DR. MRS REGINA EZE-VS- FEDERAL POLYTECHNIC, OHODO, ENUGU STATE & 3 ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: FRIDAY DECEMBER 19, 2025 SUIT NO: NICN/EN/13/2025

BETWEEN:

DR. MRS REGINA EZE…………….....................CLAIMANT

AND

1. FEDERAL POLYTECHNIC, OHODO, ENUGU STATE

2. SEN. EMMANUEL DANGANA OCHEJA

(Chairman of Council, Federal Polytechnic, Ohodo)

3. DR. EDIRI EMMANUEL DEFENDANTS

(Rector, Federal Polytechnic, Ohodo)

4. GRACE EZEALI

(Registrar, Federal Polytechnic, Ohodo)

APPEARANCES:

B.C. OGUINE - FOR THE CLAIMANT.
JAMES IDIH - FOR THE DEFENDANTS.

CONSOLIDATED RULINGS

INTRODUCTION

COMPLAINT commenced this suit Jun 26, 2025 together with Statement of Facts [SF], which at its end, contained reliefs essentially asking for declaration that the suspension and termination of the claimant’s appointment are unlawful. It prays for: reinstatement, payment of arrears of salaries and damages. The defendants reacted to the foregoing by filing Memo of Conditional Appearance together with Statement of Defence [SD], in which the defendants raised preliminary objections against the Court’s jurisdiction in para 54 thereof. The claimant subsequently filed Motion on Notice for Interlocutory Injunction [MNII] together with Affidavit in Support [AS] Sep 3, 2025, to which the defendants reacted by filing both Counter Affidavit and Notice of Preliminary Objection [NPO] Sep 9, 2025; and the claimant filed Reply on Points of Law [RPL] to the NPO Sep 18, 2025 and Further Affidavit [FA] in support of the AS against the defendants’ CA against the MNII Sep 16, 2025.

The matter came up before me for the first time Sep 24, 2025 and by the agreement of the learned counsel to both sides, both applications: the NPO and the MNII were taken together. Learned JAMES IDIH, of counsel to the defendants, adopted the Written Address [WA] in support of the NPO and urged the Court to uphold the NPO. The learned counsel placed great emphasis on Anolam v. FUTO (2025) 5 NWLR (Pt. 1984) 651 at 673, which he said, was the latest Supreme Court’s authority that the Public Officers Protection Act [POPA] was applicable to public employments. Thereafter, learned B.C. OGUINE, of counsel to the claimant, adopted the RPL against the NPO and urged the Court to dismiss the NPO. Thereafter, learned OGUINE went ahead to rely on the AS and the FA, and adopted the WA in support of the MNII and urged the Court to grant the interlocutory injunction and thereafter, the learned IDIH, of counsel to the defendants, adopted the WA in support of the CA against the MNII and urged the Court to dismiss the MNII. The case was thereafter adjourned to Nov 18, 2025 for consolidated rulings on the two applications. As the decision was not ready that date, it was adjourned sine die and when it became ready, a new date was communicated to the learned counsel to the parties.

Having given the introduction, my next duty is summary of the processes. I shall summarise the processes on the NPO first and then, those on the MNII. There I go.

SUMMARY OF THE PROCESSES ON THE NPO

A: The NPO

The grounds of the NPO are: the suit is statute-barred against public officers, 1^st defendant is non-juristic, agents of principals cannot be sued, and the action is improperly constituted, while pre-action notice was not issued. The gravamen of the AS is that the Federal Polytechnic (Amendment) Act [FPAA] made the Governing Council [GC] the juristic personality that could be sued and it was not sued while the 1^st defendant sued, is not a juristic person and that; the claimant’s appointment was terminated Jan 8, 2025 while this suit was filed Jun 26, 2025 and the 2^nd-4^th defendants were members of the GC.

Learned JERRY ENOJA franked the WA in support and distilled two issues thus:

Whether or not the cause of action in this suit is statute-barred?
Whether or not the 1^st Respondent/Applicant is properly constituted as to invest the honourable court with requisite jurisdiction to entertain the case against the Respondents/Applicants?

Arguing issue 1, which is on statute-bar, the learned counsel submitted that the originating processes are to be examined to determine the applicability of limitation laws, which is reckoned from when the cause of action arose and cited AG Adamawa State v. AGF (2014) 14 NWLR (Pt. 1428) 515. The learned counsel submitted that the cause of action herein arose Jan 8, 2025 while this suit was filed Jun 26, 2025 and that this was against the three months provided in S. 2(a) of the POPA. The learned counsel submitted that time began to run Jan 8, 2025 when the claimant’s appointment was terminated and cited Nigerian Ports Authority Plc v. Lotus Plastic Ltd (2005) 19 NWLR (Pt. 959) 158. The learned counsel submitted that, in the instant case, time lapsed Apr 8, 2025 and thus, this action commenced Jun 26, 2025 was commenced beyond schedule. The learned counsel submitted that thus, the claimant lost the right to enforce the cause of action and the court lacks jurisdiction thereof and cited AG Adamawa v. AGF [supra]. The learned counsel cited Anolam v. FUTO (2025) 5 NWLR (Pt. 1984) 651 at 673 to the effect that the POPA is applicable to public employment matters. The learned counsel cited Oruku v. Oruku (2024) 1 NWLR (Pt. 1919) 371 to the effect that this matter must be struck out and moved to issue 2.

Under issue 2, which deals with the issue of improper constitution, the learned counsel cited James v. NSCDC (2015) 8 NWLR (Pt. 462) 514; LASTMA v. Esezobo (2017) 5 NWLR (Pt. 1559) 350 at 335?; and Ataguba & Co v. Gura (Nig.) Ltd (2005) 8 NWLR (Pt. 927) 429 to the effect that a case must have juristic parties on both sides for the court to have jurisdiction and submitted that the 1^st respondent herein was not a juristic person. The learned counsel cited SS. 1 & 3(1) of the Federal Polytechnic Amendment Act [FPAA] that it made the GC the juristic personality. The learned counsel argued that, statutes confer juristic personality directly or impliedly on artificial bodies and cited LASTMA v. Esezobo [supra]. The learned counsel submitted that, arising from the above, the GC is the sole juristic personality that could be sued in this instance, as provided by law and cited Abubakar & Ors v. Yar’Adua & (2008) LPELR-51 (SC). The learned counsel further argued that the suing of the 1^st respondent in this case is not a misnomer, but purely a non-juristic person, and cannot be cured by amendment and cited Calabar Municipal Govt. v. Honesty (2022) 2 NWLR (PT. 1815) 404.

The learned counsel thereafter moved to another aspect of the alleged wrong constitution, this time around, arguing that the 2^nd-4^th respondents had no nexus with the cause of action to warrant being sued and submitted that, as such, no reasonable cause of action was disclosed against them. On this, the learned counsel cited UBN v. Umeoduagu (2004) LPELR-3395 (SC) to the effect that the court must restrict itself to the originating processes to ascertain the cause of action. The learned counsel argued that, as the cause of action was the termination of the claimant’s appointment, the right to terminate the claimant’s appointment, which belonged solely to the GC, and the 2^nd-4^th respondents had no power to unilaterally terminate the claimant’s appointment, there is no cause of action against them. On this, the learned counsel placed reliance of SS. 3(2), 10(1) & 17(3) of the FPAA. The learned counsel argued that, this becomes more so when the 2^nd and 3^rd respondents are just two of the members of the GC while the 4^th is not even a member. The learned counsel argued that, even where there is cause of action, a claimant cannot sue at large and cited Adesina v. Air France (2022) 8 NWLR (Pt. 1833) 523 to the effect that, the claimant cannot sue innocent passersby but only the persons directly linked with the cause of action. The learned counsel urged the Court to uphold the objection in issue 2 and ended his arguments by urging the court to strike out this suit on the authority of Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348. That being the end of the learned counsel’s WA on the NPO, I move to summarise the claimant’s learned counsel’s RPL in opposition to the NPO.

B: Claimant’s RPL in Opposition to the NPO

Learned B.C. OGUINE franked the claimant’s RPL against the NPO. No CA was filed as the claimant only replied on points of law. The learned counsel cited National Revenue Mobilisation Allocation and Fiscal Commission & 2 Ors. v. Ajibola Johnson & 10 Ors. [RMAFC’S case] (2019) 2 NWLR (Pt. 1656) 247 at 253 and a host of other earlier authorities, all from the Supreme Court, and argued that the POPA, contrary to the submissions of the learned defendants’ counsel, is not applicable to contracts of public employment and that; all the authorities cited by the opposition are irrelevant to the cause of action herein. The learned counsel, citing RMAFC’s case [supra]; Yabugbe v. COP (1992) 2 NWLR (Pt. 234) 152 and Offoboche v. Ogoja LG (2001) 16 NWLR (Pt. 739) 458, submitted that the POPA does not cover abuse of office or actions without semblance of legal justification. The learned counsel argued that the defendants herein did the cause of action after they had been served with court processes to restrain them and thus, acted in utter disrespect to court and hence, cannot rely on limitation law, even if it is applicable.

The learned counsel thereafter moved to issue 2 of the NPO and first replied to the issue of non-juristic personality and submitted that the defendants admitted that juristic personality, in this instance, is a creation of S. 3(1) of the FPAA and argued that the operative word of that section is “may” which connotes permissiveness, contrary to compulsiveness, and cited Ekanem v. Reg. Trustees, CCGS (2023) 6 NWLR (Pt. 1879) 43 at 52 on how to construe “may”. The learned counsel submitted that, arising from this, it is not compulsory to sue the GC and that the 1^st defendant was rightly sued. The learned counsel argued that this opinion was supported by Carlen Ltd v. UNIJOS (1994) 1 NACR 125 at 127. On the issue that you cannot sue the agents of a disclosed principal, the learned counsel argued that that is only applicable where the agents acted within their authorities and does not cover ultra vires acts and cited Cotechna International Ltd v. Churchgate Nigeria Ltd & Anor (2010) LPELR-897 and Febson Fitness Centre & Anor v. Cappa Holdings Ltd & Anor (2014) LPELR-34055 and that; since the cause of action herein alleged that the 2^nd-4^th defendants acted outside their authority, they are properly sued. The learned counsel ended the RPL by urging the Court to dismiss the NPO with cost. That ends the addresses on the NPO. I move to summary of the processes on the MNII filed by the claimant.

SUMMARY OF PROCESSES ON THE MNII

A: Summary of the MNII

The reliefs sought are:

AN INTERLOCUTORY ORDER of injunction staying all actions arising from the publication made by Respondents on the Vanguard Newspaper publication of July 21, 2025 as it affects the office of the Bursar of the Federal Polytechnic Ohodo which is subject of this suit; pending the determination of this suit.
AN INTERCUTORY ORDER of Court restraining the Respondents or any person howsoever described in that behalf from appointing a substantive Bursar of the 1^st Respondent pending the determination of this suit.

The grounds of the application are as repeated in the AS. And the gravamen of the AS is that this suit was filed Jun 26, 2025 and the defendants were served Jul 1, 2025 and the defendants thereafter went to advertise the position for recruitment, which the claimant wants to be reinstated, Jul 21, 2025 in order to foist a fait accompli on the court. The MNII has WA in support franked by learned B.C. OGUINE with a lone issue: “Whether the Defendants/Respondents can legally take steps to replace the applicant in the 1^st Defendant/Respondent after becoming aware of the pendency of this suit.” [sic]

The learned counsel citing Nwawka v. Ohazurika (2014) 24 WRN 153, submitted that, once a matter is submitted to the court, the parties lack right to further self helps in order to prevent foisting on the court fait accompli. The learned counsel argued that the 1^st defendant’s action in advertising for filing, the claimant’s position, a position into which the claimant wants reinstatement, after this suit was served on the 1^st defendant, was wrong, as it would make this Court’s judgment a nullity if the suit were decided in the claimant’s favour. The learned counsel cited Military Governor of Lagos v. Ojukwu (2001) 39 WRN 155 and Jones v. Securities and Exchange Commission 80 L. Ed. 1015 298 US 1-33. The learned counsel submitted that the purported advert must be set aside and cited Odogwu v. Odogwu (2004) 41 WRN 1. The learned counsel, citing Jones case the second time; Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 and Ezegbu v. FATB Ltd (1992) 1 NWLR (Pt. 220) 669, submitted that the position is the same, irrespective of the absence of a restraining order, once notice of the suit has been served on the other side.

The learned counsel submitted that this Court must curb the defendants’ excesses and prayed the Court to grant the prayers sought in the MNII and signed off the WA. I move to the defendants CA and WA against the MNII.

B: The Defendants’ CA and WA Against the MNII

The gravamen of the CA is that the GC, which is not a party to this suit, has the sole right to appoint and remove the Bursar/Librarian and that; the 2^nd-4^th defendants have not done any advert for the replacement of any staff, while the defendants denied foisting a fait accompli on the court because they have not interfered in any judicial process. In addition, the defendants counter-deposed the AS that the Federal Polytechnic, Ohono is not a juristic person and that; the 2^nd-4^th defendants are agents of the GC and that, the Court cannot make order against the GC which is not a party in the suit. Thus, ended the CA. I move to summary of the WA in support.

Learned JERRY O. ENOJA franked the WA for which he framed two issues, to wit:

Whether the Claimant/Applicant’s suit against the Respondents is properly constituted to vest jurisdiction on this Honourable Court?
Whether the Applicant’s application against the Respondents is meritorious and deserving of the Honourable Court’s discretion?

Arguing issue 1, the learned counsel repeated exactly the same arguments in his WA in support of the NPO. It is not therefore necessary to summarise them again beyond the fact that he concluded it by submitting that, by reason of the lack of jurisdiction, this Court cannot look at the MNII. I move to summary of arguments on issue 2.

The learned counsel argued that the discretion of court is exercised based on cogent and justifiable reasons and cited Akinyemi v. Odua Inv. Co. Ltd (2012) 17 NWLR (Pt. 1329) 209 at 242 and that here, the Court is being invited to exercise its discretion to restrain the 1^st defendant from its statutory duties and that, the applicant has not placed any material before this Court to warrant granting this application. The learned counsel went back to his arguments in the NPO that, because the applicant cannot sue the defendants and has not sued the GC, which is the sole juristic personality, that means she has not placed any material before this Court to warrant the granting of this application and cited Oliver Onyali & Anor v. Okpala & Ors (2001) 1 NWLR (Pt. 694) 282 at 304 and Osagie v. Arasomwn (2003) 1 FWLR (Pt. 186) 61 at 73-74 to the effect that the grant of interlocutory injunction must be purely equitable and in accordance with rules of law and practice, citing National Pension Commission v. FGP Ltd. (2014) 2 NWLR (pt. 1391) 346 at 374.

The learned counsel submitted that this application therefore, lacks merits and must be dismissed with substantial cost and thereafter, signed off the WA. I move to the FA.

C: Summary of the FA

The FA merely corrected the error in the AS of the MNII that the publication in issue was made in the Guardian and not the Vanguard and annexed a clearer copy of the said publication and that, the claimant/applicant received a copy of invitation for interview into the office from an anonymous person, which was signed by the 4^th respondent. The learned counsel did not file RPL. Here ends summary of all the processes relating to the two separate applications in this case. I must now proceed to my consolidated decisions on both applications.

But before then, I have to give the customary assurances. I am aware that being that an NPO was filed, I have to give my decision on it first before going into the other application. I wish to state that I have carefully read all the processes on the two applications and digested them, as evident in my summary of them above. I have carefully considered the facts as contained in the various affidavits. I have also carefully considered the focal authorities cited on both sides on the two applications. I have also done further research on relevant authorities to enable me give sound decisions on the two applications, since it is a court’s duty to decide according to law and not necessarily according to the addresses of counsel, which are merely non-binding assistance to the Court. To my decision I now go.

CONSOLIDATED DECISIONS ON THE TWO MOTIONS AND THE REASONS FOR THE DECISIONS

A: Decision on the NPO

I adopt the two issues formulated by the objectors but slightly reframed them to shun them of verbosity:

Is this suit statute-barred?
Is the suit improperly constituted?

I take the two issues seriatim. Issue 1 as reflected above is about S. 2(a) of the POPA divesting this Court of jurisdiction, as the suit was filed outside the three-month moratorium. The cause of action arose Jan 8, 2025 and this action was filed Jun 26, 2025. Assuming the POPA applied, arguendo, the cause of action would ordinarily have lapsed before this action was filed. But did the POPA actually apply to this action? That is the real question to answer. The objectors’ learned counsel cited Anolam’s case, which he submitted was the latest Supreme Court’s authority that held that POPA was applicable to contracts of public employment. On the other hand, the learned respondent’s counsel cited RMAFC’s case to the effect that the POPA is not applicable to contracts of public employment and submitted that, in any case, the POPA cannot apply in this case because, the objectors’ conducts were unconstitutional and amounted to disrespect to the Court.

The crux of our investigation is whether the POPA applies to bar this action. Thus, it becomes the primary responsibility of this Court to determine if the POPA applies to bar this action as a matter of law, irrespective of counsel addresses, as counsel addresses do not bind courts, but the hard facts of a case in relation to the issue at stake – Obidike v. State (2014) 10 NWLR (Pt. 1414) 53 (SC) 77, D-E – being that, it is the primary responsibility of a court to apply the true position of law to the facts of a case before it – Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416 (SC) 447, C; Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA); and S. 14 of the National Industrial Court Act [NICA]. And to determine the central point, the Court must first determine whether truly, the POPA applies to contracts of public employments in the present legal regime of employment relations.

Before I go further, I need to observe quickly that the objectors’ learned counsel’s argument that Anolam’s case was the latest authority from the Supreme Court that held that the POPA is applicable to contracts of public employment is incorrect. It is not. The latest authority directly on the issue, in my own knowledge, is Okoronkwo v. INEC (2025) 8 NWLR (Pt. 1991) 131 (SC) which was delivered Friday Feb 7, 2025 as against Anolam’s case decided Friday Jan 17, 2025. Incidentally, both authorities held that the POPA was applicable to contracts of public employments and the latest Supreme Court’s authority cited on the issue by the learned counsel to the respondent was RMAFC’s case, which was decided Friday Jul 13, 2018, seven years earlier.

True, RMAFC’s case held that the POPA was not applicable to contracts of public employment, as in this instance, but as it could be seen, it was decided earlier than both Anolam and Okoronkwo’s cases, which decided contrarily. In fact, RMAFC’s position remained the law until this year, when both Anolam and Okoronkwo’s cases overthrew, Rector, Kwara State Polytechnic v. Adefila (2024) 9 NWLR (Pt. 1944) – delivered Dec 2, 2022. By that, the NIC had no pressing reason to examine the position of the Third Alteration Act on POPA in detail since the precedents were in line. But the reason arises now that the precedents have changed. I have therefore carefully read the three authorities and found that they are not much relevant in the determination of the applicability of the POPA on the current state of the law.

