Given the dynamics of employment interrelationship and the challenges of ever expanding global society, the need to establish a specialized Court to tackle disputes connected with labour and industrial relations has become poignant. This is because labour and industrial disputes are economic issues which need expeditious dispensation and it was felt that the regular Courts which were already saddled with enough duties should be spared the additional duties of handling labour and industrial cases.
It was also felt that the procedures at the non-specialized Courts were 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 procedures and delays. Therefore, such nations as Trinidad & Tobago, America and India have seen wisdom in establishing specialized Courts to handle labour and industrial disputes. Nigeria has also found it necessary to establish the National Industrial Court (hereinafter called NIC) - a specialized Court - to handle labour and trade dispute matters. The scope of this paper is to examine the past, present and future of the National Industrial Court. Thus, we are going to make a historical legal analysis of the past and the present of the NIC, and a prognostication into its future.
Historically, the (NIC) was established in 1976 pursuant to the Trade Disputes Decree No. 7 of that year, 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 modeled on the non-interventionist and voluntary model of the British system. The statutory mechanism for the settlement of trade disputes was found in the Trade Disputes (Arbitration and Enquiry) Act. 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 they would surrender to the jurisdiction of the Minister.
Thus the Minister could not compel the parties to accept his intervention, but 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.
The declaration of hostilities 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 No. 21 of 1968 was enacted and it suspended the Trade Disputes (Arbitration and Inquiry) Act.
The Act 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 that the employers and the employees became aware of the existence of a dispute to the time that the minister was notified.
At this juncture, it is pertinent to make some observations on the NIC under the Trade Disputes Act 1976 (TDA) as amended by the Trade Disputes (Amendment) Act 1925. As a product of an interventionist mechanism in industrial and trade disputes arena, the NIC was structured in a regimented disputes resolution regime under the firm control of the Minister of Labour. Thus, the NIC at inception was dogged with a lot of problems mainly traceable to the enabling Act. And these problems impacted negatively on the ability of the Court to effectively perform its duties. The identified shortcomings are summarized below:
i. The non-inclusion of the Court in both the 1979 and 1999 Constitutions was an albatross on the effective exercise of its jurisdiction as the Court was not afforded the needed respect by litigants and counsel. Even though, section 19(2) of the TDA 1990 (now repealed) which was inserted by Decree 47 of 1992 provided that the NIC shall be a Superior Court of Record. Despite this lawyers disregarded these provisions by asking the Federal High Court to judicially review decisions reached at the NIC in a number of cases. For example, SGS Inspection Services (Nigeria) Limited v. Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN)6, is one of such cases
ii The fact that only very few cases which deals with interpretation of agreement could come to the court directly was itself a problem. To confirm this Rule 13 of the National Industrial Court Rules, CAP T.8, LFN 2004 provides that “a trade dispute shall be commenced by reference from the Minister” This was equally against the principle of separation of powers as enshrined in the Constitution of the Federal Republic of Nigeria. In effect, NIC was the only Court in the nation that litigants could not on their own volition activate its jurisdiction. The referral requirement also meant that cases transferred to the Court by other courts could not be heard until clearance had been obtained from the Minister. For example, the NIC had to decline original jurisdiction in the case of Incorporated Trustees of Independent Petroleum Association V. Alhaji Ali Abdulrahman Himma & 2 Ors7 on the ground that the dispute resolution mechanism set out in Part 1 of the TDA had to be fulfilled before the Court could assume jurisdiction
iii. The President of the NIC was required to preside over all the sittings of the Court by virtue of section 19(4) of the TDA 1990 (now repealed). The practical effect of this is that adjudication on cases was totally at the willed and unwilled discretion of the President. This means whenever for any reason the President was unable to sit, even though the Court could form quorum, the case had to 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.
iv There was also the problem of dual procedures for the appointment of the President and other Judges of the Court. The NIC has had the misfortune of being the only Court in the country with dual control over the mode of appointment of its judges. By virtue of sections 19 and 25 of the TDA, the President of Nigeria appoints its President on the recommendation of the Federal Judicial Service Commission while the other members were appointed by the President of Nigeria on the recommendation of the of the Minister of Labour. This appears to be a negation of the principle of separation of powers as enshrined in the 1999 Constitution
v There was also the problem as to the extent and scope of the subject-matter jurisdiction of the NIC. Even though, the Decree No. 47 of 1992 seemed to have brought within the purview of the NIC inter and intra union disputes, the courts have held that for the NIC to have jurisdiction on inter and intra union disputes, the disputes must qualify as trade disputed. The equation of inter and intra union disputes with trade disputes as was done in this case meant that the intendment of Decree No. 47 of 1992 had been negated thus meaning that some of the cases meant for the NIC could not be entertained there.
