteration Act

2010, for the purpose of giving effect to the specialised nature of the NIC as a specialised court. In this chapter, these provisions will be examined under the use of assessors, referees and arbitrators. The other methods of mediation/conciliation and negotiation, and the Rules of practice and procedure of the court shall be discussed. Finally, this chapter shall, also examine the provisions relating to appeal, to the Court of Appeal of the decisions of the NIC.

6.1. USE OF ASSESSORS

The NIC is empowered, to call in the use of one or more assessors, in the cause of trial of any civil cause or matter. The NIC Act 2006, in Section 29 provides thus.-

(1) In any civil cause or matter, the Court may, if it thinks it expedient so to do

or in a manner prescribed under any enactment, law, or Rules of Court, call

in the aid of one or more assessors specially qualified and try and hear the

cause or matter wholly or partially with the assistance of such assessor.

(2) That the remuneration, if any, to be paid to an assessor shall be

determined by the court on the direction of the President of the Court or as

may be otherwise prescribed pursuant to this Act or any other enactment

or law or any Regulations made pursuant thereto.

144

An "assessor" is one who evaluates or makes assessments, especially for the purposes of taxation, or he or she is a person, who advises a Judge or Magistrate about scientific or technical matters during trial.1 The assessor(s) must be specially qualified, on the area where his advice and or assistance is sought. The NIC may also use his assistance wholly, or partially in the said trial. The constitution as amended by the Constitution Third Alteration

Act 20102 made the use of assessors a constitutional issue and further defined the qualification of the intended assessor to be a person who must have been qualified and experienced in his field or specialization for a period of not less than 10 years.3

Furthermore, Order 17 of the National Industrial Court Rules 2007 requires that, an assessor shall subscribe to judicial oath of secrecy before the president or a judge of the court before assuming duty. Also the assessor's duty shall be only, to advise or give an opinion on the issue for which, he is appointed, which must be limited to an area in which he is an expert. He is not to give a written opinion in the form of judgment, nor is he required to dissent or concur with the court’s judgment. The court therefore is not bound to accept the opinion or advice of the assessors. As they are mere advisers to the Court; they have no votes in determining the matters in controversy.4 It is pertinent to note that, all issues relating to the court sitting with an assessor is entirely to the discretion of the court, including who to appoint, when to appoint him, and remuneration if any, the implication then is, that parties do not have any input, as to the appointment of an assessor, and neither can they cross examine him on his opinion. That is not difficult to understand, because his opinion is not binding on the court.

1 Gezoji & Anor v Kulere (2011) LPELR 8951 2 Section 254E (3) 3 Section 254E (4) 4 Adeigbe & Anor v Kusimo & Ors.(1965) NMLR 284at288. 145

6.2. REFEREES

Under sections 30 and 31 of the NIC Act 2006, the court may refer any question arising in any cause or matter to an official or special referee for inquiry or report. The said section 30 (1) provides that subject to the Rules of Court, the Court may refer to an official or special referee for inquiry or report any question arising in any cause or matter. While section 30 (2) provides that the Report of an official or special referee may be adopted wholly or partially by the

Court and if so adopted, may be endorsed as a judgment or order to the same effect.

The qualification of the special referee, is not provided by the Act, that is a draw back on that provision. However, it is specifically provided that the officer in question, must be an officer of the court5. It ought to be stated that the officer in question must be knowledgeable in that area in question.6

Also unlike, the appointment of an Assessor which the court is empowered to do suo moto without any input from the parties, before a reference is made, the parties must consent7 to that. It is safe to argue then that, any of the parties to the suit may take the initiative of the reference provided that, the other party consents to it, then the reference will be made.

It is important to note that, such reference is made:

(a) if all the parties interested, who are not under disability, consent; or

5 Order 18 Rules 1, of the National Industrial Court Rules, 2007. 6 Order 18(1) of the National Industrial Court Rules provides that “In any action before the Court, the Court may at any time order the whole cause or matter or any question or issue of facts arising therein, to be tried before a special referee, officer of the Court, or arbitrator as agreed by the parties." 7 Section 31(a) of NIC Act 2006 146

(b) if the cause or matter requires any prolonged examination of documents

or any scientific or local investigation which cannot, in the opinion of

the Court, conveniently be conducted by the Court through its ordinary

officers; or

may at any time order the whole cause or matter or any question or

issues of fact arising therein, to be tried before a special referee, an

official referee, officer of the Court or Arbitrator respectively agreed

on by the parties.8

32-(1) In all cases of reference to an official or special referee or

arbitrator, the official or special referee or arbitrator shall be deemed to

be an officer of the Court and, subject to Rules of Court, shall have

such authority, and conduct the reference in such manner as the Court

may direct.9

Also, the 1999 Constitution as amended by the Constitution Third (Alteration) Act 2010,10 provides that The National Industrial Court may establish an Alternative Dispute Resolution

Centre within the Court Premises on matters which jurisdiction is conferred. It is very important to examine some of the facilities that the centre may offer.

8 section 31 ibid 9 section 32 ibid 10 Section 254C(3) 147

6.3. ARBITRATION: MEANING AND SCOPE

There is no universally accepted definition of arbitration. Each definition relates to the legal system and elements of arbitration being projected by the author. However, there are obvious elements common to all types of arbitration. It has been defined as a private judicial process initiated by the agreement of parties to a dispute, existing or anticipated, to have it (dispute) settled by a tribunal with one, or more arbitrators of their choice, whose decision (award) is intended to be final.11 Romilly MR. in Collins V. Collins defined arbitration as "A reference to the decision of one or more persons, either with or without an umpire, of some matter or matters in difference between the parties."12

That definition no doubt, is applicable to other forms of dispute resolution. Fouchard a

French Lawyer chose to describe, rather than, define arbitration.

In his words, arbitration is: "apparently rudimentary method of settling dispute, since it consists of submitting them to an ordinary individual whose only qualification is that of being chosen by the parties.”13

Also, it is defined as: "A method of dispute resolution involving one or more neutral third parties who are agreed to by the disputing parties and whose decision is binding."14

These definitions certainly do not contemplate institutional arbitration though they highlighted the benefits of arbitration.

11Akpata E.I.O, Arbitration, An introduction and where it fits into Disputes Resolution Process., being a paper delivered at the Chartered Institute of Arbitrators Lagos ,December 1999. 12Collins V Collins 28 L.J Ch.186, (1858) 26 BEAV 306 quoted by Nnaemeka Agu JSC (as he then was) in his dissenting judgment in Agu V Ikewuibe(1991) 4SCNJ 56 at 82. 13 L. Arbitrage Commercial International [1965] p 30, 31 quoted by Akpata E.O.I. op. cit p. 2. 14Bryan A Gardner Black's; Law Dictionary,9th.ed.op.cit pg.119. 148

However, the definition of Arbitration as contained in Halsbury’s Laws of England15 was quoted with approval, by the Supreme Court in the case of Kano State v Fanz Construction

Company limited16 thus:

An arbitration is the reference of a dispute or difference between not less than

two parties for determination, after hearing both sides in judicial manner, by a

person or persons other than a court of competent jurisdiction. The persons

whom a reference to arbitration is made are called arbitration where provisions

made that in the event of disagreement between the arbitrators (Usually in such

case two in numbers) the dispute is to be referred to the decision of another, or

third person, such person is called the Umpire. The decision of the arbitrator or

umpire is called “award."

Of all these definitions, that contained in the Halsbury’s Laws of England and quoted in Kano

State v Fanz Construction Company Limited (supra) is preferred and adopted in this thesis, because it highlighted, the three basic elements of arbitration common to all types of arbitration. These are:

(i) A dispute between the parties

(ii) An agreement between the parties entered into either in the original contract or

at the time of the dispute and

(iii) Parties have agreed to be legally binding.

Section 31 (c) provides that:

15 4th Edition Vol. 2 para 601 page 332 16 [1990] 6 SCNJ 77 at 98, See also MISR Nigeria Ltd. v Oyedele [1966] NCLR 191 at 194.

149

if the matter in dispute consists wholly or in part of accounts, the Court may at

any time order the whole cause or matter or any question or issues of fact

arising therein, to be tried before a special referee, an official referee, officer of

the Court or Arbitrator respectively agreed on by the parties.

While the National Industrial Court Rules 2007 provides that:17

In any action before the court, the court may at any time order the whole cause

or matter or any question or issue of facts arising therein, to be tried before a

special referee, officer of court, or arbitrator as agreed by the parties.

From the foregoing provisions, it is elementary that, both parties must agree on the person of the arbitrator before arbitration can take place.

6.4. MEDIATION/CONCILIATION

The term Mediation is oftentimes used interchangeably with the term Conciliation. It has been argued that, the point of distinction is that, while the mediator does not prepare any terms of settlement, the conciliator decides what the terms of settlement should be, although with the agreement of the parties18.

Learned author Gaius Ezejiofor,19 while agreeing with the view that Mediation and

Conciliation are sometimes used interchangeably, argued that, this is not right, because they are not quite the same thing. He stated that, the role of the Mediator is to assist the parties to reach an agreed settlement of the dispute. Thus, the Mediator does not himself suggest a

17 Order 18(1) 18 Akpata E.O.I.; The Nigerian Arbitration in Focus op.cit.P162. 19 Ezejiofor Gaius; The Law of Arbitration in Nigeria, Longman Publishers 1992 p.7. 150

solution to the parties and cannot compel them, to reach a settlement. He argued further that, a

Conciliator on the other hand considers carefully each party’s evidence, and submissions against the rebuttal thereof, by the other party, and draws up and proposes the terms of settlement which represents in his perception, a fair compromise of the dispute. However, it has been submitted that: “Any distinction between them may be one without a difference as for all practical purposes, Conciliation and Mediation are same”20

This writer agrees with that view as expressed above, in this work therefore, Mediation shall be used interchangeably with Conciliation. It will be noted that, the Rules of Conciliation forms Part Two21 of the Arbitration and Conciliation Act Cap 19, Laws of the Federation of

Nigeria 1990.22

6.4.1. WHAT IS MEDIATION?

Mediation consists of influencing the parties to come to agreement by a third party, called the

Mediator. The Mediator’s sole function is to help the disputants resolve their dispute consensually. The Mediator helps the parties to consider their common interest as more important than they had done before. He may also use promises and threats in which case, he may promise the parties help or support in future if they become reconciled or threaten to ally himself with one them if the other does not give in. Though a mediator does not necessarily have to go in for compromise solutions, but for many reasons he will as a rule do so.23

20 Dr. Amazu Asouzu: Developing and Using Commercial Arbitration and Conciliation in Nigeria.1994, Lawyers’ Bi-Annual, Vol.1 No. 1, P2. 21 Sections 37 to 42. 22 Now Cap A8 LFN 2004. 23 Kehinde Aina: Alternative Dispute Resolutions (ADR) Solution to Courts Congestion 1,The Nigerian Guardian July 1,1997 P 80. 151

6.4.2. ADVANTAGES OF MEDIATION

Control over proceedings: Mediation allows a party to keep firm control over its dispute, and by so doing, determine the outcome. This is why the outcome is called “agreement” unlike an award in arbitration or judgment in court litigation. Thus, the parties determine procedure, time frame for settlement, terms of reference of the Mediator and other issues in the process.