The causes of action in the three cases arose before the Third Alteration Act and were decided on the state of the law, as applicable before the Third Alteration Act. And more importantly so, the actions leading to these authorities were not filed in the NIC, which had the primary jurisdiction over the Third Alteration Act. Though, the three were decided at the Supreme Court post-Third Alteration Act. None of them considered the effects of the S. 254C-(1)(b), (f)-(h) & (2) of the Constitution; the domesticated African Charter on Human and Peoples’ Rights (Application and Enforcement) Act [ACHPRA] and, the Nigerian ratified International Covenant on Economic, Social and Cultural Rights [ICESCR]. They all directly impact the POPA and S. 17 of the Constitution, which also impacts POPA, and also energised by the Third Alteration Act and the ACHPRA and ICESCR was not considered.

Now, in this instance, the cause of action arose under the currency of the Third Alteration Act and being industrial relations matter, the case was filed at the NIC, and the POPA was pleaded in limine as impacting it, the validity of the POPA must per force, be decided under the auspices of the Third Alteration Act; the ICESCR and the ACHPRA. The ICESCR was cited with approval in the Court of Appeal’s recent decision in The La Casera Company Plc v. Ganghadaran (Unreported Suit No. CA/L/1059/2016) – delivered Jul 9, 2025. The Supreme Court stated the law on when and how to distinguish precedents in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 (SC) 168, E-G:

“A previous decision is not to be departed from, or even followed, where the facts or the law applicable in that previous case are distinguishable from those in the latter case. Where relevant statute laws have changed since the previous decision, what is called for is ‘distinguishing’ rather than ‘departure’.”

The Court of Appeal reiterated the above mantra in J.P. v. INEC (2004) 12 NWLR (Pt. 886) 140 (CA) 158, D-E when it held:

“Past decisions in matters wherein similar facts and laws to the subsequent ones should inform the eventual decision of the court. But where the facts and/or the laws that had been applied in the previous case had differed from either the facts and/or the laws under consideration in the subsequent case, the enquiring court will not be bound to apply the principles enunciated in the earlier case.”

The Court of Appeal further reiterated the same principle with specific reference to the Third Alteration Act in Sahara Energy Resources Ltd v. Oyebola [supra] when it held that:

“While the doctrine of stare decisis or binding judicial precedent enjoins the courts to follow the decisions of superior courts, it has to be remembered that what the earlier decisions established is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand: Fawehinmi vs. NBA (NO. 2) 2 NWLR (Pt 105) 558 at 650. It is in this wise that it becomes necessary to interrogate whether, in the light of the Third Alteration Act to the 1999 Constitution, wherein the National Industrial Court was fully structured into the Nigerian Judiciary as a superior court of record and a new labour jurisprudence emanated; the principle established in the cases prior to the said Third Alteration Act…still remains the regnant law in the diacritical circumstances; or whether indeed a new legal regime that demands a departure from the principle as it existed has been introduced in our corpus juris in employment and labour related litigations.”

That exactly is what we intend to examine here in relation to the POPA. We intend to examine if the Third Alteration Act had wrought a change in the law under the new employment law regime. With the statement of the law above in relation to the application of new law on old precedents, I accordingly distinguish the three most recent Supreme Court’s authorities that held that POPA is applicable to contracts of public employments: Aba v. Board of Directors NIPOST & Ors. (2023) 5 NWLR (Pt. 1878) 475 (SC) [delivered Dec 2, 2022]; Anolam v. FUTO (2025) 5 NWLR (Pt. 1984) 651 (SC) [delivered Jan 17, 2025]; and Okoronkwo v. INEC (2025) 8 NWLR (Pt. 1991) 131 (SC) [delivered Feb 7, 2025]. They cannot be the authorities for this case, as the law under which they were determined has transmuted.

But before I proceed further, there is another issue that I must clear. In a recent NIC’s authority, the question of the continued applicability of the POPA to contracts of public employment was examined and it held that the POPA was unconstitutional under the present legal regime and struck it down – Ekwo v. INEC[1] & Ors (Unreported Suit NO. NICN/EN/04/2024) – delivered May 15, 2025. Subsequent to it, the NIC in another decision – Nicholas v. NDLEA[2] [Delivered Sep 24, 2025] – held that the POPA was applicable to contracts of public employment in line with the most recent precedent of the Supreme Court in Okorokwo v. INEC [supra]. The latter NIC’s decision referred to the earlier NIC’s decision in Ekwo v. INEC [supra] and declined to follow it. While it essentially agreed with the decision, it nevertheless held that it would follow the Supreme Court’s decisions in Anolam and Okoronkwo’s cases, in obedience to stare decisis. It also said Ekwo v. INEC decided that the Limitation Act [LA] was the applicable law but that, it still did not save the action. I have carefully read this latter NIC’s decision in Nicholas v. NDLEA and found that it did not engage with the rationes decidendi regarding stare decisis and when precedents can be distinguished, which was carefully addressed in Ekwo v. INEC.

It did not show that these Supreme Court’s cases were decided under the auspices of the Third Alteration Act and so, did not address if POPA was still valid under the Third Alteration Act, as to whether it meets the requirements of sui generis statute meant specifically for industrial relations, international best practices, and scales the hurdle of the doctrine of unfair labour practices, as enjoined by S. 254C-(1)(b), (f)-(h)&(2) of the Constitution. And Ekwo v. INEC had clearly distinguished these recent Supreme Court’s precedents by finding that, they were not decided under the auspices of the Third Alteration Act, particularly with reference to S. 254C-(1)(b), (f)-(h)&(2) of the Constitution. In the light of more recent cognate Supreme Court’s decision in Geepee Ind. (Nig.) Ltd v. The MV Kota Manis (2025) 15 NWLR (Pt. 2007) 143 (SC) [delivered Apr 25, 2025] and other more recent authorities, which did not come to my attention at the time Ekwo v. INEC was delivered, I feel more fortified that the POPA, under the present constitutional configuration, does not apply to contracts of public employments.

In fidelity to the doctrine of stare decisis, which allows distinguishing precedents on the basis of change or difference in the laws under which they were set, and to avoid the confusion arising from implied overruling, in all humility, I consciously decline to follow Nicholas v. NDLEA and hereby accordingly overrule it. I am bound by Ekwo v. INEC. I will restate its essence in the light of more relevant authorities that came to my attention since it was handed down and which strengthened the conclusions reached in Ekwo v. INEC.

That settled, I move to examine the reasons why the POPA is not applicable to this action or rather to contracts of public employments. But before then, I will make an introduction to the Third Alteration Act to bring out its essence and the jurisprudence it postulates. The Court of Appeal quoted with approval Arturo S. Bronstein in Sahara Energy Resources Ltd v. Oyebola [supra] on the nature and extent of change wrought in the law of the realm with regard to employment/labour law by the Third Alteration Act and I quote:

“The goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus, labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the workplace.”

An erudite Indian author [Gunnala Swami Goud[3]] confirmed the same about the nature, status and objectives of modern employment law in India and around the democratic world:

“Moreover, the proliferation of international labor standards promulgated by organizations such as International Labour Organization (ILO) underscores the global dimension of unfair labor practices, transcending national borders and jurisdictions. Through conventions, recommendations, supervisory mechanisms, the ILO seeks to promote the principles of social justice, labor rights, and decent work for all, thereby contributing to the harmonization of labor laws and the eradication of exploitative practices worldwide (ILO, 2021).”

The ILO does these, first and foremost, through the enactments of enforceable International Labour Standards [ILS] in their conventions, protocols and recommendations. Still talking about the nature of changes brought about by the Third Alteration Act, the Court of Appeal said courts’ attitude to the interpretation of the Third Alteration Act must be that of tabula rasa and that, courts must wean themselves of the knowledge of the law as it stood before the Third Alteration Act, to enable them avoid prejudice against its literal interpretation. The fulcrum of the most recent Supreme Court’s decision – Okoronkwo’s case – holding that the POPA is applicable to contracts of public employment is that, this is so because contracts of public employment are garnished with statutory flavours, hence, the POPA, as a statute, applies to them. This is exactly what the Supreme Court said:

“In the instant case, the respondent, in exercising its statutory right and duty, served the appellant with the letter of suspension on 13/9/1997. Undoubtedly, the respondent could not rightly be said to have acted under any Common Law right, as it’s a contract of employment governed by statutes and not Common Law. The cases of N.P.A. v. Constructions General; Fasrupa Logefar SPA (1974) 12 SC 81, cited by the appellant are not apposite to the instant case.” – [P. 155, D-H].

Earlier in Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606 (SC) 650-651, F-A, the Supreme Court held:

“In determining the statutory provision on limitation of action against public corporation in an action brought upon a contract, the nature of the contract must be considered, if the contract in issue is one which is specific or special contract in which it might have been expected that the parties freely agreed to the terms of the relationship between them, the provision of the limitation law would not apply… However, it would apply on matters bordering on the day-to-day activities of the public corporation as protected by the provisions of the law”.

In Bakare v. NRC, it would appear that contracts of public employment were regarded as statute-regulated standard form contracts, but not special contracts and as such, the POPA regulates them. Hence, the common denominator is that the POPA regulates contracts of public employment because, they have statutory flavours. But statutory flavour really seems to relate to protection for public servants against whimsical termination and not the POPA. Nevertheless, our first assignment therefore is to examine the continued validity of these rationes decidendi under the auspices of the Third Alteration Act. To aid the examination, I hereby reproduce verbatim, S. 254C-(1)(b), (f)-(h) & (2) of the Constitution, which directly falls for construction in answering this question:

“Notwithstanding the provisions of sections 251, 257, 272 and anything 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 –

…
Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
…
…
…
Relating to or connected with unfair labour practice or international best practice in labour, employment and industrial relation matters;
Relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
Relating to, connected with or pertaining to the application or interpretation of international labour standards;
…

(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.”

In addition to the above, S. 254B-(3) & (4) of the Constitution says only consummate experts in industrial relations law with considerable practical experience could be appointed NIC’s judges, with the objective of efficiently navigating and implementing the provisions of S. 254C-(1)(b), (f)-(h)&(2) of the Constitution, which constitute the radical essence of the new jurisdiction granted the NIC to revolutionise industrial relations law in Nigeria in order to eschew unfair labour practices and bring up its industrial relations jurisprudence in tune with international best practices. In essence, the NIC has the primary responsibility of applying the provisions of S. 254C-(1)(b), (f)-(h)&(2) of the Constitution, as its core area of expertise. Similar consideration informed the Madagascar’s Supreme Court’s decision in Dugain v. Air Madagascar[4] in which it remanded back a labour case involving workplace discrimination in which the issue of the applicability of ILO C111 and CEDAW arose for the first time before it, to the lower court, saying the Supreme Court’s duty was limited to ensuring that relevant conventions were considered and applied by the lower court. The Court of Appeal in Sahara Energy Resources Ltd v. Oyebola [supra], citing the English cases of Uber BV v. Yaseen Aslam (2018) EWCA CIV 2748 and, Autoclenz Ltd v. Belcher (2011) UKSC 41; also (2011) ICR 1157 equally endorsed this policy that firsthand decisions of the employment tribunals are sacrosanct and rarely disturbed because of their experience and expertise in labour relations.

NIC’s situation is peculiar because, in the main, civil appeals from it terminate at the Court of Appeal [S. 243(4) of the Constitution], except a case is stated to the Supreme Court, which mainly happens where there are conflicting decisions on a labour issue from the Court of Appeal, yet precedents from the Supreme Court decided on labour causes of action that arose before the Third Alteration Act and decided under the erstwhile law, might continue to be cited, except if the NIC takes the initiative to bring out the new position of law for review by the Court of Appeal, as happened in Sahara Energy Resources v. Oyebola [supra], where the Court of Appeal approved the NIC’s locus classicus that damages were awardable for ruffled feelings in termination cases, thereby uprooting the agelong precedents to the contrary.

A host of international conventions and international labour law instruments are applicable in Nigeria, which the NIC constantly mandatorily applies in its resolution of industrial relations’ cases, because that is the only way to streamline Nigeria’s industrial relations jurisprudence to bring it in line with international best practices, as enjoined by S. 254C(1)(f) of the Constitution. This much was confirmed in Sahara Energy Resources Ltd v. Oyebola. The ILO alone has a gamut of 190[5] conventions, 5 protocols[6], 207 recommendations[7], and countless general principles digested from these conventions. There are countless sources of international best practices, which keep evolving on regular basis, that are also now applicable to industrial relations jurisprudence in Nigeria. There are other international labour conventions from ICAO, International Maritime Organisation [IMO], CEDAW, ICESCR, ACHPRA, UDHR, etc. that are also applicable. A host of other local sui generis statutes are also applicable by virtue of S. 254C-(1)(b) of the Constitution.

The cumulative effect of all this is that, contracts of employments and the nature of employment law have been radically changed, such that, what we now have are no longer the simple adhesive contracts of employment, and the employment types of master-servant and employment with statutory flavour that were the vogue before the emergence of the Third Alteration Act, but now, we have very complex contracts of employment that are simply sue generis. A distinction here must be made between contracts that are special and contracts that are sui generis, both are not homologous. Sui generis entails something in a class of its own [radically different] such that it cannot be classified into any existing category whereas, special means something with special needs or rules within an existing category.

By virtue of this constitutional innovation revolutionising industrial relations law in Nigeria, the gulf between master-servant employment and public employment has been severely narrowed to the extent that, all employments in Nigeria now have constitutional flavour, a fact which the Court of Appeal confirmed in Sahara Energy Resources Ltd v. Oyebola when it says S. 254C-(1)(f) of the Constitution now gives “necessary salve” to employees to protect them against unfair labour practices. The phrase “necessary salve” is synonymous with ‘statutory flavour’ and, being that this status is now directly conferred by the Constitution, it supersedes statutory flavour by reason of its grundnorm status to now give all types of employments in Nigeria, without exception, constitutional flavour. And this constitutional flavour, by dint of the compulsion to apply international conventions on industrial relations and international best practices/standards, has elevated the law of industrial relations in Nigeria to purely Public International Law thus, confirming without ambiguity, the sui generis of modern Nigerian industrial relations law. This is what Breen Creighton[8] underscored in his brilliant chapter: “The Future of Labour Law: Is There a Role for International Labour Standards” by observing that:

“A key element in the rationale for the establishment of the ILO was the perception that workers needed to be protected against the adverse effects of international competition. This required that nation states should not be allowed to obtain an unfair competitive advantage by tolerating the maintenance of abusive labour conditions within their territory. This could most effectively be achieved by the setting, promotion and enforcement of ILS.”

The “the setting, promotion and enforcement of ILS” equals International Labour Law as a full branch in Public International Law[9], a fact, which led M. Biagi, in his erudite article to say: “International Labour Law is one category of international law[10].” Thus, the legal effect of being a branch of Public International Law, is that law of industrial relations in Nigeria is governed exclusively by international conventions and international best practices, cognate municipal statutes, such that, any local legislation or practice that is not in tune, must give way. That is the legal effect of the constitutional wholesale non-obstante adoption of international industrial relations best practices, which are found in ILS by SS. 254A, 254B-(3)&(4) & 254C-(1)(f)-(h) & (2) of the Constitution and the constitutional creation of a specialist court [NIC] with specialist judges, for that purpose. We can now see the radical effect of being sui generis. In a nutshell, Nigerian industrial relations law is wholly globalised.

If it is recalled, the whole essence of statutory flavour that originally existed only with regard to public employments in Nigeria before the Third Alteration Act debut, was to give public employees some form of fair labour rights, which hitherto, their master-servant counterparts did not enjoy. This dichotomy has now been almost completely obliterated to the extent now that you cannot terminate any employment without given reason and where reinstatement is not possible, adequate damages, beyond earned and due remunerations, must be paid for wrongful termination – Sahara Energy Resources Ltd v. Oyebola [supra] to assuage ruffled feelings, a relief not grantable under the previous regime of master-servant in private employment relations.

The effect is that all contracts of employment now has a lot of distinctive features not contemplated by the parties but in the employees’ favour as if they had freely negotiated the contracts even-handed, and as a result, turning every contract of employment in the public or private sector into sui generis contracts, to capture the breadth of intricacies that occur in modern industrial relations. And the unique nature of ILO Conventions and similar conventions from other international bodies, is that they create highly specific terms and conditions of service in favour of workers that are distinct from the general principles brought about by the need to eschew unfair labour practices, as enjoined by S. 254C-(1)(f) of the Constitution and SS. 12-19 of the NICA, which are to be worked out on case-by-case basis. So, what we now have in Nigeria is simply sui generis industrial relations law. In the beautiful language of an erudite labour law expert of international repute[11]:

“Labour market is not a market like any other, and so cannot follow the same rules as other markets do…since human dignity may be endangered by employment relationship, labour law must safeguard human dignity. This goal of human dignity is captured by the ILO in its decent work agenda.

Because these three goals are closely connected, they explain why the employment contract is not just a contract amongst others – it establishes a relationship sui generis.”

All over the modern democratic world, employment relations law, by means of statutory interventions and the enforcement of ILS, is now sui generis. Asserting the sui generis nature of employment law in the USA, Rachel Arnow-Richman[12] observed: “the result is that the law of employment contracts is highly idiosyncratic”. Simon Lean-Massey[13] referenced the State Services Act 1988, noting that it obliterated the distinction between public and private employments in New Zealand and made employment contracts special contracts.

The law recognises two ways of creating special contracts: either by way of statute or by negotiation that creates an agreement that goes beyond the ordinary run of things in everyday contracts[14]. The Court of Appeal testified to the fact that statutes confer the status of special contract in its recent decision in CBN v. Adani Mega System Ltd[15] [unreported Appeal No. CA/ABJ/CV/1300/2023 – delivered Apr 25, 2025] in which it held that the Pre-Shipment Inspection of Export Act and the Pre-Shipment Inspection of Import Act made the contract in issue a special contract by clothing it with statutory flavour thus, conferring exclusive jurisdiction on the FHC by dint of having been taken out of the run of simple contracts. In the same manner, Public Procurement Act standadised a lot of public contracts. In like manner, the overriding eminence of the grundnorm in S. 254C-(1)(b), (f)-(h) & (2) of the Constitution, made industrial relations law far above special contracts into sui generis contracts, by making it exclusively subject to international conventions, ILS, international best practices and cognate municipal statutes.

As contracts by private citizens and firms with public authorities are increasingly becoming standard-form contracts but not sui generis, being that they are subject entirely to municipal laws, modern Nigerian law of industrial relations has completely radicalised and become entirely sui generis, being now exclusively regulated by international conventions, ILS, international best practices, and cognate municipal statutes and rules. In fact, there is no better testimonia of the sui generis that the modern Nigerian employment jurisprudence has become than the very constitutionally establishment NIC as a specialised superior court of record with specialist judges to solely carter for its sui generis subject matter. Hence, if the POPA was not applicable to the special private contracts because they were freely negotiated, the Constitution now gives all contracts of employment better terms and conditions of employment that are compulsory in favour of workers such that, they are simply sui generis and as such, subject only to their own sui generis laws, conventions, rules and practices and as such, they are no longer subject to any general procedural law like the POPA.