vi Case law also created a lot of problems for the court. For example, Kalango V. Dokubo seemed to hold that jurisdiction can only be conferred on a court by sections expressly marked “jurisdiction” in the enabling statute. In arriving at its decision declaring sections 1A and 19 of the TDA invalid and holding that inter and intra union disputes must qualify as trade disputes for NIC to have jurisdiction on them, the Court of Appeal based its decision, amongst others, on the fact that inter and intra union disputes were not listed in section 20 of the TDA, the only section expressly marked at the side note with the magic words “jurisdiction of Court”.
vii The third problem created by Kalango v. Dokubo supra is that it further reiterated that NIC could not grant declaratory and injunctive reliefs. In arriving at this decision it relied on the case of Western Steel Works Ltd V. Iron and & Steel Workers Union of Nigeria. The implication is that although, the TDA (repealed) established the Court as a superior court, it lacked the essential powers of a superior court as it could no grant declarative or injunctive reliefs.
viii. The cumulative effect of the confusion created as to the scope of jurisdiction of the NIC was that several courts at the same time had concurrent jurisdiction on the subject matters on which NIC was supposed to have exclusive jurisdiction. Therefore, the 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. The resultant effect was conflicting decisions, absence of clarity and uniformity in the decisions of the various courts on virtually the same issue. For example, at the High Courts, collective agreements were only binding if incorporated into the conditions of service of the employees, while at the NIC they were legally binding. Consequently, the culture of forum shopping by litigants was unwittingly created. This totally stalled the ideals for which the NIC was created in the first instance.
A good reference point is FGN v. Oshiohmole14. The case was commenced at the FCT high Court and it held that the Nigerian Labour Congress has power to call workers 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 matter under item 34 of the Constitution i.e. 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 section 251 of the Constitution held that it lacked jurisdiction. 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. And it therefore became imperative for the National Assembly to find solution to the problem in consonance with section 4(2) of the Constitution. This informed the National Assembly to vest the Court with exclusive jurisdiction.
A new dawn came for the NIC on the 4th of March, 2011 when the President of the Federal Republic of Nigeria assented to the Constitution (Third Alteration) Bill, 2010 which amended the 1999 Constitution to include the NIC in the relevant sections of the Constitution. A new section 254A was inserted into the Constitution and it reads thus:
254A-(1) there shall be a National Industrial Court of Nigeria. (2) The National Industrial Court shall consist of: (a) President of the National Industrial Court; and (b) such number of judges of the National Industrial Court as may be prescribed by an Act of the National Assembly. By the provision of section254A (1) & (2) a new court called the National Industrial Court of Nigeria (NICN) is created to replace the former National Industrial Court. And the process of creating the Court directly in the Constitution is completed by the amendment of section 6 of the Constitution which lists the superior courts of record to include the National Industrial Court of Nigeria in its new sub-section 5 (cc). Likewise sections 84(4), 240,243, 287, 289, 292, 294, 295, 316, 318, the Third Schedule to the Constitution and the Seventh Schedule to the Constitution were also altered to reflect the firm standing of the National Industrial Court of Nigeria as a Court created directly by the Constitution like other superior courts of record in Nigeria.
The NICN is therefore now a member of the Federal Judicial Service Commission and the National Judicial Council – see the new paragraphs 12 (dd) and 20 (ee) of the Third Schedule to the 1999 Constitution. Thus, the controversy about the status of the court as to whether it is a superior court of record or not has been finally laid to rest. It is no longer in doubt now that the court is a superior court of record like other superior courts of record in Nigeria. There is no longer room for application for judicial review of the decisions of the NICN as it is now a superior court of record. We shall now examine the jurisdiction of the Court on the basis of subject-matter. The new section 254 C- (1) of the Constitution provides thus: “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 causes and matters.
1 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.
2 Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Workmen’s Compensations Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws.
3 Relating to or connected with the grant of any order restraining any person or 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.
4 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.
5 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 there from.
6 Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters.
7 Relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace.
8 Relating to, connected with or pertaining to the application or interpretation of international labour standard.
9 Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto 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.
Relating to or connected with trade disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, a judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto
1 Relating to: appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith 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 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.
Section 254(C)(6) CFRN (1999) as amended 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. Section254D- (1) provides further thus:
For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the National Industrial Court shall have all the powers of a High Court. Sub-section (2) of section 254D provides:
Notwithstanding sub-section (1) of this section, the National Assembly may by law, make provisions conferring upon the National Industrial Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the court to be more effective in exercising its jurisdiction”.
The new jurisdiction of the NICN is perhaps the widest and most elaborate jurisdiction conferred on any court in the Constitution. This is so as a result of the experience under the NICA 2006 when a lot of subject-matters of the jurisdiction granted the court were enmeshed in controversies as to their extent and consequently hampered from effective fruition. It is abundantly clear that the present approach has retained all the good innovations associated with the NICA, 2006 while it also tries to avoid the pitfalls associated with it. The couching of the present jurisdiction of the Court has created innovations to tackle the problems associated with the NICA, 2006 as enumerated under the sub-heading “Grey Areas” above.