This feature enables the parties to act not as antagonists, but as Joint Problem Solvers. They discover the root cause of their problems, and find settlement that can take care of their particular and peculiar needs, and interests, shun smartness, brinkmanship and violence, prevent loss of face, guaranteeing continuity in business relationship and reduce future conflicts by providing mechanisms for resolving such new conflicts within themselves

Flexibility: Mediation has no set of fixed procedural rules or binding laws, which must be complied with or followed except those agreed on by the parties.

Parties Input Into Decisions: Unlike in Arbitration award, or in judgment of a court, any agreement reached in mediation is usually a bi-product of the parties themselves. Nobody imposed anything on them in resolution of the dispute.

Speed: The absence of fixed laws, and rules of procedure that, must be followed, coupled with the absence of pleadings to file, applications, discovery and the likes make mediation very cheap and fast.

Cost Saving: A resultant effect to the speed of resolution is, cost saving. Once you extract antagonism from dispute resolution, or from the disputants, settlement then is much easier and quicker and when parties settle quickly, they reduce cost.

152

6.5. NEGOTIATION

The word negotiation has been variously defined. Hornby and others defined it as the act of discussing in order to come to an agreement.24 It has also been defined, as the process between two or more opposing parties to a deal or transaction by which each party seeks to obtain the maximum benefits and rewards from the deal that is struck or the agreement that is reach.25 Oluwole Akanle, sees Negotiation as “a process by which parties arrive at an agreement over an issue in respect of which they have different and varying positions, objectives and goals”26 from the foregoing, Negotiation essentially involves, the bringing about of relationships which also involves the prescription of the terms and conditions of the relationship.

6.5.1. NEGOTIATION STRATEGIES

There are three main strategies available to negotiation as follows:-

Competitive or Win/Lose Strategy: Here, each party is striving for victory. Each party wants to win and rest advantage both from the other party and from the situation regardless of the damages that could be done to future relationship between the parties.

Though it has some clear advantages, it has some risks and weaknesses in that:-

(a) It generates tension;

24 Hornby A.S.et.al; The Advanced Learner’s Dictionary of Current English, Oxford University Press, 2nd.ed 1963 P.653. 25 ROBERT T.J.BOND: Mastering the Essential Skills of International Negotiation, paper delivered in 3-Day International Seminar on Negotiation, Drafting and Understanding International Commercial Agreement, London 8th-10th November, 1999. 26 OLUWOLE AKANLE: ADR Procedure other than Litigation for the Resolution of Commercial Disputes, paper delivered in a workshop on International Commercial Arbitration and other ADR Mechanisms 12th-16th April, 1999, in Lagos. 153

(b) It can generate irritation, frustration and mistrust in an opponent.

(d) It increases the likelihood of deadlock and the need to go to trial;

(e) It may worsen relations between the two sides;

(f) Any mutual interests of the parties may be losing;

(g) Trivial issues may be over emphasized;

(h) It may take longer to reach an agreement;

(i) There is a danger that agreement may not be easy to enforce;

(j) The competitive negotiation may build up a reputation which makes future

opponents wary and antagonistic.

The Cooperative Style Win/Win: The objective of this strategy, is to seek a mutual solution rather than to achieve the most possible. Thus, a win-win occurs when, both parties feel that not only, have they achieved as good a result as possible, but that, they have helped each other achieve such a satisfactory result. The parties here look out for common ground and shared interests. Rather than taking a fixed position, the negotiator would be making reasonable offers and seeking reasonable concessions in return.

The cooperative (win-win) style has the following advantages:

(a) It is most likely to achieve a settlement;

(b) It is likely to improve, or at least not damage, the relationship between the

parties;

(d) It may encourage the other side to make concessions; 154

(e) It is unlikely to result in difficulties in enforcement;

(f) It has the potential of yielding most for both sides.

Disadvantages of the Cooperative Style: The cooperative style has a number of potential disadvantages, especially when used, against a competitive opponent, who may view the cooperation simply as weakness, and may exploit it. The cooperative negotiator must never assume that his attitude will be reciprocated.

The Disadvantages are:

(a) That concessions may be made too easily;

(b) That a settlement is made for the sake of settling;

(d) That the strength of a case may be undervalued and insufficiently

pursed;

(e) An easy option is mistaken for a correct option;

(f) The structure of a negotiation breaks down in exploring general concepts rather

than precise positions;

(g) That a settlement is made for much less than the client might hope to achieve.

The Problem Solving Approach: The parties here, see the case not as a contest but a shared difficulty to which, the best solution must be found. Therefore, every factor is taken into consideration in devising the best solution. Because the major objective is, to achieve the best possible for both sides, maximizing gains all round

155

In all, a unique advantage of Negotiation is that, the parties retain control both over the process and the outcome.

Mini-Trial: In a mini-trial, there is a panel made up of a neutral third party, and one unconnected executive from each side, with authority to settle. Then representations are heard from each side. The panel retires to discuss, and resolve the dispute through negotiation with the neutral third party, acting as the chairperson. The neutral third party could advise on the likely outcome if, the case goes to trial.

Expert Appraisal: In expert appraisal, the issue in controversy or part of the issue is referred to an expert who gives non-binding opinion.

Expert Determination: Parties here, refer the dispute or issue in controversy to an expert for determination with an agreement to be bound by the decision of the expert. Because the terms of reference are clearly defined, it becomes a contractual obligation. Failure to adhere to expert’s decision constitutes a breach of contract.

Early Neutral Evaluation: This method uses a neutral third party, to provide a non-binding assessment, sometimes in writing of the case strength and weaknesses of the parties. Here, the evaluator will assist the parties in settlement negotiations and or renders an advisory opinion as to settlement value, if the parties so request.

Disputes are inevitable in life, Labour disputes inclusive. Varying methods are employed in their resolution, ranging from the orthodox litigation, to the traditional arbitration, to the non- adjudicatory methods of mediation/conciliation and negotiation. Negotiation, is an everyday activity for human beings. It is cheap, economical and very satisfactory means of disputes 156

resolution. Not only that, Mediation is rational, the underlying philosophy being to speak peace, to heal wounds and to reconcile the parties. It is for these that labour disputes are suited for resolution through the non-adjudicatory methods of Mediation/Conciliation and

Negotiation.

Since the National Industrial Court is constitutionally provided, to establish an Alternative

Dispute Resolution Centre within the court Premises, on matters upon which jurisdiction is conferred. It is recommended that, this centre should have a pool of trained arbitrators, mediators/conciliators and negotiators who, may be readily used in giving life and relevance to that, provision for reference.

6.6 RULES OF COURT

In conformity with the powers conferred on him,27 the President of the NIC28 made the

National Industrial Court Rules2007 (hereinafter referred to as the NICR) which Rules are applicable to the NIC.

The provisions of the NIC Act 2006 and the Rules of the NIC are expected to aid the court in the realization of its set objective of expeditious determination of the cases brought for adjudication in the court.

The NIC Rules 2007 consist of 31 Orders with two Forms, and two Appendixes. The specialized nature of resolving labour disputes demands that the process be guided by certain ideals. In this regard, speed, flexibility, a certain measure of informality, etc are prerequisites.

Consequently, Order 1 Rule 1(3) of the NIC Rules 2007, for instance, provides that:

27 Section 36(1) of the NIC Act 2006. 28Honourable Justice B.A.Adejumo 157

"These Rules shall apply to all proceedings including part-heard causes and matters in respect of steps to be further taken in such causes and matters for the attainment of a just, efficient and speedy dispensation of justice."

For quick and easy dispensation of the cases before the court this writer suggests an amendment of some of the provisions of the Rules as follows:

6.6.1 ASSIGNMENT OF CASES

Order 2 Rule 4 of the NICR provides thus:

Whenever any matter under section 7(1) (b); section 17(1) and (2); Section 18

or Section 19(a) and(c) of the Act is filed in any division of the court, the

Registrar shall refer the matter to the President of the Court for assignment to a

judge of the court or a panel of judges as he or she may deem fit.

The use of the adverb “whenever” suggests at all times and in all cases, coupled with the use of the word “shall” in an obligatory sense which makes it mandatory that in any action brought under the aforesaid sections that is to say Sections 7 (1) (b), 17 (1) and (2), section 18 or 19 (a) and (c) the Registrar of the Court where, the case is filed whether in Kano, Lagos,

Calabar, Enugu or in any other division must first of all, refer the matter to the President of the court for assignment. This provision is not only cumbersome but time wasting considering the fact that the President of the court is saddled with other administrative matters.

Though by the provision of Rule 5 of that Order 2 the President of the Court may “direct” a judge of the Court to assign any case under the aforesaid sections of the principal Act, one can

158

safely argue, that Rules 4 and 5, when read together lead obviously to the conclusion that before the direction for assignment by the President of the Court as contained in Order 2(5), the case must have been sent to the President, at the first instance in compliance with, the provisions of Order 2(4), who now may assign the case personally or directs any other Judge to so assign the case to a Judge, or panel of Judges as the case may be. It is submitted that, unless there is a standing order from the President to a Judge, to assign such cases whenever filed29 that provision in Order 2(4), will certainly cause so much delay in determining such cases.

Furthermore, the said Order 2(4) also diminishes the clear intendment of the provisions of

Order 11(1) (4) as shown below:

For the purpose of hearing and determining interlocutory applications, the

court shall be duly constituted, if it consists of a single judge appointed under

section 2 subsection (3) or (4) (a) of the Act, Provided that a panel of three

judges may also hear and determine interlocutory applications, where the

President of the court or the Presiding Judge of the Division so directs.

The foregoing provisions no doubt target quick dispensation of interlocutory matters. It is therefore suggested that, Order 2(4) be deleted or in the alternative that, the power to assign

29 Any such order clearly negatives the intendment of Order 2(4) as the Rules of court ought to be obeyed see: Duke Vs Akpauyo Local Government (2005) 24 NSCQR 401 and Nonye v Anyiche (2005) 21 NSCQR 358. 159

such cases be left with the presiding Judges of the various divisions of the Court while the

President shall assign those cases filed at Abuja30.

6.6.2 COMMENCEMENT OF ACTION

There are three methods of commencement of actions in the NIC, the first method is under

Order 3 Rule 4 is by Complaint, the equivalent of the general writ of summons. To commence an action at the NIC, Order 3 of the NICR requires the filing of a complaint which shall conform to Form 1 with such modifications or variations as circumstances may require. The complaint shall be accompanied by a statement of facts establishing the cause of action, copies of every document to be relied on at the trial, and a list of witnesses to be called.

Where the complaint is one against an award or decision by an arbitral tribunal, board of inquiry, decision of the Registrar of Trade Unions, or any other authority in respect of matters within the jurisdiction of the Court, the complaint shall be accompanied by a record of appeal, which shall comprise of the certified true copies of all the processes exchanged by the parties at, or the representations made to the lower tribunal; the certified true copies of the record of proceedings before the lower tribunal (where applicable); the certified true copy of the award or decision of the lower tribunal; and the appellant’s brief of argument.