Having established that all contracts of employment – public and private – are now sui generis in Nigeria, in line with the Supreme Court’s most recent authority of Geepee, that takes care of the Supreme Court’s rationes decidendi in Aba v. Board of Directors NIPOST & Ors. [supra]; Anolam v. FUTO [supra]; and Okoronkwo v. INEC [supra], that the POPA applies to contracts of public employment because it regulates their day-to-day activities, they being now wholly regulated by international conventions, ILS, international best practices, and customised municipal statutes. Hence, the POPA is not applicable to this case, which is contract of public employment, and I so hold. The Supreme Court ratiocinated the legal effect of sui generis contracts in in Geepee [supra] 165-166, G-F; 168, G and established the locus classicus that:

“In our law and practice, admiralty law is regarded as sui generis. The term sui generis means ‘of its own kind’ or ‘unique’ and in Nigerian legal context, admiralty is treated as a specialized and distinct area of law that does not entirely conform to the general principles governing other branches of law. Admiralty Law in Nigeria draws from international conventions, customary maritime practices and domestic legislations. It also follows its own set of procedural rules distinct from general civil procedure rules. The Admiralty Jurisdiction Act (AJA) 1991, is a specific legislation that outlines and governs the admiralty jurisdiction of the Federal High Court…In addition to the Admiralty Jurisdiction Act (AJA), there is Admiralty Jurisdiction Procedure Rules, 2011. These are specialized and peculiar legislations dealing with Admiralty…The courts went into errors in the past by allowing the Federal High Court Rules and the Sheriffs and Civil Process Act to apply to Admiralty matters.”

The precursor to this most authoritative statement of the law on the essence of sui generis subject in law is the Supreme Court’s Apr 17, 1998 decision in Rhein Mass UND See GMBH v. Rivway Lines Ltd (1998) 5 NWLR (Pt. 549) 265 (SC) 278, B-G; 281, F-G, where the Supreme Court leveraged S. 7(3) of the LA to hold that limitation law is not applicable to admiralty actions in rem. The improvement on this in Geepee is that because, admiralty law is sui generis in its entire spectrum, in rem or in personam, general laws, rules, practice and procedure are not applicable to it but its own specially created laws [international conventions, treaties, customs, practice and procedure and specially created municipal statutes and rules specifically tailored for admiralty]. S. 7(3) of the LA took cognisance of the sui generis nature of admiralty in rem actions and created the exemptions for them.

Thus, the purport of Geepee is that without S. 7(3) of the LA, limitation laws contained in any general statute, will not apply to admiralty relations, either in rem or in personam because of the sui generis nature of the entire spectrum of admiralty law. The reason for this is that, were it not so, the nation might unintentionally breach its international obligations in international conventions and treaties relating to admiralty that it ratified, if all manners of general laws unconnected with admiralty and not specially tailored for it were allowed to apply to it. Domestic laws are interpreted to ensure that international obligations are not breached – Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 (SC) 342-343, F-D; 344, H; 345, F.

The central ratio in Geepee, though, directly on admiralty, applies mutatis mutandis to the sui generis modern Nigerian employment causes because, its central deduction is about the legal effect of contracts sui generis, and it established beyond doubt that, once a cause of action wears the toga of sui generis or a subject matter falls under the canopy of sui generis, any contrary general law will not apply to the field it covers, to outdo or overthrow the specific laws, practice and procedure designed specifically for the sui generis subject matter. The sui generis of modern Nigerian industrial relations law is actually more poignant than that of admiralty law, having been directly created in the Constitution and particularly so, in non-obstante constitutional provisions.

Having earlier settled the sui generis nature of modern Nigerian employment law beyond doubt, it follows that the law, practice and procedure on employment matters cannot follow, willy-nilly, the dictates of the general laws on civil litigation but only their own peculiar laws, practice and procedure. It is certain too that modern Nigerian industrial relations law, far more than admiralty law, is also much more governed by gargantuan numbers of international conventions and international best practices, and specific constitutional provisions and statutes specially made for its purpose – SS. 254B-(3) & (4), 254C-(1)(b), (f)-(h) & (2) of the Constitution, NICA, Trade Disputes Act [TDA], Trade Unions Act [TUA], Labour Act [LA], Employees Compensations Act [EPA], etc. Such is the potency of doctrine of sui generis that the Supreme Court held that, even the general civil procedure rules of the FHC itself and the Sheriffs and Civil Process Act [SCPA] are not applicable to adjudication of admiralty maters in the FHC, but the specialised procedures outlined in the Admiralty Jurisdiction Act [AJA] and the international conventions relating to admiralty. Such is the gargantuan number of ILO ILS that Breen Creighton [supra] observed that as at Jun 2003, ILO has created 379 formal instruments containing ILS in excess of 5,000 specific standards[16]. It is doubtful whether there is any other subject with more international legal instruments/standards than labour relations, and all these, apply to adjudication of industrial relations disputes in Nigeria.

It is also of interest to note that the ILO had its greatest fecundity of conventions on labour relations in admiralty with a whopping 37 Conventions and 31 Recommendations recently merged into the Maritime Labour Convention, 2006[17], which has been worldly acclaimed Seafarers’ Bill of Rights and ratified by Nigeria[18]. And the Court of Appeal held in The Vessel MT Sam Purpose & Anor (Ex MT. Tapti) v. Amarjeet Singh Bains (2021) LPELR-56460 (CA) that NIC has exclusive jurisdiction over admiralty labour claims. Thus, NIC shares directly in the admiralty jurisdiction and thus, shares directly in the Supreme Court’s ratio decidendi in Geepee that only specially designed admiralty statutes, international conventions, customs, practice and procedures, apply in admiralty litigation and not any general statute, practice and procedure. Likewise, the ILO has numerous other conventions on other aspects of labour relations.

We can now clearly see that modern Nigeria industrial relations jurisprudence has more claim to being sui generis than admiralty law, being much more regulated by international labour conventions, custom-made municipal statutes, international labour customs, practices and procedures. This is so with ILO’s gamut of 190 labour conventions, 5 protocols, 207 recommendations, resulting in more than 5,000 ILS as at 2003, and countless general principles digested from these conventions and numerous other international conventions from ICAO, IMO, CEDAW, ICESCR, ARCHPRA, UDHR, etc. on labour relations. Added to these are the countless international best labour practices that keep evolving on daily basis. Hence, in line with the Supreme Court’s decision in Geepee, these myriad conventions, international best practices and local statutes specifically created for industrial relations, as sanctioned by S. 254C-(1)(b), (f)-(h) & (2) of the Constitution, now govern the day-to-day activities and incidences of employment relations between employers and their employees, be they in the public or private sector, and not any other inconsistent general law. So, the public authority-employers and public employees are now both regulated exclusively by these international instruments, municipal cognate statutes and constitutional provisions specifically designed for labour relations and not any general statute, which the POPA is. The POPA, being a general law applicable to all persons alike and all acts of public authorities, is not applicable to the now sui generis jurisprudence of industrial relations in Nigeria.

Arts 8(1) & (3) and 9(1) of the ILO C158 – Termination of Employment Convention, 1982 (No. 158), the convention that promotes security of tenure of workers, now govern the incidences of limitation law in employment cases and decrees thus:

“Article 8(1) A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.

(2) …

(3) A worker may be deemed to have waived his right to appeal against the termination of his employment if he has not exercised that right within a reasonable period of time after the termination.”

9(1) The bodies referred to in Article 8 of this Convention shall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.”

It would be observed that Art 8(1)&(3) of ILO C158 says the employee shall appeal to only an impartial body and not to the employer and also, did not fix a specific time but a reasonable period of time. And the term “reasonable period of time” has been legally defined to mean: “the time needed to do what a contract requires to be done, based on subjective circumstances[19]”. The term therefore implies flexibility and elasticity and depends on proof with regards to the prevailing circumstances from the time the cause of action arose till when the suit was actually filed[20] to ascertain the reasonability of the time it was filed, as to whether it was caught by laches and acquiescence or any limitation law. Thus, the courts have discretion in the matter. It can extend time where a time is fixed and it means, absolute time bar without the discretion of courts to extend time in deserving cases, is an afront to this provision, which grants discretion to the courts and therefore, will be unlawful. The litmus test is the discretion of courts to examine the circumstances of the cases on case-by-case basis to determine the reasonability of the limitation time.

In this wise, such circumstances like negotiation, hospitalisation, etc. in the interval between the cause of action and the filing of a suit thereto matters. S. 2(a) of the POPA, in its proviso, actually envisages that prevailing circumstances could extend the limitation time, but limited it to a person in prison, as at the occurrence of the cause of action. But Art 8(3) of the ILO C158 did not restrict the use of circumstantial evidence to determine reasonable time to institute suits to challenge termination of employment. And because labour law places premium on negotiation, which is the reason S. 20 of the NICA specifically gives the NIC the power to order negotiation in deserving cases and S. 4-14 of the TDA provide compulsory ADR in trade disputes, which might drag well beyond the three-month of S. 2(a) of the POPA before action is referred or filed for the first time in the NIC, the “without prejudice rule” is therefore sacrosanct in NIC – Acmel (Nig.) Ltd v. FBN Plc (2014) 6 NWLR (Pt. 1402) 158 (CA) 180, C-D and Black’s Law Dictionary [supra] p. 1740 for the meaning of “without prejudice”. It would thus, be breach of good faith, for the employer to come out of failed negotiation and immediately raise limitation law against the employee.

That would amount to breach of good faith and will therefore constitute unfair labour practice in afront of S. 254C-(1)(f) of the Constitution and Art 8(3) of the ILO C158. This becomes more so when one construes S. 2(a) of the POPA with its S. 2(d), which insists that, in spite of the short period of three months, the claimant must still give elastic period to the defendant to settle. The implication of these curious and incongruous provisions is a command to obey impossibilities by putting the employees between the “devil and the deep blue sea” and thus, constitutes another instance of unfair labour practice because, it amounts to stopping the employee from rushing to court when his employment is terminated and at the same time, insisting he must file his case within three months or else, the action is statute-barred. The fact that negotiation was used as a bait to trick the victim into not filing action within time in order to take undue advantage of the POPA, matters under S. 254C-(1)(f) of the Constitution, as an instance of unfair labour practice, and breach of good faith, a doctrine the labour courts around the world has elevated to fundamental employment right, to bring fairness into labour relations. This makes the POPA unconstitutional and therefore, liable to be struck down.

It must be noted that unions do occasionally take up occasionally individual employment disputes, especially in termination of individual employees on grounds relating to union activities, as union matters [trade disputes], which must then undergo the compulsory ADR mechanisms spelt out in S. 4-14 of the TDA. But, as noted earlier, in the vast majority of individual employment disputes, the individual employees are left to their means. In the few instances where union take individual employment disputes as trade disputes: Would S. 2(a) of the POPA apply to the action coming to the NIC freshly for the first time after failed ADR sessions ordained by the TDA, which might drag beyond three months? Art 8(1) of the ILO C158 answers this question in the negative, because it recognises that such disputes could first be submitted to ADR [arbitration]. This further shows that the POPA is not applicable to contracts of public employment and industrial relations disputes.

To hold otherwise would mean that the court allowed the defendant to take undue advantage of failed statutory negotiation in bad faith. These and other circumstances are expected to be taken into consideration in determining the reasonability of the time the action was filed. In this wise, the absolute ban on any suit filed outside the three months sanctioned by S. 2(a) of the POPA without room for the court’s discretion to extend time in deserving cases, is an affront to Art 8(3) of the ILO C158 and SS. 4-14 of the TDA. And, being that this is a constitutionally sanctioned labour convention, the POPA cannot therefore compete with it – S. 1(1)&(2) of the Constitution and Geepee [supra] and therefore, the POPA is void, apart from being inapplicable to the sui generis contracts of employment, being a general statute not specifically enacted for employment relations but generally for the protection of public officers against suits for their acts and omissions against the whole world at large.

Now, the question might arise that ILO C158 is neither ratified nor domesticated by Nigeria, how come it is enforceable in Nigeria? Sahara Energy Resources Ltd v. Oyebola [supra] has cleared an aspect of the answer by sanctioning international best labour practices as capable of torpedoing incompatible pre-Third Alteration Act principles of law. ILO C158, is the mirror of international best practices around the world on termination of employment. And when international best practices are cited, questions of ratification and domestication are not impacted. We should recall that these provisions are actually non-obstante. S. 254C-(1)(f) & (h) of the Constitution placed the dual responsibilities on the NIC to eschew unfair labour practices and to, at the same time, enthrone international best practices in their stead. Therefore, international best labour practices are enforceable in Nigeria without much ado. And international best practices otherwise called international labour standards [ILS] in labour relations are primarily deduced from ILO instruments in general, ratified or not.

Furthermore, the provisions of S. 254C-(1)(h) of the Constitution says, international labour standards are enforceable simpliciter in Nigeria while S. 254C-(2) says ratified conventions without domestication are enforceable. Thus, S. 254C-(1)(f)&(h)&(2) of the Constitution supersedes S. 12(1) of the Constitution, being non-obstante. And being positive constitutional commands aimed at revolutionising industrial relations jurisprudence in Nigeria, to align with international best labour practices, S. 254B-(3)&(4) of the Constitution was enshrined to enable consummate industrial relations law expert-judges of the NIC efficiently do this to enable Nigeria to constantly meet its obligations to the ILO and escape the previous incessant queries from the ILO for failing to apply international conventions that was the order of the day before NIC was reestablished vide the Third Alteration Act – SPDC Ltd v. The Minister of Petroleum Resources & Ors[21]. and Engr. Luke Mmamel v. IMT & Ors[22]on how and why unratified labour conventions are enforceable in the NIC. I have to point out too, that the ILO core conventions are enforceable in member states regardless of ratification by the fact of being members of the ILO. These core ILO conventions are: ILO C29, C87, C98, C100, C105, C111, C138, C155, C182, and C187. Of the original eight, to which C182 and C187 have been subsequently added, Breen Creighton[23] says:

“Read together, these eight instruments constitute the core ILO human rights standards, and form the basis of the Declaration of Fundamental Rights and Principles which was adopted by the ILC in 1998 (1998 Declaration].”

The essence of the 1998 Declaration is that members are bound to apply these core fundamental rights conventions, whether ratified or not. Incidentally, Nigeria ratified these 10 fundamental rights conventions and further 33 other conventions, making total 44 convention Nigeria ratified[24]. It must be noted that ILO C158, nicknamed the convention that guarantees security of tenure for workers the world over, though not a core convention, is also enforceable without ratification as customary international labour law or general principles of international labour law under Art 38(1)(b)-(c) of the ICJ Statute, since it meets the 15-year post-enactment universal application across the world, having been passed in 1982: 43 years ago.

In this manner, a lot of countries that have not ratified ILO C158, apply it as the mirror of international best practices. For examples, the Industrial Court of Republic of Botswana, applied it in Mapho C. Ganelang v. Tyre World Ltd[25]; the Industrial Court of Trinidad and Tobago also applied it in Bank and General Workers’ Union v. Home Mortgage Bank[26]; and the Supreme Court of the State of Georgia applied it in D.B. v. Tblisi State University[27], even though, these countries have not ratified it. Such is the currency of its universal application across the democratic world that a nation acquires pariah status for failing to apply it and S. 254C-(1)(f) & (h) of the Constitution forbids pariah status for Nigeria in the area of industrial relations jurisprudence by mandating international best practices. Nigeria’s case is more potent in that, the Constitution directly mandates the adoption of international best practices as the public policy in labour and employment relations jurisprudence. Thus, the POPA being incompatible with Art 8(1)&(3) of the ILO C158, stands damnified, as it cannot thwart the Constitution.

The South African Constitutional Court [SACC] took similar position as stated above in Leach Mokela Mohlomi v. Minister of Defence and struck down S. 113(1) of the Defence Act [44 of 1957], which is in pari materia with S. 2(a) of the POPA, but with six months, which is double the limitation period provided by S. 2(a) of the POPA, for providing absolute limitation period of six months, which it considered too short, and also that it interfered with the discretion of the courts to grant extension in deserving cases and thus, interfered with the constitutional right of access to courts under S. 22 of the South African Constitution. For these main reasons, and others that would be examined anon, the SACC struck down S. 113(1) of the Defence Act as unconstitutional.

The Kenyan High Court [KHC] took similar stance and struck down S. 13A of the Government Proceedings Act [GPA] in Kenyan Bus Services Ltd & Anor v. Minister of Transport & Ors.[28] for taking away the court’s discretion to extend time, tantamount to denial of access to courts, in respect of failure to issue pre-action notice within the 30-day prescribed. The Kenyan Court of Appeal [KCA] upheld this, though, in obiter, in Joseph Nyamamba & Ors. v. Kenyan Railways Corporation[29]. All these foreign decisions are in sync with Art 8(3) of the ILO C158, as has been explicated hereinabove and they also constitute international best practices in the area of adjudication of limitation laws. It is necessary to stress that all instances of violations of the provisions of ILO C158 amount to unfair labour practices, forbidden by the first fang of S. 254C-(1)(f) of the Constitution.

Having done with how the POPA offends Art 8(1)&(3) of the ILO C158, I move to examine how the POPA offends other provisions of the Constitution. The POPA offends SS. 254C-(1)(f)&(g) of the Constitution and the Nigerian ratified ILO C111 – Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which is a fundamental right convention, by creating discrimination in the application of a law. S. 254C-(1)(g) of the Constitution simply says the NIC shall have exclusive jurisdiction to deal with questions of discrimination, without listing factors. Since a constitutional provision must be given broad construction to accommodate more rights to citizens, this must receive the broadest possible construction – Ekunola v. CBN (2006) 14 NWLR (Pt 1000) 325 (CA), A-B and Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 (SC). Hence, this must be construed as more extensive than the other provisions of the Constitution in Chapter IV, dealing with discrimination that listed exclusive factors.

How did the POPA create discriminatory application of law? First, there are two types of public employees – those whose employment have statutory flavour and those employed under common law [master-servant] and, whose employments therefore, have no statutory flavour – Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589 (SC). Those whose employment have no statutory flavours are treated on equal basis as with master-servant in private employment, yet, they are subject to the POPA limitation period as public officers, while their private counterparts are not, with the logical and legal implication that, while such public employees suffer the restriction of their right to access court to mere three months, their private counterparts, with whom they have exactly the same right of not being entitled to statutory flavour, are entitled to five/six years limitation periods. The LA provides six years for causes of action in contracts – SS. 7(1)(a)-(b), (2), (6) & 11 of the LA and SS. 7(4) & 8 provides six and three years for specified types of torts. Likewise, the Limitation Law of Lagos State [LLLS] provides six years for contracts while the Limitation Law Ebonyi State [LLES] provides five years for contracts.