Appointment of the President and other Judges of the NICN and the Powers of the Court Section 254B of the 1999 Constitution provides the procedure and modes of appointment of the President of the Court and other judges of the Court. It is pertinent to note that the requirements and the procedures are similar to those applicable to the members of the various High Courts created under the 1999 Constitution of the Federal Republic of Nigeria. There is the the additional requirement that such persons must have considerable experience and knowledge in the law and practice of industrial relations and employment in Nigeria. The appointing and disciplinary authorities are the same and likewise the conditions of service. It must be added that the Court has all the powers of a High Court by virtue of section 254D of the 1999 Constitution as amended. The President of the Court has the power to make rules for the practice and procedure of the Court by virtue of section254F of the 1999 Constitution as amended.
The very first of these innovations is in firmly making the court a superior court of record. The problem relating to taking cognizance of international best labour practices in arriving at decision by the court has been laid to rest as the Constitution now directly mandates the court to take cognizance of international best labour and industrial practices in arriving at decisions.
The NICN can now effectively apply or enforce an IAP award and other similar awards without any hindrance. The Court has now been expressly conferred with criminal jurisdiction on some matters such that the controversy surrounding the circuitous manner by which the Trade Union’s (Amendment) Act, 2005 conferred criminal jurisdiction on it and the attendant uncertainty has been removed.
The causes of inordinate delay in trial of cases associated with pre-2011 dispensation whereby lawyers were able to take advantage of the various loop-holes abounding as a result of the status problems have been removed such that the court is now put in a vantage position to realize the dreams of its founding fathers. The controversy on the finality of the decision of the National Industrial Court has been clarified as section 243 (3) of the Constitution provides that an appeal shall lie from the decision of the NICN to the Court of Appeal as may be prescribed by an Act of the National Assembly. And even when an Act is enacted dealing with a right of appeal on the decisions of NICN, the appeal shall be with the leave of the Court of Appeal.
The problem created when the Factory Act, 1990 and the Workmen Compensation Act, 1990 (now repealed) simultaneously conferred jurisdiction on occupational health and safety issues on both the Federal High Court and the State High Court respectively alongside the jurisdiction conferred on the same issues by section 7(1)(a)(ii) of the NICA,2006 and the attendant confusion has been effectively resolved. Section 254 C- (1) (b) of the 1999 Constitution (as amended) expressly makes the NICN the Court with jurisdiction on these issues.
In addition to the above, other innovations could be found in the new jurisdiction hitherto lacked by the Court now granted it. These are contained in sub-sections (b), (d) – (e), (g) and (i) and sub-section (j) (vii), (k), and (I)(ii) of section 254 C-(1) of the Constitution and section 254 C- (2) and (3) of the Constitution. They deal with issues ranging from fundamental rights provisions of the Constitution in relation to labour, national minimum wage, discrimination in workplace and sexual harassment at place of work, child labour and human trafficking, payment or non-payment of salaries, matters pertaining to application of any international convention or treaty which Nigeria has ratified and the power to establish ADR Centre.
The innovations under the current dispensation have as far as foresight could go taken care of all the hitherto problems confronting efficient functioning of the NIC. With this new vigour in place, the NICN is clearly poised to effectively assume its allotted place in the hierarchy of courts in Nigeria. However, this is not to say that there are no challenges to grapple with: innovations by their natures create new challenges.
It is certain that the NICN now has enormous burdens and responsibilities to shoulder given the very wide jurisdiction conferred on it. For it to be able to rise up to expectation, the following measures has been taken
1. The aggressive expansion of the court. As the jurisdiction of the court has been tremendously increased, the need arises to appoint more judges to handle the deluge of cases that are bound to ensue. More courts has been built to cover all the States of the Federation as the services of the court will now be needed dearly in all the states of the Federation in view of the subject-matters covered by the court’s jurisdiction, some of which are highly litigious matters. To complement the appointment of more judges, more supporting staff has also been appointed to service the additional Judges, and additional courts has been built across the state of the federation.
2. Establishment of Alternative Dispute Resolution Centre for Mediation and Reconciliation.
3. The Rules of the Court has been reviewed to accord with the present innovations. Court Rules 2017
4. Capacity building programmes for the staff of the court in order to acquaint them with the necessary skills needed to effectively assist the court to achieve its core establishment objectives.
5. There has been tremendous enlightenment campaigns to bring the court into the consciousness of the people. This is being done by organizing lectures involving stake-holders in the administration of justice particularly those connected with the subject-matters of the court.
6. Recently, the National Industrial Court of Nigeria Launched an official Mobile App for the Court which is one of the first kind in Africa, as this would help in opening up the Court to the public as directed by the Ag. Chief Justice of Nigeria, Hon. Justice Walter Onnoghen in one of his public speechees.
7. ICT digitalization of the judiciary in tandem with best global practices standard, hearing notification and case filling is being done electronically different from the traditional ways of doing it in other courts.