30 Some of the provisions of the principal Act affected by the provisions of Order 2(4) & (5) deal with extreme urgent situations, for instance Section 19(a) which grants the court powers to grant “urgent interim reliefs”. There are plethora of decided cases showing that time is of essence in such applications: in Dr Egwuatu v Egwuatu (1992) 4 NWLR (PT237)594 the court held that the purpose of applying for interim injunction is to keep matters in status quo until trial, see Ita v Nyong(1994) 1NWLR (PT.318) 56 ,see also Nigeria Cement Company ltd. v Nigerian Railway Corporation(1991) 1NWLR (PT.220) 747. 160

6.6.3 ORIGINATING SUMMONS

The second method of commencement of actions in the NIC is, by way of originating summons. Initially this method was not provided for under the NICR. However, by Order 3

Rule 5A of the Rules as inserted by National Industrial Court of Nigeria Practice Direction

2012, which came into effect on 1st July 2012, originating summons as a means of commencing proceedings in the court was introduced. It may also, be used to commence an action at the NIC in circumstances similar to its usage at the High Courts, and especially, when activating the interpretation jurisdiction of the Court in respect of any of the documents listed under sections 7(1)(c) of the NIC Act 2006 and 254C(1)(j) of the 1999 Constitution, as amended.

6.6.4 REFERRALS

The third method of initiating proceedings in the NIC is by referrals. The referral method of commencing actions at the NIC was the only method by which an action before the Court could be commenced under the old dispensation31. That still subsists given that, section 13 of the TDA enjoins, the Minister of Labour to refer to the NIC a matter heard by the IAP but objected to, by any of the parties. This means that in addition to the complaint and originating summons, an action can be commenced by means of a referral from the Minister of Labour.

Orders 3 and 9 of the NIC Rules, enjoin both the claimant and the defendant to frontload the documents they intend to rely on, at the trial of the case. The essence of this requirement is, so that, the opposing party is made aware of the case, he is to meet in court – the idea being that, there should be no ambush in litigation. How frontloaded documents are treated by the Court

31 Under the Trades Disputes Act. 161

was succinctly stated by the NIC, in Kurt Severinsen v Emerging Markets Telecommunication

Services Limited,32 in the following words:

This Court made it clear to the parties that the practice in the Court is that all

frontloaded documents are deemed admitted unless specifically objected to, in

which event the Court will then make a ruling on the admissibility or otherwise

of the documents. Once deemed admitted, all that is left is the weight or

probative value that will be placed on them by the Court. All of this is made

possible given that this court is generally enjoined to be flexible and less

formal; and while it is enjoined to apply the rules of evidence, it may depart

from it in the interest of justice. In this regard, this Court, for instance, admits

secondary evidence of documents, not necessarily the primary evidence where

there is no dispute regarding the authenticity.33

Furthermore, in AG, Osun State v NLC (Osun State Council) & 2 ors34, the NIC affirmed this procedure in the following words:

The claimant had earlier filed its written address in support of its claims. The

claimant’s written address is dated 25th July 2012. To the claimant in its written

address, going by the statement of facts and the frontloaded documents, what is

essentially in dispute in this case is the interpretation of the National Minimum

Wage Act Cap. N61 LFN 2004, as amended by the National Minimum Wage

(Amendment) Act 2011 and the Trade Disputes Act Cap. T8 LFN 2004. This

32 [2012] 27 NLLR (Pt. 78) 374 at 454. 33See sections 36 and 37 of the Trade Disputes Act 2004 and section 12 of the National Industrial Court Act 2006. 34 Unreported suit No. NICN/LA/275/2012 delivered on December 19, 2012. 162

being the case, the claimant [then] urged that with the documents referred to as

Annexes above, the Court can determine this suit without the need for any oral

evidence from the parties. That being certified true copies the documents will

be tendered from the bar. This was, however, not necessary as the practice in

this Court, going by sections 36 and 37 of the Trade Disputes Act 2004, section

12 of the National Industrial Court Act 2006 and Kurt Severinsen v Emerging

Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at

454, in allowing the frontloading of documents assumes them to be

automatically admitted except specifically objected to by the opposing party.

The question of the weight or probative value to be attached to the frontloaded

documents is, however, separately and independently considered by the Court

when evaluating the frontloaded documents.

6.6.5 SERVICE OF PROCESSES

By Order 7 Rule 1, any notice or other document required or authorized by these Rules to be served on, or delivered to any person may be served on that person personally or sent by registered post or courier or left at that person’s address for service or, where no address for service has been given, the registered office, principal place of business or last known address, and any notice or other document required or authorized to be served on, or delivered to the court may be sent by registered post or courier or delivered to the Chief Registrar. Order 7 goes on in Rules 2 – 15 to make special provisions regarding service of processes on prisoners, corporations or companies, public functionaries, persons out of jurisdiction, etc.

The point to note here is that, the Rules accommodate personal service of processes but not, in

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the technical sense understood in the High Courts. Under the NIC Rules, personal service is simply one of several methods of effecting service of processes, not the main method. This means that, a separate application for substituted service is unnecessary if personal service fails.

Where there is an error on the part of the Court, which results in non-service of any process, this error on the part of the Court, cannot be visited on a litigant as per the NIC’s decision in

Life Flour Mill Ltd and anor v NUFBTE and ors.35

6.6.6 TRIAL ON RECORD

Given the informality enjoined by sections 36 of the TDA and 12 of the NIC Act 2006, and the necessity to dispense with the cases expeditiously, it is valid for parties to agree to what is termed at the NIC as trial on record36. By this procedure, parties are at liberty to agree that, they will not lead evidence and so would only rely on the documents they have frontloaded.

The validity of this procedure is evinced by the following authorities. In the first place, under sections 15(2) and 16(2) of the TDA 2004, regarding a dispute as to the interpretation of the award of the IAP or the NIC, or the interpretation of a collective agreement, the NIC may with prior consent of the disputing parties decide the matter without hearing the parties. Secondly,

Order 19 Rule 9(ii) of the NIC Rules 2007 provides that, “Documentary evidence shall be put in and may be read or taken as read by consent”. Lastly is case law, enunciated by the courts.

In this regard, Akinola v VC, UniIlorin37, Agbaisi v Ebikerefe38 and Agbahomoro v

35 Unreported suit No. NIC/42/2007 delivered on July 16, 2008. 36 Kanyip B.B. Current Status of the National Industrial Court Rules. op.cit pg.24 37 [2004] 11 NWLR (Pt. 885) 616. 38 [1997] 4 NWLR (Pt. 502) 630. 164

Edieyegbe39 held that a court is entitled to look at a document in its file, while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. By Ezennah v Atta40 and Dikwa v Modu41, it is not necessary for a party to a suit to give evidence, but most desirable if he is the only competent witness. The two cases went to establish that a party is not bound to testify in his own case or his own behalf if he could otherwise prove his case. Therefore, the trial on record procedure is one such method where a party could “otherwise prove his case.”42 And by Faladu v Kwoi43, a defendant who failed to file pleadings is still entitled to a hearing. He could, for example, decide to rely on a point of law inherent in the plaintiff’s case without the necessity of filing pleadings and adducing evidence. He may rest his case on the plaintiff’s case and simply wish to address the trial court on the issues raised in the plaintiff’s case.

The foregoing has to be distinguished from the procedure in Order 8 Rule 4 (Declaration by

Party who does not intend to Appear). That rule provides that:

At any time before hearing of a matter any party to the proceeding may file a

declaration in writing that such party does not wish to be present in person or

represented by a Legal Practitioner on the hearing of the matter. A copy of

such declaration shall be served on every other party who has filed a

Memorandum of Appearance and thereupon the matter shall be dealt with as if

the party had appeared.

39 [1999] 3 NWLR (Pt. 594) 170. 40 [2004] All FWLR (Pt. 202) 1858 at 1879. 41 [1993] 3 NWLR (Pt. 280) 170. 42 Kanyip B.B. ibid. 43 [2003] 9 NWLR (Pt. 826) 643 at page 657. 165

In the case of Folasade Odunsi v Mainstreet Bank Nigeria PLC44 The Claimant/Applicant brought an application, which was accompanied by a declaration in accordance with Order 8

Rule 4 above, praying for an order from the court that, the presence of the Claimant be dispensed with. And that, the case of the Claimant /Applicant be heard on the strength of the documents filed in the suit by her. Learned Counsel for the applicant argued in his written address, that by the express wordings of that provision, the claimant is simply required to file a notification by way of a declaration in writing of her decision not to be present at the hearing of the matter and for the case to be heard on the documents filed in the case.

The Learned Counsel for the Defendant/Respondent in opposition argued that, while Order 8

Rule 4 exempts a party or his legal practitioner from attending court during the hearing of a matter, that the provision did not exclude calling other witnesses, to testify in person before the court and cannot by any stretch of imagination take away the provisions of section 175,

205, 206, 214, 215 and 217 of the Evidence Act.

In granting the application sought the court held thus:

From the provisions of this Rule, it is obvious that all a party is required to do

is to file a declaration and he is automatically exempted from appearing in

person or his Legal Practitioner appearing in person. I agree with the

submission of Learned Counsel for the Defendant/Respondent that Order 8

Rule 4 did not deal with exclusion of oral evidence or a party giving evidence

in his trial and therefore the rules of evidence as enshrined in the Evidence Act

are still applicable.However, in as much as, the rules of evidence are applicable

44 Unreported suit No. NICN/LA/455/2012 delivered on March 3,2014. 166

in this court, this Court is enjoined to depart from it in appropriate cases in the

interest of justice by section 12(2)(b) of the NIC Act 2006. And I hold that this

is one of those situations contemplated under section 12(2)(b) of the NIC Act

2006.I hereby order that the case of the claimant be prosecuted on the strength

of her documents filed in this matter."

6.6.7 PRINCIPLES OF EQUITY

Section 13 of the NIC Act 2006, provides as follows:.

Subject to this Act, in every civil cause or matter commenced in the Court, law

and equity shall be administered by the Court concurrently.

And section 15 provides that:

Subject to the express provisions of any other enactment, and in all matters not

particularly mentioned in this Act in which there was formerly or there is any

conflict or variance between the rules of equity and the rules of common law

with reference to the same matter, the rules of equity shall prevail in the court

so far as the matters to which those rules relate are cognizable by the Court.

The concept of equity at all times connotes the issue of fairness. By that provision, the NIC is expected to be fair in the application of the law in matters that, are adjudicated upon in the

Court. In the very recent case of Mrs. Gloria Ijeoma Nwokoma v First Bank Plc,45 the

Claimant commenced this action by a General Form of Complaint filed on the 29th day of

January 2013. The summary of the claimant's case is that she worked assiduously for the

45 (2014) 50 NLLR (Pt.166) 357. 167

defendant from that 1980 when she was employed for over 30 years after which she was summarily dismissed on the 4th day of September 2010.That during this period she rose to the rank of a Branch Business Manager. That because there was no armoured vehicle or bullion van meant to transfer money(specie movement) stationed in her branch, She carried out the specie movements using ordinary vehicles on special arrangement with police escort.