Thus, public employees employed under common law are subjected to double jeopardies of their employment, not having statutory flavour and yet, still suffer the shorter limitation period of S. 2(a) of the POPA. In addition, the POPA creates discrimination against public employees within the national workforce by allowing the three-month limitation time in S. 2(a) of the POPA to apply to only public servants on account of their social class of being public employees without provable justification. This additionally offends Art 1(a)-(b) of ILO C111, which bars discrimination on social or any other grounds.

Additionally, since the gulf between public and private employments has now been narrowed by S. 254C-(1)(f)-(h) & (2) of the Constitution, to such extent, that they are virtually the same in terms of the constitutional protections they now enjoy, there appears to be no reason anymore for those in public employment to be subjected to the inhibition of the POPA. To do that would mean that they are now inferior to their counterparts in private employments in terms of their access to courts. Likewise, there is further discrimination against public employees in their contracts with public authorities in being subjected to the three months of the POPA while other private persons have six/five years limitation periods in their contracts with public authorities. In this instance, it must be noted too that the public employees entered into the contracts of employment in their private capacities too, just like other private citizens. Why the discrimination between two private citizens entering into contracts with public authorities? There is no rational basis.

Arts 2, 3, 13(2)-(3), 15 & 19 of the ACHPRA; Arts 1,7,10,21(2) & 23(1) of the UDHR and Arts 3 & 7 of the ICESCR are also impacted by POPA. First, Nigeria ratified ILO C111, the ACHPRA and ICESCR. The Court of Appeal recently construed the ICESCR with approval as a ratified convention in La Casera Company Plc v. Ganghadaran [unreported Appeal No. CA/L/1059/2016 -delivered Jul 9, 2025] in relation to employment dispute. So, the three international conventions are applicable as positive laws in Nigeria in virtue of S. 254C-(2) of the Constitution because they have labour related provisions thus, coming within the contemplation of S. 254C(1)(b) of the Constitution. In addition, the ACHPRA has been domesticated. These conventions individually domesticated the provisions of S. 17(2)(a) & (e), 3(a)-(b) of the Constitution.

S. 17 of the Constitution, is ordinarily not justiciable, but justiciable on some specified conditions as guaranteed under S. 6(6)(c) and Item 60(a) of the Second Schedule, Part I, Exclusive List of the Constitution – Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580 (SC) 664, E-G. The NIC, by virtue of SS. 254B-(3)&(4) and 254C-(1)(b), (f)-(h) & (2) of the Constitution, has the jurisdiction to apply any statute or law that impacts labour relations and to apply international labour conventions and international best labour practices and also, to eradicate unfair labour practices. This must include the provisions of S. 17 of Chapter II of the Constitution that impact labour relations, the provisions, being laws, and the duty to eradicate unfair labour practices granted in a broad manner without definition, is embracive of the provisions of S. 17(1), (2)(a), (c) (e) & (3)(a)-(b) of the Constitution that elucidate what unfair labour practices are.

The NIC is therefore an institution created to apply the provisions of these conventions impacting industrial relations [Art 1 of the ACHPRA] and the provisions of S. 17(1)(a), (c) (e) & (3)(a)-(b) of the Constitution impacting industrial relations thus, meeting the requirements of SS. 6(6)(c), Item 60(a) of the Second Schedule, Part I, Exclusive Legislative List, and S. 254C-(1)(b) of the Constitution. Nevertheless, I note that the provisions of these conventions, which are all latter than the POPA, are enforceable in their individual rights with or without reference to Chapter II of the Constitution.

In construing the provisions of the above conventions, the provisions of each convention shall be given composite construction – Wilson v. AG Bendel (1985) 1 NWLR (Pt. 4) 572 (SC) to the effect that “the provisions of a statute must be construed conjunctively and not disjunctively.” First, I will summarise their provisions individually, drawing attention to their similarities. I start with the provisions of ACHPRA. Art 2 of the ACHPRA says any of the rights guaranteed in the ACHPRA shall be enjoyed “without distinction of any kind” or any opinion whatsoever or any status whatsoever and Art 3 says every individual shall be equal before the law and entitled to equal protection of the law. This immediately bars the sort of discriminations itemised earlier above, which the POPA and its application imposed on the public employees and corresponds with the forgone interpretation of S. 254C-(1)(g) of the Constitution. Arts 13(2)-(3) of the ACHPRA guarantees the right of equal access to public services and public facilities in strict equality of all persons before the law, while Art 15 says all persons shall have right to work under equitable and satisfactory conditions.

The imposition of absolute limitation period of just three months with the further burden on public employees to give elastic time for the public authorities to negotiate and the various threats of punitive costs, apart from conflicting with Art 8(1))&(3) of the ILO C158, cannot by any standard be adjudged equitable and satisfactory conditions of work, being discriminatory and unfair, and in breach of good faith. Art 19 of the ACHPRA crowned these provisions by asserting that all persons are equal and shall have the same right; and that “nothing shall justify the domination of a people by another.” Public authorities/public officers oppress public servant-victims of their acts. It is important to note that Arts 15 guarantees right to work “under equitable and satisfactory conditions”. The rights guaranteed in Art 15 are purely workplace rights and take along with them the other provisions of the ACHPRA cited to have full fulfilment.

Arts 3 of the ICESCR enjoins the state parties to ensure equal economic rights to all persons while Art 7 protects “right of everyone to just and favourable conditions of work”. It lists out some examples which it says are particularly important. But the list is not by that, exhaustive and therefore, incorporates all the rights guaranteed in Art 15 of the ACHPRA. Arts 1,7,10,21(2) & 23(1) of the UDHR guaranteed all the rights guaranteed by Arts 2, 3, 13(2)-(3) 15 & 19 of the ACHPRA as summarised hereinbefore. These rights are also guaranteed by S. 17(2)(a), (c), (e) & (3)(a)-(b) of Chapter II of the Constitution. One can see that these provisions of the ACHPRA are the manifestation of the labour rights and equality of access to courts guaranteed by S. 17 of the Constitution. The Supreme Court in Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1 (SC) 35, D-E; 44, B; 36, G-D, 35-37, G-B held that public authorities are persons and therefore, entitled to take the benefits of S. 2(a) of the POPA. Now, S. 2(a) of the POPA gives absolute three months to the persons of public authorities while S. 2(d) says the claimant-victim of the actions of public-authorities-persons must give the public authorities sufficient time to settle before filing action in court at the threat of a punitive cost!

Since public authorities are persons like the victims of their actions, going by Arts. 2, 3, 13(3) 15, 19 of the ACHPRA; S. 17(1), (2)(a), (e), (3)(a)-(b) of the Constitution; and Arts 2(2), 3, 4 & 7 of the ICESCR, special privileges for public authorities as contained in the POPA are abolished, as both persons on the two sides are to be treated on equality basis and both must have easy access to courts. Apart from the fact that the provisions of S. 2(a) & (d) of the POPA are self-contradictory, they also command impossibility and as both cannot be reconciled, they cancel themselves. They also show that the motive behind the POPA is not altruistic at all and that, it is Petitions of Right Act [PRA] masquerading as limitation law. By this, it thus clearly interferes with the right of easy access to courts. This scenario is definitely an unjust and unfavourable conditions of work and thus, contrary to Arts 7 of the ICESCR and 15 of the ACHPRA, S. 17(1), (2)(a), (e), (3)(a)-(b) of the Constitution, and therefore, constitutes unfair labour practice contrary to S. 254C-(1)(f) of the Constitution.

You cannot insist that a person must file action urgently or else, be barred, and yet, insist at the same time that the person must give you sufficient indeterminable time to negotiate. This becomes particularly poignant when viewed against the backdrop of the red-tape of public service, which makes it practically infeasible to expect a matter, such as termination of employment in the public service with graduated procedure of termination, which goes through the layers of regimented committees and procedures, starting from the place of primary assignment of the terminated employee, to an independent body, called the Civil Service Commission [CSC] and in other cases, to boards etc., to be settled within three months of the termination and the terminated public employee recalled or if not settled, told at the end that settlement failed within the three-month grace to file action. It is practically impossible and therefore, the two provisions, by reasons of their mutual incongruities, cancel each other, leaving the claimant free of the burden of S. 2(a) & (d) of the POPA, making S. 2(b)-(c) spent – Chrislieb Plc v. Olagbaju (2004) 4 NWLR (Pt. 863) 342 (CA) 361, F-G; Covalent Oil & Gas Services Ltd v. Ecobank (Nig.) Plc (2021) 10 NWLR (Pt. 1784) 252 (SC); Soyannwo v. Akinyemi (2001) 8 NWLR (Pt. 714) 95 (CA) 121, H-B.

Furthermore, when S. 2(a) of the POPA is construed with subsections (b), (c) & (d), imposing a sort of punitive costs on the claimant for instituting action against public authority, the conclusion cannot be farfetched that the POPA is disguised PRA cloaked in the robe of limitation statute. The POPA, being discriminatory and un-evenhanded, is therefore, not a beneficent statute like limitation law, and must be strictly construed. The sole aim is to place hurdles, like SS. 3&4 of the PRA, in the way of the victim-public employees and all citizens to access courts on violation of their rights by public authorities/officers and the torts committed against them by public authorities/officers. The only difference is that while the Attorney-General [AG] is given the lever to directly restrain litigation against public authorities in the PRA, both the AG and the courts are discreetly saddled with this duty by S. 2(d) of the POPA by means of commanding the victims of public authorities actions to do the impossible of both giving elastic time to the public authorities to negotiate with them at a threat and at the same time barring the action if the negotiation fails after three months. This type of un-evenhanded negotiation offends Art 8(1) of the ILO C158, which prescribes appeal to an impartial body, and not to the partial employer. In Bakare v. AGF & Ors. (1990) 5 NWLR (Pt. 152) 516 (SC) the Supreme Court held that:

“The provisions of the Petitions of Right Act to the extent that they purported to prevent an aggrieved party from taking direct action in court are inconsistent with section 6(6)(b) of the 1979 Constitution and consequently as from 1979 the Act became null and void by virtue of section 1(3) of the 1979 Constitution…’ – [528, E]

The provisions of sub-section (6)(b) of section 6 and sub-section (1) of section 33 of the 1979 Constitution read together, vest in a person an unabridged right of access to a court established under Section 4 of the Constitution or any tribunal, having jurisdiction in the matter, for the determination of any question as to his civil rights or obligations arising between him and any government within the Federation or any authority or any other person. Section 33(1) of the Constitution in particular nullifies any law that accords to any government, be it Federal, State or local government, or any person exercising authority or power on behalf of any of them, the power to abridge the right of any person to have access to court to sue such government or person without a fiat first being sought and obtained.” – [540, C-F]

When S. 2(a) of the POPA is construed with S. 2(b)-(d), especially with 2(d), it is inescapable to arrive at the conclusion that the POPA aims, like the PRA, to “prevent an aggrieved party from taking direct action in court” and “abridge” “direct access” to court, and therefore, inconsistent with 6(6)(b) of the Constitution and void on the authority of Bakare v. AGF. Note that none of the previous precedents on POPA before now, to my knowledge, has holistically construed the provisions of S. 2(a) of the POPA with 2(b)-(d), especially with 2(d). They were all centred on S. 2(a) in isolation, whereas, had keen examination of the whole provisions been done, different outcome would most probably have ensued. This thus constitutes another distinguishing factor. What comes out of S. 2(a)&(d) of the POPA is actually worse than the scenario painted of SS. 3 & 4 of the PRA in that, the victims of public authorities’ actions are given a paltry and absolute three months grace to access courts from the occurrences of the causes of actions and yet, deviously commanded at the same time, to give the same public authorities elastic time to negotiate!

And note that these victims must allow the negotiations to take place before filing actions in courts! This amounts to practically tricking the victim to abandon the need to file action timeously and at the same time punishing him with a total bar to access courts, once the three months elapsed and the negotiation fails, as was held in Aba v. Board of Directors NIPOST & Ors [supra] 494, E: “the appellant clearly had a valid claim but pursued the path of negotiation until his right of action was taken away by section 59(1) of the NIPOST Act, 2004.” S. 59(1) of the NIPOST Act is in pari materia with S. 2(a) of the POPA. Note too that S. 20 of the NICA is the inbuilt statute for exploration of ADR mechanisms in the settlement of employment disputes in Nigeria. In furtherance of this, the Constitution in S. 254C-(3), gives the NIC power to create Court-connected ADR Centre, accordingly established with well-trained labour law neutrals, who are highly skilled in the major ADR practices, to mediate at arm’s length between the employers and the employees. The ADR mechanism inbuilt in S. 2(d) of the POPA is not at arm’s length, likewise the ADR mechanism inbuilt in the policy of pre-action notices rampant in the establishment statutes of most public authorities in Nigeria. They are in conflict with Art 8(1) of the ILO C158.

They prevent arm’s-length negotiations between unequal parties by asking the victims to go cap-in-hand begging their traducers to negotiate with them. This is not the practice in the established democracies around the world. The international best practices around the world are to establish independent bodies which employers and employees can approach for ADR settlement of individual employment disputes at initial stage, free of charge – ACAS in the UK, of which it is said of its main objects: “Acas gives employees and employers free, impartial advice on workplace rights, rules and best practice. We also offer training and help resolve disputes[30]”, and ACAS also says about itself:

“We’re Acas, the Advisory, Conciliation and Arbitration Service.

We work with millions of employers and employees every year to improve workplace relationships. We’re an independent public body that receives funding from government[31].”

It is the same in South Africa[32]. The requirement of pre-action notices and limitation laws like the POPA have generally been frowned upon around the world and regarded as preventing accountability and transparency by public authorities, apart from blocking access to justice and interfering with the discretionary powers of courts to extend time in deserving cases - Leach Mokela Mohlomi v. Minister of Defence [supra] and Kenyan Bus Services Ltd & Anor v. Minister of Transport & Ors. [supra]. Where the NIC did not send the cases to the NIC-ADR Centre, but ordered that parties should negotiate with themselves because they specifically so requested, their lawyers ensure arm’s-length negotiation and the Court supervises it by putting a stop to it if the negotiation is being employed as a delay tactics. Additionally, it is important to note that not all industrial relations cases are suitable for negotiations[33] and the pre-action notices and POPA did not make any allowance for these thus, infringing a fundamental tenet of industrial relations dispute resolution and also, transparency and accountability. The court determines the suitability of negotiations based on the peculiar facts of each case. That is the essence of S. 20 of the NICA.

For example, where issues of whistleblowing are involved or alleged egregious violations of fundamental employment rights in an insidious and secretive manner that is becoming widespread, the court might decline to order ADR and hear the case to set down a firm precedent, sending strong warning to the stakeholders[34]. The non-arm’s length negotiations implied in S. 2(d) of the POPA and pre-action notices interfere with the discretion of the NIC to sieve cases good for ADR, as enjoined by S. 20 of the NICA and therefore, the POPA is void. It is also important to note that by virtue of S. 254C-(1)(f)-(h) & (2) of the Constitution, which is applicable to the resolution of all labour cases, and that limitation laws or pre-action notices do not apply in constitutional cases, it might be difficult to justify the continued application of the POPA and pre-action notices in employment cases, which are now constitutionally flavoured - Muhammed v. A.B.U. Zaria (2014) 7 NWLR (Pt. 1407) 500 (CA) and; Oluwabukola v. AG Lagos State (2022) 2 NWLR (Pt. 1815) 499 (CA) 590, A-C.

All this shows that the general limitation laws and pre-action notices for the assumed purposes of negotiations that are not at arm’s-length are not in tune with the international best practices in labour relations and that; for the meantime, till NASS establishes another independent ADR mechanisms for settlement of individual employee’s industrial relations disputes, the inbuilt S. 20 of the NICA and the NIC ADR Centre established pursuant to S. 254C-(3), are the laws and ADR schemes that apply to ADR practice in individual employment relations disputes, distinct from trade disputes, which already has a separate independent ADR scheme outlined in S. 4-14 of the TDA. Thus, S. 2(a) & (d) of the POPA and the various requirements of pre-action notices are void to the extent that they sought to be applied to NIC on the authorities of Art 8(1) of the ILO C158, mandating impartial body for settlement of individual employees’ employment disputes and S. 254C-(1)(b), (f)-(h) & (2) of the Constitution and the authority of the Supreme Court in Geepee.

When the scenario painted above of community construction of S. 2(a) & (d) of the POPA is brought under the scrutiny of S. 254C-(1)(f) of the Constitution and Art 8(1)&(3) of the ILO C158, which demand impartial body to settle employment disputes, fair labour practices, and reasonable time for employees to file actions, the scenario becomes a classic example of unfair labour practice. The scenario also violates Arts 13(2)-(3) & 15 of the ACHPRA; 3 & 7 of the ICESCR and, 17(2)(a), (c), (e) & 3(a)-(b) of the Constitution. The whole of the POPA is therefore void for being inconsistent with the Constitution, the ACHPRA and ICESCR, which are latter domesticated and ratified conventions respectively, therefore override the inconsistent POPA, which is an earlier statute – Ziza v. Mamman (2002) 5 NWLR (Pt. 760) 243 (CA) 265, B-C. Since it is the whole of the POPA that is incompatible, the POPA is impliedly repealed – Barry v. Eric (1998) 8 NWLR (Pt. 562) 404 (CA) 417, D-F and Olu of Warri v. Kperegbeyi (1994) 4 NWLR (Pt. 339 (SC) 438-439, G-A.

The insistence that public employees must appeal to only the employers for settlement and must additionally accommodate sufficient time for public authorities to negotiate before filing cases, and the absence of discretion in courts to extend time to accommodate the time wasted on failed negotiation and, the public authorities taking unconscionable advantage of this, are definitely a classic case of bad faith on the part of public employers and therefore, constitute unfair labour practice.

Things are known to be good or bad, fair or unfair on the basis of comparative analysis or comparative experiences. Measurement of what is fair or unfair involves directly the invocation of proportionality test. The historical antecedents of the POPA show that its continued existence in Nigeria is a classic case of unfair labour practice. If we recollect, the POPA was an offshoot of the British Public Authorities Protection Act, 1893 [PAPA] which was originally applicable in Nigeria as a statute of general application. S. 1(a) of the PAPA granted six months limitation period.

That was the original applicable limitation time granted for actions against public authorities that was originally applicable in the colony of Nigeria and Britain as statute of general application. It was enacted in 1893. But in 1916, the PAPA was reenacted in Nigeria with a more punitive fang by reducing the six months limitation period to three months, while the six months of PAPA was retained in Britain! Note that at this period in time, illiteracy was extremely high in Nigeria with near zero literacy level compared with the British having the highest literacy level in the world with existence of Magna Carta and the British citizens’ general awareness of their rights and the legal protection these rights afforded, compared to the almost total Nigerians’ unawareness their rights; yet the British colonialists found it expedient to enact a more draconian POPA without an iota of explanation, the malevolent motive cannot be debated. Later in 1936, the UK Parliament increased the limitation period for her citizens, from six months to twelve months, and in 1954, completely abolished it, but all the while, left the POPA intact in Nigeria! Halsbury’s Laws of England[35] has this to say about the abolition of the PAPA: “Since 4^th June 1954 the periods of limitation applicable to actions against public authorities are the same as those applicable to similar actions against private persons.”

Evident from the quotation is that the English recognised that the PAPA was a discriminatory and unconscionable statute. From this and the conduct of the British colonialists in refusing to ease the burden of POPA on Nigerians, further compounds the stigma on the POPA in Nigeria as discriminatory law against the citizens simpliciter and, as a statute that has its origins steeped in discrimination on the basis of race and social class, and as a statute that peculiarly singled out public servants for discrimination on the basis of their social class. Considering that Arts 3, 13(2)-(3) & 15 of the ACHPRA [see also Arts 3 & 7 of the ICESCR] guaranteed in absolute terms strict equality of access to public services [courts] and the right to work under equitable and satisfactory conditions, which guarantees are a domestication of S. 17(1), (2)(a), (c), (e) & (3)(a)-(b) & (e) of the Constitution, the POPA cannot continue its existence in Nigeria.

Following the British example, the international best practice regarding limitation laws, especially statutes in pari materia with POPA in all the British former colonies and contemporary African nations, is that they all either abolished the POPA-like statutes or their courts struck them down - Leach Mokela Mohlomi v. Minister of Defence [supra]. India abolished its colonial Public Authorities Protection Act in 1963 with the enactment of the LA, 1963, which removed the privilege granted the public authorities in the colonial Public Authorities Protection Act and made the limitation times prescribed therein apply across the board to all citizens and public authorities alike. This was achieved in Nigeria in SS. 1(1), 2 and 4(a)-(b) of the LA, which however appeared not to have received judicial attention since 1966. SS. 1(1) and 4(a)-(b) of the LA provide:

“1. Application to the State

Except as in this Act otherwise expressly provided and without prejudice to section 4 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.

2.Acquiescence

Nothing in this Act shall affect an equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.

4.Saving for other limitation enactments

This Act shall not apply to –

an action for which a period of limitation is fixed by another enactment; or
an action in which a State authority is a party and for which, if that State authority were a private individual, a period of limitation would be fixed by another enactment.”

S. 7(a)-(b) of the LA specifically provides for simple and quasi-contracts, whereas, S. 2(a) of the POPA does not specifically provide for any contract in its at-large language, which is coterminous with torts. It follows that S. 2(a) of the POPA and S. 7(a)-(b) of the POPA do not cover the same field and are therefore not conflicting. By specifically providing for simple and quasi-contracts in S. 7(a)-(b) of the LA, parliament demonstrates its intention that the POPA was not meant to apply to contracts but to only torts because, implied repeal only comes about when two statutes cannot be accommodatively construed to live side-by-side – Olu of Warri v. Kperegbeyi [supra] 438-439, G-A. It means, in effect, that before the coming into effect of the Third Alteration Act, the POPA was not applicable to contracts of public employment. As contracts of public employment were deemed as contracts with statutory flavour for those employed with statutory flavours [a sort of special contract], it means S. 2 of the LA was the applicable law, since the LA excludes special contracts and the POPA excludes all contracts, while S. 7(a) of the LA/State versions was the applicable law for those employed under common law without statutory flavours. Now that all contracts of employment are sui generis, the POPA does not apply at all, while SS. 2 & 4(b) of the LA continue to have analogical effects. How? There comes SS. 1(1) & 4(b) of the LA.

SS. 1(1) & 4(b) of the LA, in essence, say any statute that treats a state authority like a private individual shall supersede. In a nutshell, SS. 1(1) & 4(b) of the LA constitute a proviso to S. 4(a) and it decrees equality of treatment between the state and citizens in terms of limitation periods on actions. The Court of Appeal arrived at similar conclusion in the construction of similar provisions of S. 42 of the Limitation Law of Ebonyi State [LLES] in Uduma v. Attorney-General of Ebonyi State & Ors[36]. S. 42 of the LLES provides:

“Notwithstanding anything contained in any other enactment or rule of law to the contrary, all actions to which this law applies, howsoever arising against the state or against any State Public authority or officer thereof or any person acting in the stead of such public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual.”

In construing the above provisions with special emphasis on the bold portion, the Court of Appeal held:

“The import of the above provision, as rightly suggested by the learned counsel for the Appellant, is that Limitation of time in actions against Public Officers should be calculated as the same period of Limitation against private individuals.

In other words, the discrimination in the calculation of limitation period which was previously in favour of Public Officers has been removed.”

SS. 1(1) & 4(b) of the LA confirms the above construction by providing that: “this Act shall apply to proceedings by or against a State authority in like manner as if the State authority were a private individual” and another statute which treats a state authority like a private individual shall supersede. The import is that since Art. 8(3) of the ILO C158 makes no distinction between the State authority, otherwise called public authority, and private employers. It gives a blanket provision, it ordinarily supersedes the POPA, which creates a discriminatory privilege for State authority/public authority against public employees and thus, impliedly repeals the POPA – Olu of Warri v. Kperegbeyi [supra]. Since there is currently no inbuilt limitation law specifically designed for the sui generis contracts of employments [public and private] and the sui generis Art 8(3) of the ILO C158 dictates a statute with reasonable time, S. 2 of the LA comes alive and statutorily activates the common law acquiescence and laches as statutory provisions, which correspond with the dictates of Art 8(3) of the ILO C158. This is apart from the previous holding that by virtue of Art 8(3) of the ILO C158, the POPA is unconstitutional.

Clearly, in whatever way one looks at it, it is clear that the POPA is not alive either by dint of the LA as explained above or because it does not meet the requirements of the ILO as a limitation law in industrial relations. In South Africa, the SACC, the equivalence of the Nigerian Supreme Court, struck down similar statute like S. 2(a) of the POPA [S. 113(1) of the Defence Act] in the celebrated case of Leach Mokela Mohlomi v. Minister of Defence [supra] in the following words:

“What counts rather, I believe, is the sufficiency or insufficiency, the adequacy or inadequacy, of the room which the limitation leaves open in the beginning for the exercise of the right. For the consistency of the limitation with the right depends upon the availability of an initial opportunity to exercise the right that amounts, in all the circumstances characterising the class in question, to a real and fair one.”

From the observations made on S. 2(a) & (d) of the POPA, it is clear that no initial room and fairness were afforded the victim under POPA to approach Court when he is to file action within three months and at the same time threatened with punitive costs if he does not give the public authority sufficient time at large to negotiate before filing the same action! And the negotiation is done with the employer, contrary to Art 8(1) of C158. In striking down similar statute in Kenya [S. 13A of the GPA], it was held in the celebrated case of Kenyan Bus Services Ltd v. Minister of Transport [supra] that:

“The general worldwide consensus is that a shorter limitation period for the state cannot be justified. The reach of the Government is far and wide and in an era of accountability or transparency ushered in by the Constitution, the State must abide by the same standards required of mere mortals.”

That is what SS. 1(1) & 4(b) of the LA and Art 8(1) of C158 dictate, of which the POPA suffers a deficiency in its discriminatory privilege protection of the public officers/authorities. It is necessary to draw attention to the fact that S. 113(1) of the South African Defence Act that was struck down as unconstitutional, provided absolute six months, which was adjudged inadequate for the South African citizens to approach courts, compared to the three months under POPA. It is also necessary to draw attention to the fact that in both the South African case [Leach Mokela Mohlomi v. Minister of Defence] and the Kenyan Cases: Kenyan Bus Services Ltd v. Minister of Transport and Joseph Nyamamba & Ors v. Kenyan Railways Corporation [supra], the issues of existences of other limitation laws with longer limitation periods within the countries and the same socioeconomic backgrounds were considered as part of the reasons to arrive at the decisions to strike down the statutes. And most importantly, the removal of courts’ discretion to extend times in deserving cases was regarded as affront to the inherent powers of courts to do justice.

This stance corresponds with Art 8(3) of the ILO C158, which decrees that courts must have the vires to determine reasonable time by taking into consideration the surrounding circumstances, which is the reason S. 2 of the LA makes provisions for acquiescence and laches in the following words: “nothing in this Act shall affect an equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.” Thus, S. 2 of the LA/State versions with in pari materia provisions, and which are coterminous with Art 8(3) of the ILO C158, are now the applicable municipal laws, since contracts of public employment have transmuted from the mere adhesive contracts with statutory flavour to which precedentially POPA was debatably held to apply, to the now extremely complex sui generis contracts, to which POPA is not applicable on the authority of the Supreme Court’s decision in Geepee and S. 254C-(1)(b) of the Constitution. To this extent, the earlier NIC’s ratio in Ekwo v. INEC [supra] that S. 7(1)(a)-(b), (2), (6) and 11 of the LA/state-versions were the applicable laws, is accordingly overruled as arrived at per incuriam. They were wrongly construed without due cognisance of the implication of sui generis contracts, which contracts of employment now are, which they did not cover.

In this wise is situated 35(1) of the LA, which exempts persons under disabilities from the limitation periods provided until the expiry of the disabilities. As what constitutes disability was not defined, it must be taken in its broad sense to mean varieties of reasonable circumstances that prevent suitors from filing actions within the limitation times prescribed. This definitely includes, such as genuine negotiations in the intervals, since negotiations are ordinarily without prejudice to avoid bad faith – Acmel (Nig.) Ltd. v. FBN Plc (2014) 6 NWLR (Pt. 158) (CA) 180, C-D. It implies the courts have discretions to determine the reasonability of the time the case was eventually filed, more particularly so, in employment cases. This is in tandem with Art 8(3) of the ILO C158 and by this, fairness is brought to play in the application of the limitation periods contained in the LA.

Thus, it comes to be that only laches and acquiescence and such equitable principles are the only factors that could warrant the strict application of the limitation times provided. This is in accord with the origins and policy of statutory interventions in limitation of times, which was rooted in codifying laches and acquiescence into times certain, but with allowance to do justice in accordance with the peculiar circumstances of the individual cases. Hence, the retention of the proviso as to exemptions in cases of disabilities, implies that any statute providing strict limitation without any exemption is immediately an expropriatory statute lacking the beneficial status of limitation statutes and must therefore be construed strictly and declared as interfering with the power of the courts to do justice: such is the POPA.

It is noted that the proviso to S. 2(a) of the POPA provides a Pyrrhic exemption for the period of incarceration for a convict for causes of action that occurred while he was such a convict. First, the exemption is not broad-based but for only convicts and thus, discriminatory by placing the disability of a convict over and above those of the law-abiding citizens. Hence, a law-abiding citizen, who was incapacitated to file a suit within three months because he was hospitalised in the interval as a result of the injury sustained from the torts of a public authority/officer or a public employee, who did not file suit because he complied with S. 2(d) of the POPA to engage in negotiation with a public authority is not catered for. There is no better example of discriminatory application of the law on law abiding citizens and this constitutes unfair labour practice on the public servants.

In the second place, one wonders how an incarcerated convict could acquire a cause of action to which the POPA would apply while he was in prison. And thirdly, one wonders too, why the POPA provides in advance for a convict which it does not know for certain that he would have a cause of action while in prison and left out the law-abiding citizens against whom public authorities actions have actually injured and incapacitated from filing actions timeously by reason of the injuries. And I wonder whether hospitalisation is not a sort of involuntary imprisonment as much as being goaled, except with respect to conviction for crime. Both are involuntary incarcerations and the case of the innocent victim of torts is more deserving of attention than that of convict: why the discrimination? The foregoing provision that the victims of public authorities’ actions must give the public authorities adequate non-specific time within the three months to explore settlement and the simultaneous insistence that, once the action is filed outside the three-month, it expires, are a pointer to the fact that the POPA is a study in how to obey impossibilities and therefore, totally unreasonable and unjustifiable.

In this wise, I wish to point out that it is not actually the shortness of the three months that is the only problem with the POPA but the facts that: it creates other hurdles in S. 2(b)-(d) together with equal bargains, which the victims have to scale, the cumulative effects, are concretisation of disguised attempts to prevent access or easy access to courts, accentuated by the fact that the POPA was not specifically designed as employment relations statute, but a general statute that seek to grant privilege in favour of public authorities/officers against the whole world. There are other jurisdictions which provide three months like the POPA in statutes specifically designed, with telling titles, for employment relations [the UK with ACAS, South Africa with CCMA[37], and Trinidad and Tobago with Labour Arbiter[38]] but, they have inbuilt mechanisms that make the workers acutely aware of their rights and there are no disguised hurdles to prevent the workers from filing cases within time, which would later be taken advantage of capriciously. They also retained court’s discretion to extend time in deserving situations.

The UK has a public-funded independent body: Advisory, Conciliation and Arbitration Service [ACAS] which advises in and mediates employment disputes between workers and employers and also appoints arbitrators with the workers and employers’ consent to arbitrate and render binding decisions free of charge to both sides[39]. ACAS informs the parties of their relative rights. Thus, by this arrangement, workers are acutely aware of their rights in the UK. It is the same thing in South Africa, Trinidad and Tobago. And there are neither disguised hurdles that prevent the employees from approaching the employment tribunal/labour court immediately after the failed conciliation or non-satisfactory arbitration, which the employer can capriciously take advantage of nor is there any special privileges for the public employer in the nature of special protection of public authorities in the POPA.

There are various limitation periods specifically provided for different employment disputes ranging from three months to six months, but all have provisions for extension of time in special circumstances[40] and these are all provided in statutes unambiguously designed for employment relations and so titled thus, satisfying the sui generis factors for applicable statutes as prescribed by the Supreme Court in Geepee. And it is important to note that when ACAS ADR is in session, the limitation time freezes till its completion[41]. All these are fully in tandem with Art 8(1)&(3) of the ILO C158 and in consonance with evenhandedness, fair labour relations and good faith, and thus, in accord with S. 254C-(1)(f) of the Constitution.

While the limitation time is as short as the three months in the POPA, it is clear that it yet guarantees sufficiency, fairness and reasonability because by the interposition of free ADR advisory services and free arbitration, workers are keenly aware of their rights and are not inhibited by lack of funds to file actions with the arbitral bodies in the first instance, unlike in Nigeria, where the public workers are forced by the POPA and pre-action notices to go cap-in-hand to their traducers to beg for negotiation, contrary to Art 8(1) of the ILO C158. And where, as in this action, that both POPA and pre-action notice is pleaded, the degree of oppression becomes unfathomable. And in some cases, the period of pre-action notice is as long as the three months of the POPA and yet, the public authority is still entitled to the protection of the POPA without discount! – OAU Ile-Ife v. R.A. Oliyide Sons Ltd (2001) 7 NWLR (Pt. 712) 456 (CA), 472, B-C, where it was reported that S. 46(1) of the OAU Act stipulates three-month pre-action notice, yet, being public authority, OAU is still entitled to the protection of the three-month time bar of the POPA!

When this is coupled with the fact that public workers are not generally paid living wages in Nigeria unlike their counterparts in the established democracies, the insufficiency of the doubtful three months of the POPA becomes more poignant, as this suggests that a worker would need time to source money or get a lawyer that would handle his case pro-bono or agree to handle it, in the interim, free but to recoup if the claimant wins. We see these on daily basis in the NIC. Legal Aid Council is not of much assistance, as its definition of poverty is based on the national minimum wage – S. 10 of the Legal Aid Act. Whereas, in other countries, free independent arbitrators, as has been shown earlier, would have solved the problem of poverty. Is it reasonable in the Nigerian circumstances, compared with the other countries, as painted above, to say there is adequate time for a public servant to file action in court within the three months of the POPA hedged about by hurdles against the victim public employees? The answer is no. This is particularly so, if we recall the possibility of additional pre-action notice without discount. Similar inimical factors prompted the SACC in Leach Mokela Mohlomi v. Minister of Defence [supra] to utter these memorable words in striking down similar statute in South Africa:

We can see from the above that the sort of injustices arising from the POPA are absent in Britain and South Africa, even though, the limitation times are relatively short like in POPA, but have buffers that create acute awareness in workers, guarantee evenhandedness, and easy access to courts and yet, retain courts’ discretion to extend time in deserving cases thus, preventing injustices, which are perfectly attuned to the requirements of Art 8(1)&(3) of the ILO C158. This shows that ILO member-nations make their labour laws to attune with ILS. They accord with the paternalistic model of modern labour law in favour of workers and reflective of Arturo Bronstein’s [supra] famous statement that:

“The goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time.”

A position which the Court of Appeal endorsed in Sahara Energy Resources Ltd v. Oyebola [supra]. Therefore, the role of labour courts around the world, being hybrid courts, is not to determine the strict legal rights of the immediate parties, as in commercial cases in common law courts, but must take into cognisance the impacts of its decisions on the overall economy and the larger workforce. So, labour courts, as socioeconomic courts, take into account such factors which the common law courts may count as irrelevant/sentimental, so far, facts support the inferences – SS. 13-19 of the NICA. No wonder industrial relations courts award damages for ruffled feelings, mental agonies and psychological traumas. In essence, the core duties of industrial relations courts around the world, as a sui generis part of the judicature, are: to sustain economic prosperity and ensure social stability of the nations through their specialist adjudications of industrial relations cases. It is for this reason that S. 10(3)(a) of the Industrial Relations Act [IRA] of Trinidad and Tobago expressly provides that:

“Notwithstanding anything in this Act or any other rule of law to the contrary, the Court in the exercise of its powers shall–

make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole.”

Labour courts around the world take this power for granted. It is the international best practice. In Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516 (SC) the Supreme Court observed on the facts of the case in which POPA was pleaded thus:

“The defendant has succeeded on technicality, which is not only undeserved but also exposes the injustice in the protection of the public officer. It is unconscionable that a public officer should be deprived of a remedy he ordinarily would have enjoyed merely because the injury was caused by another public officer, where both were lawfully carrying out their lawful duty. Again, the public officer was unable to bring action within the prescribed period because the defendants were undertaking his treatment in accordance with his conditions of service. I think the 2^nd and 3^rd respondents should review the case with especial sympathy in the interest of public service and the morale of serving officers, and pay the plaintiff whatever is due to him… [563-567, H-A]

‘The court must apply the law without regards to sentiments as the court can only do what the law permits.” – [528, F]

Going by the last sentence above, the Supreme Court was bound to dismiss the case and it did. That is the position of common law, which is not the forte of the hybrid labour court that the NIC is, which, as a matter of international best practices, must consider the socioeconomic impacts of its decision before giving it, and for which reason, it is blessed with ample powers by S. 254C-(1)(f)-(h) & (2) of the Constitution, SS. 12(2), 14-19 of the NICA, to do a lot more than the High Court can do. From the facts revealed above in the instant case, NIC’s decision must per force of law be different because of the sui generis nature of labour law, which takes into consideration questions of unfair labour practices, socioeconomic impacts, which must be remedied by international best practices. The Supreme Court found in the above case that the conduct of the public authorities in raising POPA, which it considered technicality, against the victim of their tort, was injustice and that, failing to give justice to the victim was inimical to the morale of the entire public workforce and appealed to the authorities concerned in “the interest of public service and the morale of serving officers” to review the case with a view to giving justice to the victim and dismissed the case because, there was no power in it to do more. Were the facts to present themselves in NIC today, NIC’s decision must be different, when the morale of the entire public service and the socioeconomic dimension are figured in with international best practices, in tune with the sui generis nature of employment dispute adjudication in industrial courts – Geepee.