Though there was no money lost to robbers while doing so, she was summarily dismissed for offending the defendant's policy on specie movement. The NIC held that the punishment was too harsh and vindictive, and on the ground of equity commutated the summary dismissal to early retirement.

6.6.8 APPEAL OVER THE DECISIONS OF THE NATIONAL INDUSTRIAL

COURT

It has been submitted, that at inception, the decisions of the NIC, were meant to be final and binding given the interposition of the processes of mediation, conciliation and arbitration before adjudication at the NIC.46 The thinking was that, having to go through all these processes presuppose that, it would be requiring too much of the legal process if appeals were to be allowed beyond the NIC. This thinking predominated until 1992 when Decree 47 of that year introduced section 20(3) into the TDA permitting appeals, as of right from the NIC to the

Court of Appeal on questions of fundamental rights. To keep faith with this fact, section 9(1) of the NIC Act 2006, provides for limited appeal to the Court of Appeal from the decisions of the NIC.

46 Kanyip B.B. The National Industrial Court of Nigeria: The Future of Employment/Labour Disputes Resolution; A paper presented at the National Workshop on Labour and Industrial Relations organized by the Nigerian Institute of Advanced Legal Studies, which held from 25th – 27th July 2011 31 168

The said Section 9 of the NIC Act 2006 provides that:

(1) subject to the provisions of the Constitution … 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

Furthermore, since section 9 of the NIC Act aforesaid started with the phrase subject to the provisions of the Constitution the import thereof is that whatever is provided therein is subject to, and cannot override the provisions of the constitution of the Federal Republic of Nigeria. It was the reasoning then that the said section 9 was unconstitutional in view of the fact that the constitution generally guaranteed the litigant's right of appeal to the appellate courts which ordinarily include appeals from the decisions of the NIC, to the Court of Appeal even though the NIC, then was not listed in the constitution.47

However, it was argued48 that, the limited right of appeal granted by section 9 of the NIC Act

2006 haven been given judicial stamp of approval by the Court of Appeal, in Schumberger

Anadril Nig. Ltd v PENGASSAN49, the talk of unconstitutionality of section 9 must be disregarded. And that Sections 240 – 246 of the 1999 Constitution, are the sections providing for appeals to the Court of Appeal. In these sections, appeal, whether as of right or with leave, is provided for and the court from which, the appeal can come is equally provided for.

Nowhere, in these sections is the NIC named as such. This means that, the relevant provision

47 See Agbaje Fred; The Legal and Constitutional Anatomy of the New Industrial Court Act, (2007) NJLIR Vol.1 No.1,P.78.Uvieghara E.E. Nigeria's Labour Laws and International Jurisprudence: 48 Kanyib B.B. ibid p.31 49 Unreported case No. CA/L/38/2008 delivered on February 10, 2009. 169

that would govern the case of the NIC is the general provision of section 246(2) of the

Constitution, which states that, the National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law, or tribunal established by the National Assembly. Section 9 of the NIC Act, which grants limited right of appeal to the Court of Appeal comes squarely within the purview of section 246(2) of the 1999 Constitution, and so nothing about it can be said to be unconstitutional. The current practice where litigants on virtually any ground including issues of stay rush on appeal to the

Court of Appeal from the NIC should be frowned on.

Continuing given the provision of section 9 of the NIC Act 2006, and sections 240 – 246 of the 1999 Constitution, the NIC held in the case of Joy Maskew & ors v Tidex Nigeria

Limited50 that it does not even have the power to grant leave to appeal against its decision.

Most probably to guard against indiscriminate appeals,51 section 47 of the NIC Act 2006, specifically provides that:

where permitted by the National Industrial Court or any other Act of the

National Assembly, an appeal to the Court of Appeal from the decision of the

NIC shall not operate as a stay of execution but the National Industrial Court

may order a stay of execution either unconditionally or upon the performance

of such conditions as may be imposed in accordance with the Rules of Court."

It is obvious that, the National Industrial Court is a superior court of record with equivalent status, and powers of any other High Court in Nigeria including being a court of first instance

50 Unreported Suit No. NIC/1M/98 the ruling of which was delivered on June 8, 2009. 51 kanyip B.B. ibid p.31 170

to the court of Appeal. In Coco-Cola Nig. Ltd. and 2 others v Titilayo Akisanya,52 counsel for the appellants had urged the Court of Appeal to affirm the right of appeal over the decisions of the NIC, to the Court of Appeal in all matters. The Court of Appeal pursuant to the intent and proper interpretation of Section 243 (2) and (3) of Constitution as amended and in harmonious reading of Sections 17, 36, 33 (2), 240, 241and 242 thereof, rejected the foregoing argument, and confirmed the limited right of appeal over the decisions of the NIC. The court per

Ayobode O. Lukulo – Sodipe (JCA) delivering lead judgment held as follows53:

Appeal from the Court of Appeal lie to the Supreme Court pursuant to the

provision of Section 233 of the amended Constitution. In Section 233(2)(a) –(f)

the amended Constitution provides for when an appeal shall lie from the

decisions of the Court of Appeal to the Supreme Court as of right and in

Section 233(3) provides that appeal against the decisions of the Court of

Appeal to the Supreme Court. Section 243(2) – (4) of the amended

Constitution specifically provides for appeals from the lower court to the Court

of Appeal. The provisions thereof read thus ...It is in my considered view clear

from the provisions re-produced above; that the lower court though a superior

court of record is not in the same league with the Federal High Court or State

High Courts against the backdrop of appeals. The lower court is clearly the

only superior court of record created by the Constitution and whose decisions

can never be tested on appeal in the Supreme Court. I have not said that the

lower court is the only adjudicatory body established by the Constitution

whose decision cannot be tested on appeal in the Supreme Court because I am

52 (supra) 53 From page 30 to 31 171

aware that the amended Constitution has made the decisions of this court in

election matters (save Governorship and Presidential) not subject to appeals to

the Supreme Court. But it must be noted that election matters are sui generis.

In other words, all that I am saying is that by virtue of the provisions of the

Constitution hereinbefore referred to, the lower court is the only superior court

of record created by the Constitution that can entertain civil and criminal

jurisdictions and whose decisions in respect of its civil jurisdiction are

appealable to the Court of Appeal on ground of violation of fundamental rights

provisions of Chapter IV of the Constitution only, and whose decision(s) can

never get to the Supreme Court for review. The civil jurisdiction of the lower

court is extensive and diverse as it can be seen from Section 254C(a) –(m) of

the amended Constitution to the extent that its name “National Industrial

Court” would clearly appear not to properly describe the “multi-nature court”

superior court of records, the amended Constitution has now made the lower

court.

In any case, the Court of Appeal, having in mind the automatic right of appeal in respect of fundamental human right issues as enshrined in section 243 of the 1999 Constitution, as amended, has started to interpret that, section more liberally. In the case of The Management of Nestle Nig. Plc Ilupeju, Lagos v NUFBTE54, the Court held that the lock-out and hence improper termination of the appellant’s appointment smacks of breach of fundamental right for purposes of the right to appeal against a decision of the NIC. And in Coca-Cola Nigeria

54 Unreported Appeal No. CA/L/670/2009, the judgment of which was delivered on March 8, 2013. 172

Limited & ors v Mrs. Titilayo Akisanya55, the Court of Appeal went further to hold that a dispute over jurisdiction at the NIC is a fundamental right issue over which, there is a right of appeal to the Court of Appeal.

Granted that, the issue has judicially been settled by the judgment of their lordships in the above case, but the propriety of granting finality status to the judgment and decisions of the

National Industrial Court is not yet settled.56

6.6.9 JUSTIFICATION

It is important to note here that, the word decision as used herein includes, both interlocutory and final decisions. The idea of granting finality to the decisions of the National Industrial

Court of Nigeria can find justification in the fact that, the NIC is a specialized court, established for expeditious resolution of Labour disputes and related matters. Addressing discussants in a symposium on the status, power and jurisdiction of the National Industrial

Court, Justice B. A. Adejumo57 urged:

that in analyzing and discussing the provisions of the Act, Participants should

be guided by the basic philosophy that motivated the establishment of the

55 Unreported Appeal No. CA/L/712/2012, (supra) 56 Folabi Kuti; Is National Industrial Court of Nigeria Infallible because it is final? The Guardian Newspaper of November 12,2013at p.80.See also Rupert Irikefe; Re: Is National Industrial Court of Nigeria Infallible because it is final? The Guardian Newspaper of January 14,,2014 at p.54,Onyeweife P.H., Reflections on the Finality of the Appellate Jurisdiction of the Court of Appeal Over Appeals Arising from Civil Jurisdiction of the National Industrial Court, (2013)NJLIR Vol.7 No.3 p. 21.Kanyip B.B., The Finality of the Jurisdiction of the National Industrial Court, A paper presented at the 2014 Nigerian Bar Association(NBA) Conference which held in Owerri in August 2014. 57 The President of the NIC. 173

court. That is the need for a specialized Labour Court for expeditious

resolution of labour and trade disputes which are economic in nature."58

Also in supporting the finality or limited appeal, granted to the decisions of the NIC learned counsel Ejike Mbagwu, said that:

The philosophy was that, certain labour issues were not to be in court for too

long because it will defeat the justice of it.

That you cannot have a man who is claiming compensation or outstanding

emoluments having his matter laying on appeal for years. The man may grow

old and die before his matter is decided. That was the essence of the National

Industrial court decision being final as at the time it was established.59

It is obvious that, the courts are congested and cases last for a very long time before determination. And therefore, the economic nature of labour and trade dispute matters make those disputes improperly suited for the ordinary courts.

Globally, the guiding principle in resolution of employment/Labour disputes is that; "It is better to have a bad decision quickly than a good decision too late."60 This is a variant of the adage, ‘justice delayed is justice denied’. In other words, speed is a major guiding principle in the resolution of labour and employment disputes even if this is at the risk of an unfair

58 The Text of a Keynote Address at a One-Day Symposium on the Status, Power and Jurisdiction of the NIC, Airport Hotels, Ikeja, Lagos. August 15, 2011, p.3 59 See Wale Igbintade; Lawyers, Stakeholders bicker over creation of Labour Court of Appeal. National Mirror Monday, September 30,2013 p.41 60 Kanyip B.B. Labour Law in Niki Tobi (ed.); Uwais Through The Cases, (Snaap Press Ltd: Enugu), 2006 459 at p. 462). 174

decision.61A situation in which a worker challenged his suspension and subsequent dismissal from work and it took 13 years to resolve the question of jurisdiction with the Supreme Court ordering that the case be remitted to the High Court and tried all over by another judge, as was the case in Amadi v NNPC62 should certainly be unacceptable and frowned on.