Be that as it may. Going further by the Supreme Court’s recent decision in Geepee, that a cause of action falling under sui generis is governed exclusively by its own inbuilt international conventions, customs, cognate municipal statutes, practice and procedure, the POPA actually has no place in the NIC, being a general law not meant specifically for employment relations, but for general protection of public authorities/public officers, for which reason, it is incompatible with Arts 8(1)&(3) & 12(1)(a)-(b) of the ILO C158, which insist on appeal to neutral bodies, with flexible limitation time, and making the payment of terminal benefits compulsory at the point of exit, which must include severance and invalidity benefits. POPA’s position as a general procedural law is far worse than that of SCPA, which the Supreme Court held was not applicable in admiralty cases because, admiralty is sui generis, while the SCPA deals with service of processes, which was the issue in casu, the POPA does not even deal with anything connected with labour relations.

It is also incompatible with S. 12(2)(a) of the NICA, which gives the NIC the power to regulate its practice and procedure only subject to the NICA and the rules made under it, the POPA, which sought to regulate NIC’s procedure in relation to limitation of action, is unknown to the laws regulating NIC, as enjoined by S. 254C-(1)(b) of the Constitution and S. 12(2) of the NICA. Recognising the effect of the sui generis nature of S. 12(2) of the NICA, as nullifying the applications of general procedural laws, the same S. 12(2)(b) specifically made the Evidence Act applicable in NIC but with a proviso that it could be departed from in the interest of justice. The NICA did not in the same manner save the POPA and statutory provisions relating to pre-action notices, which are procedural statutes, and are contrary to Art 8(1)&(3) of ILO C158. The exclusio unius rule applies against POPA and statutory requirements for pre-action notices in these general non-labour statutes. The reference to any other statute in S. 12(1) of the NICA must be read in context to mean any statute relating to industrial relations in view of S. 254C-(1)(b) of the Constitution and the provisos in the subsequent provisions of S. 12(2)(a)-(b) of the NICA.

This must be so because, the NIC has no jurisdiction to apply the POPA, by virtue of S. 254C-(1)(b) of the Constitution, which gives NIC exclusive jurisdiction to interpret and apply only statutes “relating to labour, employment, industrial relations, workplace”, the POPA being a general law that seeks to protect public authorities/officers generally against the whole world, including victim-public officers and private citizens alike, does not relate to employment relations but to all actions of public officers/authorities. The same thing goes for the provisions of the statutes demanding pre-action notices, which are also general procedural laws granting privileges to public institutions against the whole world in all actions contemplated against them and have nothing to do with employment and labour relations. The POPA and the pre-action notice provisions of the various statutes are not industrial relations sui generis and are therefore, damnified by the Supreme Court’s authority in Geepee.

This is more particularly correct in the case of POPA, which is a standalone statute, and not the establishing statute of any public authority, creating its powers to employ and discipline or the conditions of service or terms of employment. It is a stranger to the contracts of public employment relations and therefore, simply a persona non grata. Even if it is said to be a special statute: it is not a special statute with the consciousness of employment and labour relations in mind, but only the privileged protection of public authorities/officers. It was even made in 1916 before ILO was established in 1919, at a time when workers’ rights were treated with disdain, hence, its anachronistic attachment to the doctrine that the king can do no wrong. Its continued existences is therefore incompatible with the ILO ILS, and so the NIC is barred by S. 254C-(1)(b), (f)-(h) & (2) of the Constitution, from applying it to industrial relations in Nigeria.

The reason for this restriction of the statutes that NIC can apply is because industrial relations are sui generis and for that reason, only specialist statutes, made specifically with the understanding of industrial relations and ILS in mind, and not general statutes, can apply to industrial relations and by that, only those statutes can the NIC apply to the resolution of industrial relations disputes. Otherwise, the whole essence of sui generis would be lost and statutes that clearly offend international labour conventions and are not meant for industrial relations would be unwittingly applied to industrial relations and Nigeria would thereby continue to earn the status of a pariah nation and continue to receive queries from ILO for not living to her commitments in comity of ILO. S. 254C-(1)(b) of the Constitution demonstrates unambiguously that the NIC can only interpret industrial relations-inbuilt statutes or statutory provisions that are clearly connected with industrial relations and by that, took into focus the nuances of labour relations.

Employer are not allowed to make any laws/policies at their whims and caprices in employment relations, unless such laws or policies fully comply with the ILO precepts, because, without the regulatory functions of ILS, employers would make only laws/policies that favour them against the interests of workers, and we return to the crudest form of slavery, and this includes even public employers. This is the philosophy underlining ILO ILS and supervisory roles. The POPA, made when the ILO was not in existence, and which had been abolished in virtually all the British colonies and in Britain itself or struck down by courts, must be viewed within this prism. Hear the erudite Goud once more on this count:

“Moreover, the proliferation of international labor standards promulgated by organizations such as the International Labour Organization (ILO) underscores the global dimension of unfair labor practices, transcending national borders and jurisdictions. Through conventions, recommendations, and supervisory mechanisms, the ILO seeks to promote the principles of social justice, labour rights, and decent work for all, thereby contributing to the harmonization of labor laws and the eradication of exploitative practices worldwide.”

This is why Arturo S. Bronstein [supra] said:

The Nigerian public-authority-employers cannot be allowed to retain in the laws of the realm the POPA, which is against everything the ILO stands for. For example, the public-officer-victim of the tort in Adigun v. Ayinde [supra] was incapacitated for more than three months as a result of hospitalisation resulting from the accident and his appointment was terminated because he became paralysed, and his terminal benefits were not paid. He filed a suit outside three months and the suit was dismissed in limine, not because of any fault on his part but because he was being treated for the fatal injuries he sustained. S. 254C-(1)(f) of the Constitution in conjunction with Art 8(3) of the ILO C158 would have invalidated the POPA in that situation and the recent Supreme Court’s decision in Geepee would have validated the nullification. It would be seen that both in termination of employment and the purely tort cases, the public servants are the worst for it under the POPA, while private contractors who contract with public authorities, whose contracts have become more tainted with statutory flavours – CBN v. Adani Mega System Ltd [supra] – are excused from its dragnets. This smacks of the common law prejudice against workers that they were mere property of the employers to be treated anyhow, a classic instance of discrimination, a position which ILS have transformed.

In a country like Kenya, which also has Employment and Labour Relations Court [ELRC] S. 90 of the Employment Act[42] provides a blanket three-year limitation period to commence actions arising from employment relations without allowance for extension of time. First, three years is twelve times the limitation time provided by the POPA. Secondly, the limitation time is contained in the statute that directly governs employment relations in Kenya and not hidden in a statute that has nothing to do with employment relations so that, issue of ignorance of the law does not arise, and the provision is couched in very direct and unambiguous language so that issue of ignorance of the law arising from ambiguity, a problem inherent in the POPA, whose language is replete with ambiguity and which is an entirely distant statute that has nothing to do with employment issues, does not arise.

By that, workers and lawyers are very much aware of the limitation period which is equally much longer than the limitation time contained in the POPA, hidden in a statute that has nothing to do with employment and couched in the most ambiguous words ever used in any statute. This is settled beyond disputation when S. 15 of the Kenyan Employment Act directly provides as follows: “An employer shall display a statement in the prescribed form of the employee’s rights under this Act in a conspicuous place, which is accessible to all employees.” And S. 90 of the Kenyan Employment Act provides thus:

“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months of the cessation thereof.”

It is rational to assume that one of the main things that would be contained in such notice is the limitation period. We can see clearly how modern law paternalistically treats employees by consciously feeding them with their rights. It is clear too, that an ambiguous limitation statute, which is not contained in employment and labour statute, cannot apply to employees, which is the reason S. 90 of the Kenyan Employment Act, overrides S. 4(1) of the Limitation of Actions Act, a general limitation statute that formerly dealt with limitation times on all actions.

We can see it is even-handed, as it does not create any special privilege for public authorities and therefore, substantially meets the requirement of fair labour practices and Art 8(1)&(3) of ILO C158. But yet, its compatibility with Art 8(3) of the ILO C158 in terms of taking away court’s discretion to extend time in deserving cases is a pedantic concern. Nevertheless, the ELRC has repeatedly upheld it – Kenya Plantation and Agricultural Workers Union (KPAWU) v. Kionyo Tea Factory [2019] eKLR Cause No. 6 of 2019[43]and; G45 Security Services (K) Limited v. Joseph Kamau & 468 Ors.[44] [Civil Appeal No. 158 of 2015; 2018 Eklr]. So far, from my research, no issue of its unfairness or conflict with Art 8(3) of the ILO C158 or inadequacy of the three years has been raised in Kenya. This might never be because, it is free of the hidden hurdles replete in S. 2(b)-(d) of the POPA and more importantly so, the jurisdiction of the Kenyan ELRC to apply conventions does not seem to extend to unratified conventions and international best practices – S. 2(6) of the Constitution of Kenya – the contrary, which is prominent in S. 254C-(1)(f)&(h) of the Nigerian Constitution and, three years in a cognate statute that contains everything about employment is likely to be really enough, when viewed against the backdrop that the workers are made acutely aware of their rights, so that, no question of being unaware could arise. Clearly, laches and acquiescence apply in this instance thus, meeting the requirement of Art 8(3) of the ILO C158.

The fact remains that the jurisdiction of the NIC to prevent unfair labour practices, to enforce international best practices and international labour standards is constitutionally provided non-obstante, giving impetus to the NIC to enforce both ratified and unratified international labour conventions as international best practices/ILS to prevent unfair labour practices, a situation that is not applicable in Kenya, where its ELRC is a creation of ordinary statute and where it only has jurisdiction to apply ratified conventions by virtue of S. 2(6) of the Constitution of Kenya. In this context, its adherence to S. 90 of the Employment Act with absolute three-year limitation time, which outwardly seems to be in conflict with Art 8(3) of the ILO C158, in terms of taking away the rights of courts to extend time in deserving cases, may be justified within its constitutional limits and the fact that, employees are made aware of their rights.

The important fact is that the long limitation period reduced substantially the disadvantages that could have existed. In similar manner, the Public Authorities Protection Act of Malaysia, which is a colonial heritage from the British colonialists, like the POPA in Nigeria, is still retained, but was severely amended in terms of the grace period, to increase the original limitation period from six months to 36 months [three years], which is 6 times of what it used to be and 12 times of the three months provided by S. 2(a) of the POPA in Nigeria, but it still retained all the baggage of discrimination and fencing games against workers, which still made it very contrary to Art 8(1)&(3) of the ILO C158 and not in tune with international best practices.

Nevertheless, the colossal increment of the limitation period from six to thirty-six months has done much to obviate the mischiefs inherent in the POPA-like statute against public workers. What have emerged from the foregoing are that, where the limitation periods are short, like in the UK and South Africa, there are inbuilt mechanisms to make workers acutely aware of their rights [ACAS&CCMA] at no cost to them by ways of compulsory advisory services, mediations, arbitration, and provisions are made for courts to extend the times in deserving cases.

On the other hand, where no provisions are made for extension of time and free mediation and arbitration, the limitation period is made very long like the three years in S. 90 of the Employment Act in Kenya and the Public Authorities Protection Act in Malaysia. Therefore, the sufficiency or otherwise of limitation time is a relative term deducible from the accompanying facilities and factors enabled by the particular statutes. There can hardly be any complaint of inadequacy of time in the UK system despite the three months because of the facilities that accompanied it. It does mean that three months can be enough even for laches and acquiescence to apply, where there is proof that the worker was well aware and had the real facility and opportunity without hurdles [hidden or not] but did not file his action. So, we must view the three months of POPA within the hidden hurdles inherent in it and its ambiguous language and its being marooned in a hidden statute that has nothing to do with labour and employment relations.

These are the international best practices relating to limitation periods in employment disputes around the world. It therefore comes about that in whatever way one looks at it, the case of the POPA with absolute three months of fencing-game limitation period devoid of the right of courts to extend time, does not meet international best practices and it is also acutely unfair against workers. Since the sui generis rights to fair labour practices and international best practices are guaranteed by SS. 254B-(3)&(4) and 254C-(1)(f) of the Constitution, any statute that constitutes unfair labour practices and at the same time contrary to international best practices is liable to be struck down as unconstitutional in line with the Supreme Court’s authority in Geepee. With the additional hurdles created in S. 2(b)-(d) of the POPA in spite of the overtly short time, the POPA definitely also bars access to courts or at the least, prevents easy access to courts and thereby infringed the provisions of S. 17(1), (2)(a), (e), & (3)a)-(b) and S. 254C-(1)(f)-(h) of the Constitution; Arts 2, 3, 13(2)-(3) 15 & 19 of the ACHPRA; 1,7,10,21(2) & 23(1) of the UDHR; Arts 3 & 7 of the ICESCR. The POPA is therefore liable to be struck down as unconstitutional. But before then, let me examine its unfairness and unconstitutionality further through historical excursus.

In the first Hansard Report[45] on parliamentary debate to abolish the English PAPA, of which the Nigerian POPA is an offshoot, the PAPA was roundly condemned as an unjust and unfair statute. The debate confirmed that the clauses relating to the need to give the public authorities elastic time to settle was thoroughly abused by the public authorities in Britain, by baiting the victims of their actions with the possibility of settlements, which negotiations would be allowed to drag beyond the six months before being suddenly called off. And when the victims subsequently filed actions, the public authorities would promptly plead the PAPA, which the courts would uphold without qualms. It was also confirmed in the debate that the PAPA was enacted purely to protect the public authorities against tortious actions and not contracts. The threat of punitive cost designed against the victims was seen as a means to scare them away from filing actions and the six-month limitation period was also seen as acutely inadequate.

The English Attorney-General confirmed that the punitive cost was designed to stop frivolous litigations against public officers but inadvertently stated that the victims won 9 out of every ten cases filed, a fact which nullified the existence of frivolous cases on PAPA and exposed the malevolent intents of the PAPA. And I dare say further that, the jurisdiction to prevent the filing of frivolous cases squarely belongs to the courts and not to any statute or the Attorney-General, for which reason, the courts under common law, had evolved a timeous process, practice and procedure of filing of objection in limine on ground of no reasonable cause of action. And even without defending truly frivolous actions, the courts, not being robots, would detect the frivolity and dismiss them. The English courts were helpless because of the nature of the then British Constitution, where parliament was supreme, for which reason, its law was supreme and must be enforced by the courts. That this is so was confirmed by the fact that British judges constantly severely criticised the PAPA as unjust law but nonetheless trudged on[46].

It was therefore not by mere coincidence that the PAPA was abolished by the British parliament in 1954, which was coterminous with the period after the British had adopted the ECHR Nov 4, 1950, which gives the English Courts and the Strasbourg Court for the first time, the jurisdiction to override any Act of parliament that was incompatible with the ECHR. By the time of the second debate[47] against the PAPA, the English Attorney-General immediately conceded the uselessness of the PAPA and only begged for time to initiate bill for its repeal, which was done the very following year.

Whereas, in Nigeria, since independence, the Constitutions have been supreme, except for the times of military interregna, when the military decrees were supreme, and even at that, there was no time that the POPA was upgraded above the unsuspended parts of the Nigerian Constitutions under military rules. This distinction between the British parliament and Nigerian parliament, ought to have alerted the Nigerian courts to the danger of applying the common law cases on the POPA blankly. Nweze JSC echoed the need to reexamine the constitutionality of the POPA in obiter in Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576 (SC) 631-633, G-D:

“However, I have a different kind of concern regarding the Public Officers’ Protection Act which the leading judgment dealt with as issue one. Although numerous decisions of this court have upheld it, I find it amazing that fifty years after flag of independence, common law concepts which only found historical and jurisprudential justification on the peculiarities of English constitutional history could still be upheld in our superior courts.

In my humble and most respectful view, there is even a laughable irony in all this! Most of those concepts were, actually, associated with the notion of the prerogative of the crown: a notion which could only be explained on the basis of the quondam hypothesis that the English Monarch was not accountable for a wrongful act in the courts. Professor S.A. de Smith explains that by the time of Elizabeth I, there had developed a ‘fairly coherent theory of the royal prerogative’…

What makes the matter more irksome is that some of those concepts have been abolished in the land of their nativity, namely, England. Is it, then, not curious that here, in Nigeria, we are pretending to be more catholic than the Pope?

The Independence Constitution of 1960 accommodated some of these Victorian ideas. The prevalent notion at the time of independence was that owing to the antecedents of Nigeria’s constitutional history, citizens could not enforce their claims against the Central and Regional Governments. It took the stature and the eminence of the Supreme Court to dissipate that anachronistic position in Ransome-Kuti v. AG Federation (1985) 2 NWLR (Pt. 6) 211…

I concede that this is not the issue we are confronted with in this appeal. So, let it abide the opportune occasion when, hopefully, it would be presented before this court for determination…”

The continued application of these common law precedents on the POPA becomes more precarious in virtue of SS. 17(1), (2)(a), (e), & (3)a)-(b); 254C-(1)(b), (f)-(h) & (2) of the Constitution, Arts 2, 3, 13(2)-(3) 15 & 19 of the ACHPRA; Arts 1,7,10,21(2) & 23(1) of the UDHR and Arts 3 & 7 of the ICESCR, and Art 8(1)&(3) of the ILO C158, which are all antagonistic to the continued existence of the POPA in Nigeria, as this decision has adumbrated hereinabove earlier. And I wish to add that immediately after the promulgation of the independence Constitution in 1960, the POPA ought to have been declared null and void because, it conflicted clearly with its S. 28(1)(a)-(b), which is now S. 42(1)(a)-(b) of the extant Constitution, which bars discrimination against any person on the ground of belonging to a particular “community”, community having been defined as “a society or group of people with similar rights or interests[48].”

The POPA was a classic example of a statute based on the policy of discrimination against particular citizens of Nigeria because they belonged to the racial class of people of the community of the colony of Nigeria, and particularly against Nigerian public workers because they belong to the social class or the group or community of public workers, a stigma which the POPA has earned up until now. Otherwise, nothing justified the reenactment of POPA in 1916 in Nigeria with more punitive fang by reducing the limitation period from six months, which the original Public Authority Protection Act, which was originally applicable as a statute of general application had, to mere three months without any justifiable explanation.