That case was brought on the 29th day of April, 1987. The motion on notice to strike out the case for want of jurisdiction was dated 15th day of April, 1988; that is about a year after the suit was filed. The ruling of the High Court was delivered on the 20th day of June 1988. The appeal against the ruling was delivered by the Court of Appeal on the 16th day of February

1989. The final judgment on the interlocutory appeal was delivered by the Supreme Court on

June 2nd 2000. It thus took thirteen years, for the case to reach that stage whereupon, it was sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years.

Worse still, in Obiuweubi v CBN63, it took 23 years to resolve the issue of jurisdiction between the Federal High Court and the State High Court over an employment dispute.64 In view of the foregoing, the issue of the decisions of the NIC not being appeal-able has enjoyed support of some litigants, legal practitioners and members of the public.

Again, is the fact that, under Section 21(4) of the NIC Act 2006, the court shall be constituted of not less than three judges.65And since the Court of Appeal is properly constituted by a

61 Kanyip B.B ibid 62 [2000] 5 WRN 47 63 [2011] 7 NWLR (Pt. 1247) 465 SC 64 This was eventually transferred to the National Industrial Court and it is presently Suit No. NICN/ABJ/08/2013(Isaac Obiuwebi v Central Bank) before His Lordship Hon. Justice A. N. Ubaka of the Akure Division. 65 Subject to the provisions of the Act, the Rules of the court made under Section 36 of the Act and the directions of the President of the Court. 175

Panel of three judges.66 It is arguable that, a judgment of the National Industrial Court of a panel of three judges, can approximate to a judgment of a panel of three judges sitting on appeal over a judgment of a High Court.

The foregoing reason, is no longer sustainable in view of the fact that, the said section 21(4) of NIC Act 2006, has been repealed by Section 254E (1) – (2) of the 1999 Constitution as amended by the Constitution (Third Alteration) Act 2010, which provides thus:

(1) For the purpose of exercising any jurisdiction conferred upon it by this

Constitution or any other law, the National Industrial Court shall be

duly constituted if it consists of a single judge or not more than three

judges as the President of the National Industrial Court may direct

(2) For the purpose of exercising its criminal jurisdiction, the President of

the Court may hear and determine or assign a single judge of the Court

to hear and determine such matter.

It is now obvious that, the court is properly constituted by a single judge sitting to hear and determine any cause or matter before the court. Sitting in a Panel of not more than three, is now at the discretion of the President of the court and in practice the court usually sits in a single judge and hardly sits in a panel of not less three judges.

In Britain, the decision of the Employment Tribunal is appeal-able to the Employment Appeal

Tribunal.67 The decisions of this Appeal Tribunal are also appeal-able to the Court of Appeal

66 Section 21 (4) see further K. I. Amadi, Reflections on The Status of The National Industrial Court under The Constitution (Third Alteration) Act 2010,(2011) NJLIR Vol.5 No.1. 176

and from the Court of Appeal to the House of Lords.68 In Israel, the Regional Labour court is the court of first instance in labour matters, while the National Labour court, is the appellate court that hears appeals from the decisions of the Regional Courts.69 The Federal Labour

Court (Bundesarbeitsgericht) is the court of the last resort for cases of labour law in Germany, both for individual labour law (mostly concerning contracts of employment) and collective labour law (e.g. cases concerning strikes and collective bargaining). The court hears cases from the Landesarbeitsgerichte (Superior State Labour Courts), which, in turn, are the courts of appeals against decisions of the Arbeitsgerichte (Inferior State Labour Courts).70

Speaking on the issue, a Senior Advocate of Nigeria71, Chief Gani Adetola-Kazeem, said that:

it would be dangerous and risky to allow a single judge to take maters to

finality and make it a final court, adding that it would be better if the Court of

Appeal was allowed to entertain appeals from the NIC irrespective of whether

they are on fundamental rights or not.

Continuing, he said that:

We have sympathy for that law, but we also have reservations. At the time it

was first inserted in National Industrial Court Act 2006, it was mandatory that

the court will sit as a panel of three judges. But now, it has been narrowed

down to a single judge to determine matters. Power corrupts, absolute power

67 John Bowers QC; Termination of Employment; Cavedish Practice Notes, Cavedish Publishing Ltd. London 4th Edition 2001 Page 10. 68 John Bowers OC. Ibid p. 11, 61 and 99. 69 Labor Courts of Israel http://en.wikipedia.org/wiki/Labor_Courts_of_Israel accessed on September 17,2014 70labor Court of Germany http://en.wikipedia.org/wiki/Federal_Labour_Court_of_Germany (visited on 14/10/13) 71 Confusion Trails Industrial Court Decisions as Appeals Pile up; National Mirror Tuesday, July 9,2013 p.10 177

corrupts absolutely. I think, we should allow the Court of Appeal to entertain

appeal from the National Industrial Courts. This is because three good heads

are better that one. When a single judge makes mistake that cannot be

corrected by anybody, it could destroy the reputation of the court itself.

Nevertheless, in other jurisdictions such as in United Kingdom and South Africa,72 there exists Labour Appeal Court that, hears appeals against decisions in the Labour Court, and it is the highest court for labour appeals. For instance, in the United Kingdom, the Employment

Appeal Tribunal was exclusively established to hear appeals from Employment Tribunals in

England, Scotland and Wales. It also hears appeals from decisions of the Certification

Officer, and the Central Arbitration Committee, and has original jurisdiction over certain industrial relations issues.73

In Nigeria, while some lawyers are of the view that, there should be a specialised Court of

Appeal to handle appeal cases emanating from NIC decisions, others, believe that the Court of

Appeal, as presently constituted is competent to handle the appeals.

Speaking on the issue, a labour law expert, Mr. Dosu Ogunniyi advocates the establishment of a Labour Appeal Court, to handle appeals from the NIC. He argued that, in countries where they have specialised courts that handle industrial disputes, appeals emanating from the judgments of these courts, go to Labour Appeal Court.

According to him, there should be an appellate court like in the United Kingdom. That in

England, there is Industrial Courts specialising in labour and employment matters, they also

72South Africa labour Courts http://www.justice.gov.za/labourcourt accessed on September 17,2014 73 John Bowers QC, Termination of Employment, op.cit 10,see also pages 43-44 above. 178

have specialised Appellate Courts. This should be introduced into Nigeria. Continuing, he argued that, the introduction of specialized Appeal Court would provide opportunity for a higher court to look at the pronouncement of the NIC.74

6.6.10 CONSTITUTIONAL PROVISIONS

Section 243 (2)(3)and(4) of the 1999 Constitution as amended, provides as follows:

(1) An appeal shall lie from the decision of the National Industrial Court to

the Court of Appeal 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 National Industrial Court has

jurisdiction.

(2) An appeal shall only lie from the decision of the National Industrial Court

to the Court of Appeal as may be prescribed by an Act of the National

Assembly:

Provided that where an Act or Law prescribes that an appeal shall lie

from the decisions of the National Industrial Court to the Court of

Appeal, such appeal shall be with the leave of the Court of Appeal.

(3) Without prejudice to the provisions of section 254C(5) of this Act, the

decision of the Court of Appeal in respect of any appeal arising from

any civil jurisdiction of the National Industrial Court shall be final.

74 Dosu Oguniyi; ibid P.10 179

The foregoing, provision clearly dispenses with the need to amend the Constitution so as to be able to provide for appeals, from the decisions of the National Industrial Court of Nigeria.

Thus, an ordinary Act of the National Assembly will suffice, in providing for the rights of appeal against the decisions of the NIC without the necessity of constitutional amendment.

The proposition of allowing the decisions of the NIC to go on appeal to the Supreme Court, if allowed to see the light of the day, would have unwittingly defeated one of the most important reasons, for the enactment of the Constitution Third Alteration Act 2010. That is to have, labour and industrial relations matters be determined with dispatch, as against the practice in the regular courts, where labour and industrial related cases took inordinate times to be determined to finality, from the High Court through the Court of Appeal to the Supreme

Court. To obviate this problem, the legislature thought it wise to limit the right of appeal to terminate at the Court of Appeal.

The resolution of labour and employment disputes is guided by informality, simplicity, flexibility, speed and user friendliness. It is this need for timely determination of some grave electoral cases that necessitated the provisions allowing the National and State Houses of

Assembly election petitions to terminate at the Court of Appeal.75 It is still this same reason that necessitated the granting of original jurisdiction to the Court of Appeal in respect of

Presidential and Vice Presidential elections.76 The simple reason is to have these cases determined within the shortest possible time because of the dangers an unnecessarily long trial would engender.

75 Section 246 [3] of the 1999 Constitution as altered. 76 Section 239 [1] of the 1999 Constitution. 180

In contrast with other forms of disputes, say, land disputes, the nature of the interest of an employee in going to court against his employer is one that, is an interest in personam, not one that, is in rem or in perpetuity. Given the nature of interest in land claims, parties can afford to litigate for ages; not so regarding claims in employment. An employee just wants to know if, the termination of his employment is right or wrong. Even if he is given a wrong verdict, the verdict affords him the opportunity to reorder his life and move on. In any event, claims in, say, collective agreements are usually pressed for time as in Nigeria collective agreements generally have a lifespan of only two years. If a dispute over, or in respect of a collective agreement is to go through the appellate process, as we know it today, by the time it is finally resolved, the organization in question may be on their 10th collective agreement.77

It is the candid view of this writer that it is not necessary to pursue a constitutional amendment of Section 241 of the Constitution, if the sole objective is to deal with the issue of appeals against, the decisions of the National Industrial Court. The reasons are not far-fetched.

Firstly, constitutional amendment is time-consuming and rigorous. Secondly, and more importantly, is the fact that, the Constitution itself is very clear on the matter, as section 243

[3] of the Constitution as quoted above provides that, appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal as 'may be prescribed by an Act of the

77 Kanyip B.B.ibid 181

National Assembly'. Therefore, an Act of the National Assembly thereof, is all that is needed.78

It is also strongly recommended that, appeals on labour matters be left to terminate at the

Court of Appeal as is currently provided in the 1999 Constitution [as altered], in order to prevent a situation whereby labour and industrial related cases would be allowed to drag on endlessly to the detriment of the economy. From the foregoing, it is hereby recommended that a Labour Court of Appeal be established in Nigeria or a Labour Division of the Court of

Appeal of Nigeria be created to handle appeal cases from the NIC. It is further recommended that, the National Assembly should quickly prescribe by an Act for such appeals from the NIC to lie to the Court of Appeal.

78 See generally ,K. I. Amadi; A Position Paper Presented by The National Industrial Court of Nigeria in Response to The Invitation to a Public Hearing on Bills for Alteration of The Constitution(Section 241-243) of The Federal Republic of Nigeria, delivered on December 4,2013 at the NASS Complex, Abuja.

182

CHAPTER SEVEN GENERAL CONCLUSION

This chapter is the general summary and conclusion of the entire research carried out in this thesis. It deals with findings, recommendations and conclusion as they relate to the set objectives of this thesis.

The set objectives of this research are as follows:

i To understand how the NIC has developed over the years.

ii To highlight some of the challenges that faced the NIC which necessitated the

enactment of the NIC Act 2006 and appraise whether they were resolved by the

Act.

iii To identify the intention the Constitution Third Alteration Act 2010 and appraise

whether the intention was realized.

iv To identify the overall challenges of the NIC from the provisions of the NIC Act

2006 and the Constitution (Third) Alteration Act 2010 and to make

recommendations on how to overcome those challenges.

7.1 THE FIRST OBJECTIVE

The first objective of this research is to understand how the NIC has developed over the years.

This work traced the establishment of the NIC to the TDA (Trade Disputes Decree No 7 of

1976) and to the amendment of that Decree in 1992 by Decree No 47 of 1992, which excluded the jurisdiction of the ordinary courts in trade disputes matter.

183

7.1.1 FINDINGS:

(i) It was found out among others that the NIC under the TDA regime was not a

proper court in the real sense of it, in that parties could not approach it for the

resolution of their disputes except by prescription of the Honourable Minister of

the Ministry of Employment, Labour and productivity.

(ii) The NIC then was interwoven with the office of the Minister of the Ministry of

Employment, Labour and productivity; and further fused with the IAP to which

it acts as an appellate Court.

(iii) The jurisdiction and status of the court then generated a lot of controversies and

the court was regarded as an inferior court despite the express provision of the

TDA. Also it shared its jurisdiction with the High Courts.

The foregoing state of affairs necessitated calls for an entirely enabling law to the court. That gave rise to the enactment of NIC Act 2006 to address to those issues.

7.2 SECOND OBJECTIVE

The second set objective of this thesis is; to highlight some of the challenges that faced the NIC which necessitated the enactment of the NIC Act 2006 and relating to labour, employment, industrial relations, and other related matters appraise whether those challenges were resolved by the Act. The NIC Act 2006 was enacted to primarily to resolve the foregoing two issues of status and jurisdiction of the NIC. It was aimed at creating a superior court with exclusive civil jurisdiction to deal with labour matters, and to further institutionalize it, as a specialized court for quick, fair and efficient resolution of disputes.

184

7.2.1 FINDINGS

(i) The NIC Act 2006 took the NIC out of the TDA, and gave it a separate enabling

law.

(ii) The appointment of the President and the other Judges of the NIC are normalized

and done by the President of the Federal Republic of Nigeria1 on the

recommendation of the NJC (National Judicial Council)2 as is the case with all,

the other federal superior courts of record. (iii)The problem associated with

sitting under the TDA when the NIC, could not exercise its jurisdiction except

the President presided was resolved and the Court can competently sit with any

of the legally qualified judge presiding.3

(iii) The NIC now have the power to grant injunctive and declarative reliefs.4

(iv) Under the TDA, the NIC could only entertain group employment disputes.5 But

that has changed under the NIC Act 2006, as individuals can now approach the

Court with their grievances.6 Thus, the distinction between individual and group

employment disputes which held sway under the TDA is no longer an issue.7

1 Section 2(1)ibid 2 with the confirmation of the Senate in respect of the President of the NIC, see section 2(3)ibid 3 See section 21 (4) ibid. 4 By virtue of sections 16 – 19 ibid 5 See Chemical and Non-Metalic Products Senior Association v BCC (2005) 2 NLLR (Pt. 6) 446 at 474 -475. 6 See Godwin Tosanwumi v Gulf Agency and Shipping Nig. Ltd, Unreported Suit No. NIC/14/2006, which ruling was delivered on 14th of November, 2007. 7 Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine v Obafemi Awolowo University Teaching Hospital complex Management Board, in Re: Medical and Dental Council of Nigeria and Nigeria Medical Association, Unreported Suit No. NIC/8/2006 delivered on 22 May, 2007, see also K. I. Amadi(J) in NURTW v Alhaji Mugisu Akinpelu and Ors., the unreported Suit No. NICN/LA/424/2013 ruling delivered on February 12,2014. 185

(v) Before the coming into force of the NIC Act 2006, and in view of the definition

of the term, “trade dispute” in section 47(1) of the TDA, the NIC had held that,

only registered trade unions, had the right to come before it on behalf of workers.

As a result, associations that were not registered as trade unions, but had the

capacity to sue and be sued were not entertained at the NIC.8

(vi) Also, the NIC now has the jurisdiction to grant an order to restrain any

professional body, association or person from taking part in a strike or any

industrial action. This is in view of the fact that, section 7 is couched in a general

term as it relates to “any person or body.”9

(vii) Before the passage of the NIC Act 2006, parties to a suit before the IAP were not

allowed access to the decision or award of the Panel in respect of their case. The

decision or award of the IAP was disclosed to only the Minister of Labour, who

had the right to now disclose it to the parties, and it was felt that this practice did

not quite accord with the rules of natural justice, and fair hearing. That is no

longer the position, as any of the parties in exercise of his right of appeal

provided by the NIC Act 200610 is entitled to obtain a copy of the records of the

arbitral proceedings, and the award from the arbitral tribunal.11

8 A typical example of the application of this rule is shown in the case of Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions and Ors v Federal Ministry of Health and Anor. Unreported Suit No. NIC/12/2000 where the NIC had turned out professional associations in the health sector that were not registered as trade unions from further participating in the case in the Court. See generally Idornigie Paul Obo; The National Industrial Court of Nigeria: Analysis of Powers, Cases and Jurisdiction,(2013)NJLIR Vol.7 No.2 9 section 7(1)(b)ibid. 10 Section 7(4)ibid 11 Section 7(5)ibid 186

(viii) Furthermore in its bid to institutionalized the NIC , as a court for quick, fair and

efficient resolution of disputes relating to labour, employment, industrial

relations, and other related matters the Act made special provisions for as

follows:

(i) By section 12(2) the NIC:

(a) may regulate its procedure and proceedings as it thinks fit; and

(b) shall be bound by the Evidence Act but may depart from it in the

interest of justice. The fore going provisions are made to avoid the

effects of technicality and to ensure quick dispensation of

justice.12

(xix) Besides, empowering the NIC, to establish an Alternative Disputes Resolution

centre within the court premises, section 20 of the NIC Act 2006, provides that:

"In any proceedings in the Court, the Court may promote reconciliation among

the parties thereto and encourage and facilitate the amicable settlement

thereof".13

Thus in the absence of an Alternative Dispute Resolution Centre, which has not

been established, the NIC relies on this section to facilitate14 amicable dispute

resolution of cases before it.15

12 See Blessing Ifeanyi Okpoko v Zenith Bank PLC in Unreported suit No NICN/LA /167/13 ruling delivered on March 3, 2014 and also Mashood Ilupegu v PZ Cussons Nig PLC, Unreported Suit No.NICN/LA/406/12 delivered on April 29,2014 13 See Morocco-Clarke Ayodele; The Concept of the Multi-Door Courthouse in Nigeria: Lessons to be learnt by the National Industrial Court for the Proposed Court Annexed Alternative Dispute Resolution Centre, NJLIR Vol.6 No.2 (2012)

187

(x) By the provision of section 14 of the NIC Act 2006,the NIC has the powers to

grant all such remedies whatsoever, as any of the parties thereto may appear to

be entitled to in respect of any legal or equitable claim, properly brought forward

by the Court, irrespective of the fact that, the parties did not claim such remedy

so that, as far as possible, all matters in dispute between the parties may be

completely and finally determined and all multiplicity of legal proceedings

concerning any of those matters avoided. This was applied in the case of Dys

Trocca Valesesia & Co.Ltd V Alakija (supra)

(xi) Another special feature of the NIC Act 2006, is the fact that, collective

agreements reached through the process of collective bargaining are no longer

binding in honour only, but can now be litigated upon and enforceable by the

NIC.16

7.2.2 DRAWBACK

However, it was found out that despite the foregoing provisions and achievements, the NIC Act

2006 failed to realise its primary objective of establishing the status of the NIC as a superior court with exclusive civil jurisdiction in labour, employment, industrial relations, and other related matters.17 That gave impetus for the enactment of the Constitution (Third) Alteration Act

2010.

15 Dys Trocca Valesesia & Co. Ltd v Alakija (Unreported) Suit No. NICN/LA/319/201 delivered on May 19,2014. 16 7(1)(c)(i)ibid and section254C of the 1999 Constitution as amended 17 The National Union of Electricity Employees and 1 Or V. Bureau of Public Enterprises(supra)

188

7.3 THIRD OBJECTIVE

The third objective of this thesis is to identify the intention the Constitution Third Alteration

Act 2010 and appraise whether the intention was realized. This research identified the intentions of the Constitution Third Alteration Act 2010 as not only to normalize the status of the NIC by constitutionally establishing the Court as a superior court of record, but also to ensure that the further objective of the NIC Act 2006 in institutionalizing the NIC as a specialized court with exclusive civil jurisdiction over labour, employment, industrial relations, and other related matters is achieved.

7.3.1 FINDINGS

In respect of this objective this research found out that:

(i) The Constitution Third Alteration Act 2010 Act achieved its primary

objective of constitutionally establishing the NIC as a superior court of

record.

(ii) That in order to ensure that the further objective of the NIC Act 2006 in

institutionalizing the NIC as a fast, efficient specialized court over labour

matters is realized, the Constitution (Third) Alteration Act 2010

repealed out rightly eleven sections, and amended twelve other sections

of the aforesaid NIC Act 2006.

(iii) That the Constitution (Third) Alteration Act 2010 further expanded and

enlarged the jurisdiction of the NIC beyond the scope and provisions of

the NIC Act 2006 by clothing the NIC with jurisdiction over,

International Conventions, Treaties and Protocols Relating to Industrial 189

Relations18 and Workplace Child abuse, human trafficking, National

minimum wage, Discrimination at work place, Sexual harassment,

International Best Labour Practices and Standards19, Unfair labour

practices and Free trade zone

(iv) That there are no specific laws or legislations in respect of Discrimination

at work place, Sexual harassment, and Unfair labour practices being news

issues upon which jurisdiction has been granted to the NIC by the

Constitution (Third) Alteration Act 2010.

7.4. FOURTH OBJECTIVE

The fourth and last objective of this thesis is to identify the overall challenges of the NIC from the provisions of the NIC Act 2006 and the Constitution (Third) Alteration Act 2010 and to make recommendations on how to overcome those challenges.

7.4.1 CHALLENGES

From the analysis of the NIC Act 2006, and the Constitution Third Alteration Act 2010 in this thesis, the following challenges among others were found:

(1) The current provision in the NIC Act 2006 that, the Court shall be constituted at

least by 13(thirteen) judges, inclusive of the President of the Court, as a

minimum number of judges at all times is arguably inadequate, considering the

18 The Court has begun to set precedents on this aspect of its jurisdiction by delivering judgments based on it. Some of these judgments have been roundly applauded by the ILO See Newsletter on International labour Law for Judges, Lawyers and Legal Educators at bhttp://www.itcilo.org/en/uploads/20111202144537144.pdf/atdownload/file, See also the Hon. Attorney-General of the Federation v National Association of Government Medical Practitioners & Dr. J.N. Chukwuani, unreported Suit No. NIC/EN/16/2010 delivered on 20 June 2011, and Mrs. Folarin Oreka Maiya v The Incorporated Trustees of Clinton Health Access Initiative, Nigeria & Ors, unreported Suit No. NIC/ABJ/13/2011 delivered on 11 November, 2011. In these cases various conventions were cited and upheld. 19 See section 7(6) ibid and section 254C (1)(h) of the 1999 Constitution as altered. 190

fact that, Nigeria has 36 (thirty six) states and the Federal Capital Territory,

Abuja.