The situation was worsened in 1939 when the limitation period was increased for Britons in the homeland Britain to 12 months and the Nigerian version left with its three months and made worst in 1954 when the British parliament abolished the PAPA as unfit for the free British citizens, and yet, left it to run amok in Nigeria with its draconian three months left intact, which was even not certain by the hurdles placed in S. 2(b)-(d)! The precariousness and the unconstitutionality of POPA as a statute rooted in the worst form of class and racial discrimination was further compounded in 2002 when Nigeria ratified ILO C111 which its Art 1(a) forbids discrimination on ground of social origins, a discriminatory policy which the POPA applied to Nigerian public workers on the ground of their social origins of being public workers amongst the workforce of Nigeria, a policy which is equally contrary to S. 254C-(1)(g) of the extant Nigerian Constitution.

It must be noted that ILO C111, is one of the fundamental rights conventions of the ILO and so, is enforceable in all ILO-member nations as article of membership, even without ratification. And incidentally, Nigeria has ratified it since Oct 2, 2002. These and many more anachronistic vestiges of the POPA are worst examples of unfair labour practices and depict Nigeria in the worst scenario of pariah status of anti-international best practices.

More importantly so, the courts always have the duty to apply the laws to the facts of cases before them whether or not cited: a duty more poignant in the NIC by virtue of S. 14 of the NICA. Hence, the revelation that the POPA sought to prevent frivolous suit was an afront to the jurisdiction of courts. This is apart from the fact that stopping citizens by means of statutes from filing frivolous suits is usurpation of the powers of the courts for a statute to decide in advance what amounts to frivolous cases, when there is a judicial remedy of filing objection in limine on ground of no reasonable cause of action. These complaints initially led to the increase of the limitation period of the PAPA to 12 months in England 1939 and the complete abolition in 1954, a fact on which the Halsbury Laws of England testifies:

“Since 4^th June 1954 the periods of limitation applicable to actions against public authorities are the same as those applicable to similar actions against private persons.”

These problems are also rife in Nigeria with public authorities routinely abusing the instrumentality of the POPA to stop the scrutiny of their actions. The cases of Aba v. NIPOST [supra], where the public-servant-victim of POPA lost the right to his pension and Ayinde v. Adigun [supra], where the public servant, who was rendered paralysed by the injury he sustained from a co-worker, and could not file action within three months because he was in intensive cares in several hospitals to which his employers took him to save his life, was thrown out from justice just like that because the same employer pleaded the POPA to escape the scrutiny of their reprehensible conducts. The case of the POPA is worse because it is not only rooted in discrimination in the public authorities’ favour but also creates discrimination amongst the class of the national workforce, in which the private sector workers enjoy five/six years limitation graces, compared to the three months given to the public servants; and even amongst the public workforce, those employed under common law, are made to suffer double jeopardies by being subjected to POPA while their employments have no statutory flavours.

Another instance of discrimination meted to the public servants is that the POPA applies to them as public servants in both their contracts of employment and workplace torts and additionally, apply to them in their private lives in torts. Whereas, private citizens only suffer the fang of POPA in torts alone, making it triple tragedies for public servants, against only one, for private citizens! The legislators could not have intended these brazen deprivations against public servants merely on account of serving their nation. This strongly suggest that POPA was never intended to apply to any type of contract at all. This additionally offends SS. 42(1) & 254C-(1)(g) of the Constitution, and Art 1(a)-(b) of ILO C111, which broadly bars discrimination, and bars discrimination on bases of the community to which a person belongs, national extraction or social origin, all which capture POPA’s discrimination on public servants simpliciter and additionally on the bases of their national extraction as public servants and their social origin as public servants. There is no inherent requirement to justify the discrimination enjoined by the POPA to bring it under the exception in Art 1(2) of the ILO C111. And the ensuing discrimination in being applicable to public servants in torts in both their official and private lives, apart from other factors already examined, makes it totally unconstitutional.

Of note too, is the fact that Kenyan court linked the question of inadequacy of the limitation time and the taking away of discretion in the courts to grant extension of time in deserving cases to interference with accountability and transparency on the part of state – Kenyan Bus Services Ltd & Anor v. Minister of Transport & Ors [supra]. Both the SACC and the Kenyan courts also considered that the excessively short limitation period without power in the courts to extend time, granted unreal access to courts and interfered with the inherent powers of courts. They equally assessed the situation as unfair. All these, which are also rampant in Nigeria, contravened the provisions of the Arts 2, 3, 13(2)-(3) 15 & 19 of the ACHPRA; Arts 1,7,10,21(2) & 23(1) of the UDHR and Arts 3 & 7 of the ICESCR, and S. 17(1), (2)(a)&(e), (3)(a)-(b) of the Constitution and Art 8(1)&(3) C158 and (1)(1) of C111 earlier cited, equally constitute unfair labour practices contrary to S. 254C-(1)(f) of the Constitution.

The only known former British colony to retain the colonial bequest Public Authority Protection Act is Malaysia. And its initial six-month period, which was originally twice that of S. 2(a) of the POPA, Malaysia had increased to 36 months [three years] since 1974[49] [51 years ago] thus, greatly reducing the propensity of the anachronistic statute for mischief. But its discriminatory status still remains in Malaysia. With this state of affairs on limitation laws across the world, especially within the world of Britain and its former colonies, it is certain that only Nigeria still retained the anachronistic statute in its worst original form in its statute books. It is certain too that Nigeria has the shortest and most unconscionable limitation period of three months without power in the courts to extend time. Equally certain is the fact that only Nigeria retains discriminatory limitation law. Thus, Nigeria earns the unsavoury pariah stigma of being, perhaps, the lone ILO country, of the 187 member-nations, with such anti-democratic statute. And this becomes worse to note that Nigeria, a prominent member of the ILO, is found in this mess of the practice of applying such obnoxious law in employment relations. This policy is incompatible with the constitutional mandate to bring up Nigeria’s employment relations law to the standard of international best practices enjoined by S. 254C-(1)(f)&(h) of the Constitution.

Remove the defence of POPA, public authorities in Nigeria scarcely ever have defences to most cases. This proves to the hilt that the POPA is truly inimical to transparency and accountability in a democratic society. A few examples suffice. In Adigun v. Ayinde [supra] the Supreme Court made the following uncomplimentary remarks on the POPA:

All the justices in the panel that heard this appeal at the Supreme Court made very uncomplimentary remarks on the injustices endowed in the POPA but felt handicapped to do anything than obey its cruel dictates. Such statute is not the path to economic progress or citizens’ loyalty to the state. The Court of Appeal, in Nwaka v. Head of Service, Ebonyi State (2008) 3 NWLR (Pt. 1073) 156 (CA) 163, made the following unsavoury remarks on the unconscionability of the POPA:

“It appears…the Public Officers Protection Act is providing an undeserved shield for public officers against ordinary citizens who as it were, may be ignorant of the provisions of the Act. It is my humble view that laws should operate to enhance the lives of citizens and not to deprive the citizenry the opportunity to ventilate his grievances especially where there is an infraction of their entitlement and constitutional right.”

The observation on ignorance of the provisions of the POPA is borne out of its very ambiguous language that made it practically impossible for public officers and even legal minds to factor them into the fabrics of the contracts of public employment. This has led to conflicting decisions in both England and Nigeria and a great deal of controversies amongst stakeholders. Thus, the POPA not only scores the first position in terms of unconscionability but also as the most ambiguous statute the world ever knew and the most controversial. In Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258, a case of tort against a female teenage student who was wounded in the eye by her teacher. The public authorities took her to hospitals for treatment, which treatment went beyond three months, and she eventually lost the eye. The mother, as her next-friend, sued on her behalf for damages after the three months, and the public authority pleaded the POPA, and the court dismissed the case just like that, as being statute-barred! Lastly, in Aba v. NIPOST [supra] – delivered Friday Dec 2, 2022, a case of unlawful reversion of promotion and retirement on wrong grade level and consequential payment of wrong monthly pension therefrom, the Supreme Court held in respect of S. 59(1) of the NIPOST Act, in pari materia with S. 2(a) of the POPA that: “the appellant clearly had a valid claim but pursued the path of negotiation until his right of action was taken away by section 59(1) of the NIPOST Act, 2004[50].”

We can see that in its application in torts against public servants in Adigun v. Ayinde [supra] and private citizens in Ekeogu v. Aliri [supra], the nefarious effects were exactly the same: clearly discriminatory and totally unfair. We can see clearly too in the case of Aba v. NIPOST the clear example of how the public authorities abused the POPA and make themselves unaccountable and at the same time preventing transparency in inquisition into their official conducts. Now, S. 173(2) of the Constitution guarantees the right to pension in absolute terms and fortified its inviolability against reduction under any guise not clearly backed by an Act of the NASS. This right was casually waived aside by the application of the POPA, yet constitutional rights, suffer no inhibition of limitation statutes - Muhammed v. A.B.U. Zaria [supra] and, Oluwabukola v. AG Lagos State [supra]. No nation condones this type of statute and expects to make sustainable development. We can thus see how the public authority has been able to thoroughly abuse the instrumentality of the POPA, turning it to an instrument of bad faith, fraud and unconscionability against citizens, especially public servants and that, in the four examples given, the public authorities had no iota of defence, were the veil of the POPA removed. Countless such examples abound.

To obviate these types of situations nations around the world, as this decision has shown earlier above, have either made the limitation period very long or made them short with adequate inbuilt facilities to make workers aware of their rights with the provisions of discretion in the courts to extend time in deserving cases. We have also seen that, where these safeguards are lacking, the courts have declared such obnoxious statutes unconstitutional. These are the basic standards that correspond with international best standards across the world, in the paternalistic nature of modern industrial relations law for which Arturo Bronstein [supra] made its now famous statement of the philosophy of modern labour law:

The erudite Goud [supra] reiterated this position:

“Through conventions, recommendations, supervisory mechanisms, the ILO seeks to promote the principles of social justice, labor rights, and decent work for all, thereby contributing to the harmonization of labor laws and the eradication of exploitative practices worldwide (ILO, 20121).”

The essence of modern Nigeria labour law as introduced by the Third Alteration Act is the harmonisation of Nigerian labour/employment law jurisprudence with that of the established democracies and the ILO for the sole aim of eradicating unfair labour practices. That is the law as introduced by SS. 254B-(3)-(4) & 254C-(1)(b), (f)-(h)&(2) of the Constitution and the raison d’etre for the constitutional reestablishment of the NIC. It is a positive law of which the sacred duty of application is placed on the NIC – S. 254B-(3)&(4) & 254C-(1)(b), (f)-(h) & (2) of the Constitution; Adegboyu [Adegboye] v. UBA – unreported Court of Appeal decision in CAIL/20/2021 – delivered Apr 14, 2022 and Sahara Energy Resources Ltd v. Oyebola [supra]. The NIC cannot therefore allow the public authority-employers in Nigeria to foist this obnoxious statute [the POPA] on public employees in Nigeria. The duty is placed on the NIC to apply the law in the international conventions and best practices/standards to change labour law in Nigeria to make it attune with the comity of nations. Any statute that stands in the way of these non-obstante constitutional provisions is liable to be struck down as unconstitutional. That, is the least, the NIC is constitutionally obliged to do.

And in doing this, labour courts around the world have also found in the doctrine of proportionality otherwise called ‘doctrine of reasonability’ a reliable ally to employ scientific method to measure the compatibility of statutes, policies, and practices with the fundamental tenets of labour law[51]. Proportionality designed some tests to achieve its objective of testing compatibility between a specific policy or statute with fundamental labour rights. These are: is the offending statute/policy/practice legitimate, suitable, necessary, fair [reasonable] or the least invasive?

With our findings so far, the POPA passes none of these tests. And it must be recollected that these tests are disjunctive and failure in one, leads to a declaration of the statute/policy/practice unlawful. With the finding in this decision that the POPA enables discriminatory application of a law against public employees and the evidence that it also promotes chicanery, and unconscionable practices by the public employers against public employees, it is clear that it is not suitable. With the finding that it promotes opaqueness and anti-transparency, it is definitely against whistleblowing and therefore, unsuitable. With the evidence that virtually, all the nations which inherited it from Britain have abolished it, except Nigeria, or their courts have declared it unconstitutional and the fact that Britain has abolished it since 1954, the POPA is doubly unsuitable. Furthermore, some States in Nigeria, like Abia, Ebonyi and Rivers, have abolished their state versions of the POPA[52] without regret for two decades because they believed it entrenched unjustifiable discrimination in access to justice against citizens. That is within the same municipal jurisdiction, which nullifies all the arguments that had been canvassed to justify its continued existence. This further brings home the truth that the POPA is unsuitable for free citizens as confirmed by the Halsbury’s Law of England [supra] in relation to its abolition in England since 1954.

It is both unnecessary and not the least invasive. One of the factors examined to determine the viability of an offending statute/policy under the proportionality doctrine is whether it is the least invasive of the constitutional rights or fundamental employment rights of citizens. As such, it would be examined whether there is any alternative statute or law, less invasive which achieves the same objective as the offending POPA. S. 2 of the LA, which is coterminous with Art 8(3) of the ILO C158 meets this requirement to obviate vacuum. That was part of what informed the decision of the SACC in Leach Mokela Mohlomi v. Minister of Defence [supra], when it struck down S. 113(1) of the Defence Act, in pari materia with S. 2(a) of the POPA because, it found that there were other statutes to fill its vacuum. Issues like the existences of several similar statutes in South Africa but with longer limitation periods was also a factor that the SACC considered to arrive at the highhandedness and unreasonability of S. 113(1) of the Defence Act, on which basis the SACC arrived at the conclusion that there was interference with right of access to court. The SACC also seriously considered as interference with the constitutional powers of courts, the taking away of the discretion to extend time in deserving cases.

In Nigeria, there are SS. 12 of the NNPC Act; 83(1) of the NRC Act and; 59(1) of the NIPOST Act. They all are in pari materia with S. 2(a) of the POPA but all give 12 months as against the three months POPA gives. Note that S. 113(1) of the Defence Act of South Africa gave six months as against S. 2(a) of the POPA, which gives a paltry three months, yet the South Africa SACC considered it too short for the citizens and struck it down. Arising from the above S. 2(a) of the POPA is definitely not the least invasive in Nigeria, assuming without conceding that the other POPA-like statutes are constitutional, but as shown earlier, they are not. Apart from the absolute unconstitutionality of the POPA, it equally constitutes unfair labour practice in the overtly short limitation period without discretion for extension of time and yet, fenced about by booby traps in the need to give the public authorities elastic time to negotiate at no discount to the absolute limitation period.

As this decision has shown, it is equally not in tune with international best practices and also offends all the factors of invalidity under the proportionality test. It is also totally offensive to Arts 2, 3, 13(2)-(3) 15 & 19 of the ACHPRA; Arts 1,7,10,21(2) & 23(1) of the UDHR; Arts 3 & 7 of the ICESCR; Arts 1(a)-(b) of the ILO C111, 8(1)&(3) of the ILO C158; and SS. 17(1), (2)(a), (c) (e) & (3)(a)-(b), 254C-(1)(b), (f)-(h) & (2) of the Constitution. For all these reasons, the POPA is roundly illegal, null, void and unconstitutional, and liable to be struck down. It is hereby accordingly struck down as unconstitutional. I therefore most emphatically hold that this suit is not statute barred. Issue 1 of the NPO is thus, resolved against the defendants and in the claimant’s favour. I move to examine the question: Is the suit improperly constituted?

That is issue 2. The first ground of attack is that the 1^st defendant is non-juristic because “council” was not added to the name on record. The Supreme Court held in Unity Bank Plc v. Tambuwal Constr. & Trading Co. Ltd (2025) 8 NWLR (Pt. 1992) 211 (SC) 257-259 that a misnomer is a mistake in name that causes no reasonable persons to have doubt about the real person sued. The mere omission of “council” from the full name of the 1^st defendant as Council Federal Polytechnic, Ohodo, Enugu State, can by no stretch of imagination be said to amount to suing the wrong person or mistake of identity, to have the effect of misleading the 1^st defendant. The 1^stdefendant, to all intents and purposes, was correctly sued and no reasonable person could be misled or was misled by the omission of the word “council” from the name. Had it been that only the “council” was sued without adding the phrase “Federal Polytechnic, Ohodo, Enugu State” to it, that could have caused a reasonable doubt in the mind of reasonable persons as to who was sued, as the word “council” is generic and non-specific, while the phrase “Federal Polytechnic, Ohodo, Enugu State” is a full personal noun that attaches to an existing and known entity. So, the claimant sued the right person in its right and correct name, which does not need correction. The learned defence counsel is just being pedantic.

In this wise, the learned claimant’s counsel was eminently correct that the operative verb used being “may” denotes facultativeness and not mandatoriness. This is correct because S. 3 of the FPAA did not create any benefit in the use of word “Council” in favour of private citizens and it is not a public officer that has omitted to use the word and the legislature did not attach any punishment for failure to use the word, which in law, are the basic distinctions by which facultativeness and mandatoriness are distinguished – FRN v. Akaeze (2024) 12 NWLR (Pt. 1951) 1 (SC) 31, D-G – and S. 1 of the Federal Polytechnic Act [FPA] underscores the correctness of the conclusion by creating the Federal Polytechnic Ohodo, Enugu State as a person “which shall have such powers and exercise such functions as are specified in this Act.” So, the 1^st defendant as sued on record is a full and complete juristic personality on its own without the need to add the prefix, “council” to its name to make it whole. When an entity or creation of statute is attached with functions, which can affect the right of persons, it is a juristic personality eo nomine. On this, the learned claimant’s counsel rightly cited the authority for this in Carlen v. Unijos [supra]. The Supreme Court has not overruled itself on this.

I want to remind the learned defence counsel that the use of the word “may” in S. 3 of the FPAA, is not by chance, but has definitive purpose. The Council is not always in existence. It is the Federal Polytechnic Ohodo, Enugu State that is always in existence at all times, as Council comes and goes, the Federal Polytechnic Ohodo, Enugu State remains in place, carrying out its functions until another Council is appointed. So, the existence of the Council is an evidential issue, which must be proved before it can even sue in its corporate name, and no evidence was produced to anchor the pedanticism. The pedantry is therefore a non-starter. That explains the use of the operative word “may” to donate the optional power to sue with the addition of the word “Council”, the basic juristic person being the Federal Polytechnic Ohodo, Enugu State. The Council and 1^st defendant are one and the same. The Council exist in the 1^st defendant. The objection on this ground is accordingly dismissed as sheer waste of time. The 1^st defendant was rightly sued, as it appears on record, without the need to add the word “Council” to make it full. I move to the question of misjoinder of the 2^nd-4^th defendants, of which the learned defence counsel objected that, as they were agents of a known principal that was not sued, as such, they could not be lawfully sued.