(2) The practice of remitting every case for transfer to the President of the Court for

re-assignment is with due respect circuitous and time wasting.

(3) The jurisdiction granted the NIC by section 7(1)(a) of the NIC Act 2006, relating

to - labour, including trade unions and industrial relations; has been interpreted

to be appellate, in view of the provisions of section 7(3) of the said NIC Act

2006.20 The end point, by those decisions is that, no trade dispute can be handled

by the NIC, unless on appeal after, exhausting the processes already laid down

under Part 1 of the TDA.

(4) Incidental to the above is the position of the NIC that, the processes enumerated

in sections 1–18 of the TDA, must be followed religiously, before the

jurisdiction of the Court can be activated in trade disputes matter. In other words,

the matter should pass through the IAP where required to do so, under the TDA.

(5) Since the IAP, has no jurisdiction over the matters stated in section 7(1)(a) of

the NIC Act 2006, the 'arbitral tribunal' from which, an appeal shall lie as of

right to the NIC, as provided in section 7(4) is ambiguous and, or vague.

(6) The IAP, has no statutory provision for the enforcement of its award by virtue of

the fact that, section 20 of the TDA, was repealed by the NIC Act 2006. Worst

still, the NIC also has no provision for the enforcement of the IAP awards.

20 Ogunyale & ors. v Globacom Nig. Ltd & ors(supra), Asuzu & ors. v Ajewole & ors,(supra), Maritime Workers Union of Nigeria and ors v NLC & ors(supra) 191

(7) The provision in section 243 [3] of the Constitution that, appeal shall lie from the

decisions of the National Industrial Court to the Court of Appeal as may be

prescribed by an Act of the National Assembly, has in the absence of such

prescription by the National Assembly, created the erroneous impression that, the

NIC is a one off court, whose decision is final and not appealable.

7.4.2 RECOMMENDATIONS

From the identified challenges in this research the following recommendations are made:

(1) It is recommended that, the National Assembly should make a prescription as

provided by the Constitution (Third) Alteration Act 201021 for the NIC to be

constituted of the President and at least not less than 37 other Judges at all times,

to reflect the 36 states and the Federal Capital Territory Abuja. There should be

at least one judicial division of the NIC in every state in Nigeria, and in the

Federal Capital Territory Abuja, in order to, actualize the focus of the court in

bringing justice to the door steps of all Nigerians.

(2) That an objective standard should be set to determine when, a person can be said

to have considerable knowledge, and experience in the law, and practice of

industrial relations, and employment to qualify for appointment as a judge of the

NIC.

(3) That Parts 1 and 3 of the TDA should be repealed.

21 Section 254A (2) (b) provides that the NIC shall consist of such number of Judges as may be prescribed by an act of the National Assembly. 192

(4) The IAP as an organ of Industrial Disputes Resolution has outlived its

usefulness, and an aberration to the concept of natural justice in matters

involving the government as a party, and therefore, should be scrapped. So that

trade unions can approach the NIC , as a court with original jurisdiction in

handling trade disputes, without the need to first of all going through the

prescribed methods of mediation, conciliation and arbitration under the TDA.

(5) The NIC for now, pending the repeal of the TDA, should be proactive and over

rule itself in the cases of AUPCTRE v. FCDA(supra), Ogunyale & Ors V

Globacom Nig. Ltd & ors (supra) and Asuzu & Ors V Ajewole & Ors (supra) by

hearing trade disputes matter brought before it, in its original jurisdiction. Also,

to use the earliest opportunity henceforth, to reverse itself by holding that the

provision of section 7(3) as being optional to parties, to either approach the NIC

directly or go through the processes of Part 1 of the TDA, as they so wish.

(6) That an amendment be effected on section 46 of the Constitution and on the

Fundamental Rights Enforcement Procedure Rules 2009, to expressly provide

the NIC as one of the courts for the ventilation of issues in respect of chapter

four, of the Constitution as they relate to labour and employment matters.

(7) It is recommended that the terms 'organizational dispute' and 'labour dispute'

which were actually used by the NIC Act 2006, in conferring jurisdiction on the

NIC, be defined or given contextual meanings

193

(8) The National Assembly should quickly prescribe for appeal to lie from the

decisions of the NIC to the Court of Appeal as provided by section 243(3) of the

1999 Constitution, as amended by the Constitution Third Alteration Act 2010.

(9) Furthermore, to obviate the issue of delay in the final determination of the labour

cases on appeal, it is further recommended that, a Labour Division of the Court

of Appeal be established as in countries like France, Israel and South Africa.

(10) That the National Assembly should enact specific laws or legislations in respect

of Discrimination at work place, Sexual harassment, and Unfair labour practices

being news issues upon which jurisdiction has been granted to the NIC by the

Constitution (Third) Alteration Act 2010.

7.5 ADDITION TO THE BODY OF KNOWLEDGE.

i) This thesis has shown that, the NIC is not only an adjudicatory court, but also a

participatory Court in the administration of justice in that, the court does not only

promote settlement of disputes, but takes positive and active steps to “facilitate”

amicable settlement of disputes.

ii) Also the rule of practice that, a court does not grant to the parties a relief not

claimed, does not apply fully at the NIC in that, the court is empowered to grant

to the parties, in any case or matter, any reliefs whether claimed, or not which, in

the opinion of the court, will finally determine the issues in controversy between

the parties.

194

7.3. CONCLUSION

This thesis examined and reviewed the provisions of the National Industrial Court Act 2006, and the Constitution (Third) Alteration Act 2010. Also reviewed are some provisions of the

National Industrial Court Rules 2007, which Rules were made pursuant to section 36 of the NIC

Act 2006. At the end, this thesis tried to bring out the intentions and set objectives of the reviewed laws including their salient provisions. It further identified some loopholes or challenges to the realization of the said set objectives of the reviewed laws thus filling the gap in knowledge thereof. Finally, it made recommendations which, if implemented, will ensure that the NIC will fully realize its objective as an institutionalized special court for quick, and efficient resolution of disputes relating to labour, employment, industrial relations, and other related matters as envisaged by the NIC Act 2006 Act and Constitution (Third) Alteration Act

2010.

195

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Johri, C. K; Labour Law in India (The Netherlands: Kluwer Law International, 2012)

Hardy, S; Labour Law in Great Britain, 5th Revised Edition (The Netherlands: Kluwer Law International, 2012)

Kumar, H. L; Law Relating to Dismissal Discharge & Retrenchment, 3rd Edition (New Delhi: Universal Law Publishing Co. Pvt Ltd., 2010)

Kumar, H. L; Law Relating to Disciplinary Proceedings in Industries, 6th Edition (New Delhi: Universal Law Publishing Co. Pvt. Ltd, 2009)

Kumar, H. L; Law Relating to Leave Holidays and Absenteeism in Industries, 9th Edition (New Delhi: Universal Law Publishing Co. Pvt. Ltd, 2010)

Misra S. N. & Misrasik Labour & Industrial Law (Industrial Law Publications (2007) 23rd edition Allahabaid, India

Morris, G. S. And Archer, T. J; Collective Labour Law (Oregun: Hart Publishing, 2000)

Nwagbara, C. Determination of Contract of Employment and Remedies for Wrongful Dismissal (Nigeria: Tail Publishers, 2000)

Ogbuinya, O. F; Understanding the Concept of Jurisdiction in the Nigeria Legal System (Enugu: Snaap Press Ltd. 2008)

Odunaiya, V. A; Law and Practice of Industrial Relations in Nigeria (Lagos: Pass field Publishers Ltd. 2006)

Obibei, F. F; Practice Notes for Trial Lawyers, (2nd Edition (Port-Harcourt: Pearl Publishers, 2012)

Offornze, D. A; and Abba, P. U; The National Industrial Court of Nigeria (UK: Wildfire Publishing House, 2013)

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Obabi; O. K; Case Law Annotation of the Public Service Rules in Nigeria (Benin City: Evergreen Overseas Publications Ltd, 2013)

Obilade A. O. The Nigerian Legal System: Sweet & Maxwh London

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Tekle, T; Labour Law and Worker Protection in Developing countries (Oxford Hart Publishing, 2010)

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(B) JOURNAL ARTICLES

Aborishade F., “Reflection on the Pension Reform Act (2004)”; NJLIR Vol. 1 No. 2 (2007). pp. 1-24.

198

Amucheazi O.D & Dr. Ama-Oji Lizzy (Mrs.)., “Resolution of Labour Disputes in Nigeria

” NJLIR Vol 3 No 3 (2009) pp 1-19.

Amucheazi O.D & Dr. Ama-Oji Lizzy (Mrs.)., “The Status of the National Industrial Court Under the 1999 Constitution”., NJLIR Vol 2 No 3 (2008) pp 1-19.

Amachree G., “ Recent Trend in Child Labour and Child Trafficking in Nigeria”; NJLIR Vol. 6 No. 2 (July 2012). Pp. 26-36.

Adewunmi F., “Protecting Workers Rights in the Export Processing Zones(EPZs)Challenges

for Labour Movement” NJLIR Vol. 1 No 3 (2007), pp 77-86.

Adewunmi A.A., “National Industrial Court and the Prospects of Efficient Industrial Conflict Resolution in Nigeria”, NJLIR Vol 7No. 3 (2013), pp. 1-19.

Agbaje Fred., “The Legal and Constitutional Anatomy of the New Industrial Court Act, 2006”,

NJLIR Vol 1No.1(2007), pp.73-76.

Amucheazi O.D &Oji E.A.,“The Status of the National Industrial Court Under the

1999 Constitution” NJLIR Vol. 2No 3(2008), pp.1-19

Amadi K.I., “Reflections on the Status of the National Industrial Court under the

Constitution (Third Alteration) Act, 2010”NJLIR Vol 5 No. 1 (2011),pp 1

Atiliola Bimbo., “National Industrial Court Of Nigeria and Exclusive Jurisdiction on Labour, Trade Union and Employment Related Matters Under the Third Alteration Act: A Review of N.U.T, Niger State v C.O.S.S.T Niger State”. NJLIR Vol. 6 No. 2 (July 2012). Pp. 1-6.

Atiliola Bimbo; Adetunji Mayowa & Dugeri Michael., “Powers and Jurisdiction of the National Industrial Court of Nigeria Under the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010: A case for its Retention” NJLIR Vol. 6 No. 3 (2012) pp.1-37.

Atilola Bimbo., “Transfer of Cases Between High Courts and National Industrial

Atilola B &Morocco- Clarke A., “ National Industrial Court and Jurisdiction over

International Labour Treaties Under the Third Alteration Act”,NJLIR Vol 5 No. 4 (2011),pp. 1-6.

199

Arowosegbe O.O., “The National Industrial Court and the Quest for Industrial

Harmony and Sustainable Economic Growth and Development in Nigeria”, NJLIR Vol 5 No. 4 (2011), pp. 7-41.

Anyebe P.A. Varying the Approach Towards Eradicating Child Labour in Nigeria:

An International Solution to a National Problem”, NJLIR Vol 1No.1(2007), pp.145-160.

“An Examination of the Jurisdiction of the National Industrial Court of Nigeria” NJLIR Vol.2 No. 4 (2008). Pp. 7-34.

Chiafor Amaechi B.,“ Reflection on the Constitutionality of Records Status and Exclusive

Jurisdiction Clauses of the NIC Act, 2006”, NJLIR Vol. 1 No 3 (2007), pp29-46.

Court of Nigeria: A Review of ECHELUNKWO JOHN & ORS V IGBO-ETITI LOCAL

GOVT”, NJLIR Vol 7 No. 1 (2013),pp. 1-12.

Dauda Y.A., “Employment of Independent Arbitrators in the Management of

Trade Disputes and Industrial Crisis in Nigeria”, NJLIR Vol 1No.1(2007), pp.26- 44.

Danesi R.A., “The Trade Union (Amendment) Act, 2005 and Labour Reform in

Nigeria: Legal Implications and Challenges”, NJLIR Vol 1No.1(2007), pp.95-115.

Dauda Benedicta., “Gender Discrimination in Employment; An Appraisal” NJLIRVol. 1 No. 2 (2007). pp. 43-53.

Ejere O.D., “Further Reflections on the Constitutionality of National Industrial Court (NIC) Act, 2006” NJLIR Vol. 1 No 4 (2007), pp. 59- 74.

Ejere Dennis. O., “The High Court’s Jurisdiction to hear and Determine Inter or Intra Union Dispute is not Completely Ousted by the Trade Disputes Act AS Amended and the 2006 NIC Act.” NJLIR Vol. 1 No. 2 (2007). pp. 56- 72.

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Ejere O.D., “Legal Implications of the Constitution (Third Alteration) Act, 2010 on the

Jurisdiction of the National Industrial Court of Nigeria” NJLIR Vol 7 No. 4 (2013), pp. 40-48.

Nwagbogu G.M., “Repositioning the National Industrial Court for Industrial Relations Facelift”, NJLIR Vol.7 No. 2 (June 2013) pp 21-34.

Nigeria; An Unresolved Issues” NJLIR Vol. 1 No. 2 (2007). pp. 25-42.

Onyenweife Paul Henry., “The Jurisdiction of the National Industrial Court of Nigeria Over Undomesticated Treaties Ratified by Nigeria”. NJLIR Vol. 6 No. 3 (2012) pp.38-42. 2012). Pp. 7-25.

Okene O.V.C., “Political Strikes and Limits of Legitimate Industrial Action; Policy Issues, Emerging Challenges and way- Foward” NJLIR Vol.4 No. 3 (October 2010) pp. 16-40.

Obiozor. C.A P.hd., “ Settlement of Trade Disputes in Nigeria - Reflections on Section 1 (3)(a) of the National Industrial Court Act, 2006” NJLIR Vol.4 No. 3 (October 2010) pp. 69-78.

Otuturu G.G., “The Legal Status of ILO Conventions in Nigeria: A Note on MHWUN V Minister of Labour & Ors”, NJLIR Vol 2 No 3 (2008) pp 20-30.

Okene O.V.C., “The devil is in the Detail: The Trade Union Law (Amendment) Act 2005 in International Perspective” NJLIR Vol 2 No 3 (2008) pp 31-63.

Obi P.O., “The Concept and Purpose of International Labour Standards”, NJLIR Vol 2 No 3 (2008) pp 64-86.

Ojo Gbenga., “Legal Anatomy of the National Industrial Court Act 2006: The

Need for Legislative Re-thinking”, Nigerian Journal of Labour Law & Industrial Relations Vol. 2 No 2 (2008), pp 1-24.

Odey S.A. &Young A.E., “An appraisal of the Trade Unions (Amendment) Act

2005: Implications & Challenges for Effective Bargaining and Industrial Conflict Resolution”, NJLIR Vol. 2 No 2 (2008), pp 81-91.

201

Otuturu. G.G., “The Legal Status of ILO Conventions in Nigeria: A Note on

MHWUM v Minister of Labour&Ors”, NJLIRVol. 2 No 3 (2008), pp.20-30.

Okene O.V.C., “The Devil is in the Detail: The Trade Union Law (Amendment)

Act 2005 in International Perspective” NJLIRVol. 2 No. 3 (2008),pp 31-63.

Okonkwo P.O., “The Concept and Purpose of International Labour Standards” NJLIR Vol. 2No 3 (2008), pp. 64-86.

Otuturu. G.G.,“Legal Consequences of Strikes on the Contracts of Employment of

Workers in Nigeria” NJLIRVol.5No 2 (2011), pp 7.

Otuturu. G.G., “The Rights of Workers to Strike in Nigeria: A Critical Appraisal”

NJLIR Vol 3No. 2 (2009), pp. 37-48.

Okene O.V.C., “The Disputes of Rights Versus The Disputes of Interests’ Dichotomy in Labour Law: A Note on Nigerian Labour Law”, NJLIR Vol 3 No. 4 (2009), pp. 32-42.

Okonkwo P.O., “ Implementation of International Labour Standards”, NJLIR Vol 3

No. 4 (2009),pp. 81-95.

Obijiaku I.O., “National Industrial Court and Jurisdiction Under the Constitution

(Third Alteration) Act, 2010”,NJLIR Vol 7 No. 1(2013),pp.93-103.

Onyeweife P.H., “Reflections on the Finality of the Appellate Jurisdiction of the

Court of Appeal over Appeals Arising from Civil Jurisdiction of the National Industrial Court”, NJLIR Vol 7 No. 3 (2013), pp. 20- 23.

Professor Idornigie P.O., “The National Industrial Court of Nigeria: Analysis of Power, Cases and Jurisdiction”, NJLIR Vol.7 No. 2 (June 2013) pp 1- 20.

Worugji Eme I.N, Archibong J.A & Alobo Eja., “The NIC Act (2006) and the Jurisdictional Conflict in the Adjudicatory Settlement of Labour Disputes in

Aborishade, F; “Reflections on Employees’ Compensation Act, 2010” in B. Atilola,

202

Themes on the New Employees’ Compensation Act, (Lagos: hybrid Consult, 2013), 23 – 55

Adeogun, A. A; “The Legal Framework of Collective Bargaining in Nigeria” in: A. Otobo and M. Omole (ed) Readings in Industrial Relations in Nigeria. (Lagos: Malthouse Press Ltd., 1987) 90 – 103

Animashaun, O; “Compensation for Death, Injury and Disease under the Employees’ Compensation Act, 2010” in B Atilola, Themes on the New Employees’ Compensation Act, 2010 (Lagos: Hybrid Consult, 2013) 127 – 137

Atilola, B; “Right of Appeal under the Employees’ Compensation Act, 2010” in B. Atilola, Themes on the New Employees’ Compensation Act, 2010 (Lagos: Hypbrid Consult, 2013) 101 – 105

Atilola, B; “Labour Act” in B. Atilola, Annotated Nigeria Labour Legislation (Lagos: Hyprid Consult, 2008) 87 – 166

Danesi, R. A; “Trade Disputes Act” in A. Atitola Annotated Nigerian Labour Legislation (Lagos: Hybrid Consult, 2008). 278 -333.

Ejere, D. O; “Pension Reform Act” in A. Atilola Annotated Nigerian Labour Legislation (Lagos: Hybrid Consult, 2008) 204 – 277

Esan, R.S. M; “Legal Framework of Industrial Relations in A. Otobo and M. Omole Nigeria” (Lagos: Malthouse Press Ltd., 1987) 1 – 10

Iwuiji, E. C; “Settlement of Trade Disputes” in: A. Otobo and M. Omole (ed) Readings in Industrial Relations in Nigeria (Lagos: Malthouse Press Limited, 1987) 205 – 214.

Ramm, T; “Workers’ Participation; the Representation of Labour and Special Labour Courts” In B. Hepple, the making of Labour Law in Europe. (London: Mansell Publishing Limited, 1986) 242 – 276.

Wuruiji, I. N. E; “National Industrial Court Act” in: A Atitola Annotated Nigerian Labour Legislation (Lagos: Hyprid Consult, 2008) 167 – 203

(D) NEWSPAPER ARTICLES Abidogun Taiwo NIC: The Challenge of Forum in gGrievance/Dispute Resolution (3) (Vanguard Friday, July 25, 2008)

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Abidogun Taiwo Only NIC Can Assume Jurisdiction on Labour Disputes (The Punch, Monday, January 21, 2008 pg. 71) Adejumo Babatunde National Industrial Court has exclusive Jurisdiction on Labour Matters.(The Guardian , Tuesday, January 9, 2007) Adejumo Babatunde National Industrial Court as a Dispute Resolution Mechanism (Guardian Tuesday, June2 2009 69). Adejumo Babatunde NIC Can Resolve All Industrial, Labour Matters (THISDAY Friday June 19, 2009) Adejumo Babatunde National Industrial Court: Our journey from obscurity (Daily Sun, Wednesday June 24, 2009). Awomolo Adegboyega Industrial Court Act 2006: A Progressive Development (The Guardian, Tuesday, July 25, 2006.) Igwe J.U.K The Role of Investment and Securities Tribunal in Implementing the Pension Reforms Act 2004 (The Guardian, Tuesday, September 6, 2005) Igwe J. U. K. Efficacy of Trade Disputes Settlement in Nigeria (4) (The Guardian, Tuesday May 2, 2000) Igbintade Wale Confusion Trade Industrial Court Decisions as Appeals Pile Up (National Mirror Tuesday, July 9, 2013) Kanyip Benedict National Industrial Court and Resolution of Labour disputes (The Punch, Monday, December 31, 2007 Pg. 59) Omofoye Tunji (Osogbi) Industrial Court Seeks Best Practices in Dispute Resolution ( The Guardian, Tuesday, May 27, 2008 pg. 59) (E) UNPUBLISHED PAPERS

Adejumo B.A; The National Industrial Court of Nigeria: Past, Present and Future; being a paper delivered at The Refresher Course Organised for Judicial Officers of between 3-5 years post appointment by the National Judicial Institute, Abuja on March 24, 2011.

Ibrahim Awaal; The Effect of the Application of International Best Practices on the Common Law Principle of Master and Servant in Employment Relationships. Being a paper presented at the Annual Conference of the NBA Section on Legal Practice held at Makurdi Benue State, November 18th-20th 2013.

Kanyip B.B; The National Industrial Court :The Journey so Far., being text of a paper delivered at 2008 Annual / Delegates, Conference of the Nigerian Bar Association which held from 23rd- 28th August 2008,at the International Conference Centre Abuja.

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Federal Labor Court of Germany available at http://en.wikipedia.org/wiki/ visited on October 14, 2013

International Labour Organisation available at www.itclo.org accessed on November 17, 2013

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