The law ensconced that the determinant consideration of no reasonable cause of action is the originating processes and not the defence processes. This objection being generic of no reasonable cause of action, I am bound to consult the SF. Paras 10-25 showed allegations of personal nature made against the 2^nd defendant while the 3-4^th were accused of intentional gross dereliction of duty to advise the 2^nd defendant properly, which enabled him carry out his purported illegal acts against the claimant. In essence, the allegations were that of acting outside the remits of law with vendetta. It is another thing to proof the allegations at trial. But at this stage, the court is not concerned with the weakness of the cause of action pleaded but with prima facie nature of it, that, if undefended, it can ground reliefs – EFCC v. Akingbola (2015) 14 NWLR (Pt. 1478) 1 (CA) 199, E-H. Hence, the learned claimant’s counsel correctly cited Cotechna International Ltd v. Churchgate Nigeria Ltd & Anor and Febson Fitness Centre & Anor v. Cappa Holdings Ltd & Anor [supra] that when agents act beyond their lawful remits, they are suable personally and jointly with their principal. That ground of objection is also accordingly dismissed as without an iota of merits. I move to the question whether the claimant issued pre-action notice.

This was raised as one of the grounds of the NPO but was not argued in the WA and must per force be deemed abandoned – Gege v. Nande (2006) 10 NWLR (Pt. 988) 256 (CA) 291, F-G. But in case the Court of Appeal finds my ratiocination to be incorrect, being a trial court that must express an alternative opinion to cover the non-acceptance of its main opinion, I go ahead to offer my alternative on the merits of the issue, arguendo, the first opinion is invalid. The Court has touched cursorily earlier, while treating the question of S. 2(a) of the POPA, on the question of pre-action notice. The decision therein and the reasons for the decision remains valid for the treatment of the question of pre-action notice, as a separate ground of objection. I only need to add that, raising pre-action notice is inconsistent with S. 20 of the NICA and SS. 4-14 of the TDA, which are the inbuilt sui generis laws that mandate the use of ADR in employment and labour relations in Nigeria. Industrial relations law, as we have pinned down earlier in this decision, being sui generis, is only amenable to its brand-made laws by virtue of S. 254C-(1)(b) of the Constitution, which gives the NIC jurisdiction to apply only sui generis statutes dealing directly with only “labour, employment, industrial relations, workplace” aside the TDA specifically named, and the Supreme Court’s authority in Geepee.

The various laws mandating pre-action notices in Nigeria are general provisions in the establishing statutes of the various institutions/public authorities on the procedures of institutions of suits against them generally and not specifically tailored for employment/labour relations. S. 12(2)(a) of the NICA, which is brand made statute in labour relations and directly concretised by S. 254D-(2) of the Constitution, says the NIC is only subject to the NICA in the matters of its procedure and proceedings and may regulate them as it deems fit. So, the NIC cannot be subject to the procedural laws contained in any general statutes as to the conditions precedent to institute actions in the NIC, once the NIC has substantive constitutional jurisdiction over the matter – Geepee [supra]. This must be so because labour law deals with socioeconomic issues and cannot afford to be tied to the rigmaroles of the technicalities of the pre-action notices. And more importantly so, speed and efficiency are the reason d’etre of industrial courts all over the world – Adegboyu v. UBA [supra]. Pre-action notices are inimical to speed and efficiency.

It cannot be tolerated in resolution of trade disputes or employment disputes, where the parties must know their fates quickly, especially the employees, to enable them move on with their lives – Adegboyu v. UBA [supra]. While such can go on in the commercial and other aspects of law and be pursued for decades to the Supreme Court, while leaving the merits of the substantive complaint unattended, it cannot be of any benefit in the resolution of labour disputes. It is for this reason that labour courts around the world do away with technicalities that might delay the hearing of the merits of labour cases timeously. The practice of pre-action notice in employment and labour disputes is therefore against the international best practices in the adjudication of industrial relations disputes. That is why S. 20 of the NICA specifically gives the NIC the vires to order negotiation in deserving cases where the parties by consent apply or, to send them by fiat to the NIC ADR Centre created and branded specifically for labour by S. 254C-(3) of the Constitution, where well trained neutrals can mediate the disputes at arm’s-length.

Besides, the policy of pre-action notice is against arm’s-length negotiation in industrial relations disputes and smacks of elitist privilege for the employer to insist that its employees must come cap-in-hand to it, to beg it to negotiate after knowingly doing what is being challenged. This is contrary to Art 8(1) of the ILO C158, which says such negotiation must take place before an independent body. Industrial relations law takes the paternalistic position that such bargains between unequal partners, compelled by laws hedged about by hurdles against public servants in favour of public employers, coupled with the public employers’ disproportionate power against the public workers, being unequal bargain, as unfair bargain, contrary to Art 8(1) of the ILO C158 and S. 254C-(1)(f) of the Constitution. The practice in established democracies like Britain and South Africa is that neutral independent bodies mediate industrial relations’ disputes to guarantee arm’s length and good faith and not that the employees go cap-in-hand to the employer to negotiate. This is incongruous to whistleblowing, transparency and accountability and subject to abuses.

As is expected, public employers have serially abused this to raise frivolous objections deliberately to delay the hearing of the substantive merits of the cases inordinately to wear out the hapless public employees, as in most cases, aside the technicalities of the POPA and pre-action notices, the public employers scarcely ever have defences for most of their actions. As has been shown in this case, one of the ridiculous abuses to which POPA and pre-action notices are put is the simultaneous application of both to cases without discount, and both are absolute and therefore, by their self-contradiction, cannot cohabit. As both are couched in absolute terms without discount for each other, and the POPA too has its inbuilt demand for forced negotiation in S. 2(d), before actions could be filed in courts, it comes about that the design, is to ensure that the public workers cannot sue for infringement of their rights thus, reviving by artifice, the doctrine that the king cannot be impleaded.

They must be declared null as they are discriminatory and constitute unfair labour practices and the pre-action notices statutes declared, as they generally come later, as impliedly repealing the POPA, while it is itself null and void – Barry v. Eric and Olu of Warri v. Kperegbeyi [supra]. It is for this reason that S. 20 of the NICA, S. 4-14 of the TDA and S. 254C-(3) of the Constitution did not talk about pre-action notices but other methods through which ADR could be explored to settle industrial relations cases thus, implying exclusio unius rule. So, instead of striking out such cases, the NIC simply decides if ADR is necessary, and if, orders it, but if not, dismiss the objection and goes on to trial. So, on the authority of Geepee, SS. 20 of the NICA; 4-14 of the TDA; 254C-(1)(b) & (3), pre-action notices, having not been brand-made for industrial relations, are not applicable in the NIC, I so hold.

Let me also say two more things before I round up on this issue. The first is that the international best practice is that, courts increasingly strike down absolute statutory provisions on pre-action notices, which remove the power of courts to extend time, in other jurisdictions, as interference with the inherent powers of courts to extend time and hinderance to access to justice - Kenyan Bus Services Ltd & Anor v. Minister of Transport & Ors [supra] and Joseph Nyamamba & Ors v. Kenyan Railways Corporation [supra].

Secondly, pre-action notice, being a procedural issue, is waivable, especially in courts that have barred demurrer and NIC barred demurrer in Or. 30, R. 8 of the NIC Rules, the effect of which is that the details of the such procedural objections must be clearly pleaded with the specific sections of the statute that ground it. Where these are not done, as in this case, it is deemed waived, as the court is barred from going out to fish out the details for the defendant – UBRBDA v. Alka (1998) 2 NWLR (Pt. 537) 328 (CA) 339, G-H; BPE v. Dangote Cement Plc (2020) 5 NWLR (Pt. 1717) 322 (SC) 344-345, A-E, 347-348, E-F; Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503 (SC) 524, E-G; Adebayo v. Johnson (1969) 1 ANLR 176 at 190; Ariori v. Elemo (1983) 1 SC 13 at 50, (1983) 1 SCNLR 1; Tonimas (Nig.) Ltd v. Chigbu (2001) 15 NWLR (Pt. 736) 259 (CA) 268-269, H-A; Chigbu v. Tonimas (Nig) Ltd (2006) 9 NWLR (Pt. 984) 189 (SC) 208-209, H-D; CBN v. Ochife & Ors. (2025) 12 NWLR (Pt. 2000) 1 (SC) 77-80, G-B; and Duke v. Akpabuyo LG (2005) 19 NWLR (Pt. 959) 130 (SC).

I accordingly doubly dismiss the issue of pre-action notice, as it was not properly raised in the first instance and therefore, deemed waived. That being the end of all the grounds of the NPO, and since the defendants succeeded in none, the NPO must suffer the fitting indignity of dismissal. It is accordingly hereby dismissed in its entirety as totally lacking in merits. I move to the MNII.

B: Decision on the MNII

Evidence of service of this suit on the defendants on Jul 1, 2025 are on p. 54-61 of file. In fact, the defendants filed their Memo of Appearance and SD Jul 16, 2025. So, issue of service is conceded. The publication in issue warranting the cause of action for the prayer for interlocutory injunction is said to have taken place Jul 21, 2025, which is directly after the defendants have received the notice of this case, which main prayer, is, reinstatement to the office Bursar of the 1^st defendant. I have carefully read the AS, CA & FA on the MNII. What I found is that the defendants are still caviling on their arguments in the NPO that has just been dismissed that the 1^st defendant is non-juristic and cannot be sued or said to have done anything and the 2^nd-4^th defendants, being the agents of the disclosed principal that was not sued, cannot be sued too in the case of the advertisement to fill the position of bursar that is in casu. Going through paras 7-16 of the CA, particularly paras7-8, 10 &16 of the CA, the defendants did not deny the said advert but only demurred that the defendants on record cannot be held responsible for the publication and that the real disclosed principal, which is the Council of the 1^st defendant on record, has the right to manage the affairs of the 1^st defendant, as it deems fit. I noted that in the FA filed by the claimant a correct copy of the advert was exhibited.

The learned counsel to the defendants missed the point in the MNII. The claimant’s learned counsel did not argue that courts should make orders to prevent the 1^st defendant from carrying out its lawful duties but that, the defendants had no vires to foist a fait accompli on the court, by proceeding to fill the vacant position which is the fulcrum of the substantive action in this case, while the case was already in court to their knowledge. That is the case to be met. Since the defendants dogged the point and lapsed into their arguments in their NPO, which has been dismissed as totally lacking in merits, they conceded that they did what was wrong.

The defendants’ constitutional and primary duty is to respect a court, once a case is filed and served on them, and not to resort to self-helps. It is not their statutory duty disrespect a court. What a defendant could do when a case is already in court against it, be it a public authority, is to defend it, and if it finds it is frivolous and meant to hold it from performing its lawful duties, bring up an application of urgency for accelerated hearing, asking for punitive cost in the event that the court agrees with it, and not to resort to self-help to foist a fait accompli on the court. No court would tolerate self-help. The rule that a court would not grant injunction to restrain a public authority from performing its lawful duties is not wrapped in the toga of the Rock of Gibraltar, which cannot be moved or shifted. It is a pedestal or principium from which the court starts the examination of such application for injunction and means, the applicant has to prove exceptional circumstances to get it. It is therefore absolutely wrong for the defendants to assume the function of a court to determine dispute and assume that its self-help must be rubber-stamped because, it is being sought to restrain it from performing its lawful duties. Lawfulness of public duty is a question of fact.

Relying on the authorities of: Garba v. FCSC & Anor. (1988) LPELR-1304 (SC) 28-29, C-E; Military Governor Lagos State v. Ojukwu & Anor (1986) LPELR-3186 (SC) 44, A-B; Agbai & Ors. v. Okogbue (1991) LPELR-225 (SC) 69-70, F-A; Nwakire v. COP (1992) LPELR-2097 (SC) 42-43, A-D; Sodade & Ors. v. Imagie & Ors. (1989) LPELR-20222 (CA) 23-24, F-A; and particularly NIC’s decision in Ejiogu v. UNN & Ors[53], I dismiss the CA and its WA against the MNII as totally lacking in merits, and accordingly, hereby grant the MNII as prayed.

I assessed the costs on the frivolous NPO and the cost of bringing application for interlocutory injunction at N300Thousand [Three Hundred Thousand Naira] only and accordingly hereby grant it. And it takes immediate effect. The case shall proceed to hearing on the merits. That ends the two motions.

CONCLUSION.

The claimant won all points. The NPO was dismissed and while the MNII was granted in full and costs of N300Thousand awarded with immediate effect, and the case adjourned for hearing on the merits. Consequently, the consolidated rulings are accordingly hereby entered today Friday Dec 19, 2025, under my very hand, as the presiding judge.

.............................................

Hon. Justice Oluwakayode Ojo Arowosegbe

Presiding Judge

Enugu Judicial Division

National Industrial Court of Nigeria

[1] At https://www.nicnadr.gov.ng/nicnweb/displayr.php?id=10199 [accessed Dec 18, 2025].

[2][2]At https://nicnadr.gov.ng/nicnweb/details.php?id=10279&p=Mr.%20Durojaiye%20Nicholas-VS-%20National%20Law%20Drug%20Enforcement%20Agency [accessed Dec 18, 2025].

[3] “Unfair labor practices: A legal analysis”, International Journal of Social Science Research and Development, Vol 6, Issue 1, 2024, at https://www.socialsciencejournal.net/assets/archives/2024/vol16issue1/6003.pdf [accessed Dec 18, 2025].

[4]Cited from Constance Thomas et al, “The use of international labour law in domestic courts: Theory, recent jurisprudence, and practical implications” at https://www.researchgate.net/profile/Martin-Oelz-2/publication/265424058_The_use_of_international_labour_law_in_domestic_courts_Theory_recent_jurisprudence_and_practical_implications/links [accessed Sep 28, 2025] p. 271-272.

[5]Normlex, “List of Instruments” at https://normlex.ilo.org/dyn/nrmlx_en/f?p=NORMLEXPUB:12200:0::NO::: [accessed Jul 24, 2025].

[6]Normlex, “List of Instruments” at https://normlex.ilo.org/dyn/nrmlx_en/f?p=1000:12200::::P1200_INSTRUMENT_TYPE_CODE:P [accessed Jul 24, 2025].

[7]Normlex, “List of Instruments” at https://normlex.ilo.org/dyn/nrmlx_en/f?p=1000:12200::::P12200_INTSTRUMENT_TYPE_CODE:R [accessed Jul 24, 2025].

[8]Catherine Barnard et al ed., The Future of Labour Law: Liber Amicorum Bob Hepple QC [Hart Publishing, Portland, Oregon, 2004] p. 254, para 1.

[9] M. Biagi, “International Labour Law: Special contribution to the previous, 1997, edition of the ‘Globalization and Workers’ Rights’ at https://training.itcilo.org/actrav_cdrom1/english/global/law/lablaw.htm [accessed Dec 17, 2025].

[10] Ibid.

[11] B.B. Kanyip, “Employment Law at Crossroads: Reflecting on the Past Decade of Decent Work Advocacy and Charting the Next – Some Reflections” being a keynote address at the Employment and Labour Law Conference 2025 held Jul 9, 2025 at the Civic Centre, V.I. Lagos. See paras 9, 11 & 12. Justice Kanyip, NIC’s President, is a member of the ILO Committee of Experts [CEACR], who are just 20 selected in the world.

[12] “Forward: The Role of Contract in Modern Employment Relationship” Texas Wesleyan Law Review, School of Law, Texas A & M University, Vol 10, Issue 1, 10-1-2003 at https://scholarship.law.tamu.edu/cgi/viewcontent.?article=1148&context=txwes-Ir [accessed Aug 13, 2025].

[13] “Employment Agreements: Special Contracts Deserving of Special Treatment” at https://www.austlii.edu.au/nz/journals/CenterLawRw/2008/4.pdf [accessed Jul 13, 2025] p. 113.

[14]UGC NET Commerce Notes, “Special Contracts Meaning, Conditions, Etc. for UGC NET” at https://textbook.com/ugc-net-commerce/special-contracts [accessed Jul 13, 2025]. See also J.R. Lewis, “Special Contracts” at https://link.springer.com/chapter/10.1007/978-1-349-1571-6_5 [accessed Jul 13, 2025] p. 69-92.

[15]At https://www.briefs.com/ca/central-bank-of-nigeria-v-adani-mega-system-limited-ca-abj-cv.1300-2023-25th-april-2025/ [accessed Jul 20, 2025].

[16] Breen Creighton [supra] p. 257-258.

[17] At https://www.ilo.org/international-labour-standards/maritime-labour-convention-2006 [accessed Oct 25, 2025].

[18] Nigeria ratifies the Maritime Labour Convention, 2006 (MCL, 2006) at https://www.ilo.org/resource/news/nigeria-ratifies-maritime-labour-convention-2006-mlc-2006 [accessed Nov 7, 2025].

[19]Black’s Law Dictionary [Ninth Deluxe Ed.] 1381 and, LSD, “Legal Definitions – reasonable time” at https://lsd.law/define/reasonable-time [accessed Jul 22, 2025].

[20]Wex Definition Team, Cornell Law School, “Reasonable Time” Legal Information Institute [last reviewed 2020] at https://www.cornell.edu/wex/reasonable_time [accessed Jul 22, 2025].

[21]NICN/LA/178/2002 – delivered Jul 28, 2022, paras 109-110, especially para. 109 at https://www.nicnadr.gov.ng/nicnweb/display2.php?id=7221 [accessed May 13, 2025].

[22]At https://www.nicnadr.gov.ng/nicnweb/display2.php?id=9175 [accessed Apr 7, 2025].

[23] [supra] p. 255.

[24] https://normlex.ilo/dyn/nrmlx_en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:103259 [accessed Dec 17, 2025].

[25]At https://compedium.itcilo.org/encompedium-decisions/industrial-court-of-the-republic-of-botswana-mapho-c-ganelang-v-tyreworld-ltd-case-no-ic-169-13 [accessed Aug 8, 2024].

[26]At https://compendium.itcilo.org/en/compendium-decisions/industrial-court-of-trinidad-and-tobago-bank-and-general-workers2019-union-v-home-mortgage-bank-3-march-1998-no.-140-of-1997 [accessed Aug 8, 2025].

[27]At https://compendium.itcilo.org/en/compendium-decisions/supreme-court-of-georgia-d-b-v-tbilisi-state-university-2-october-2014-case-no-as-106-101-2014 [accessed Aug 8, 2025].

[28] (2012) KEHC 2402 (KLR) at https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2402/eng@2012-09-21 [accessed Apr 24, 2025].

[29] (2015) KECA 181 (KLR) at https://new.kenyalaw.org/akn/ke/judgment/keca/2015/181/eng@2015-12-04 [accessed Apr 25, 2025].

[30]“Acas working for everyone: Making working life better for everyone in Britain” at https://www.acas.org.uk [accessed Dec 17, 2025].

[31] About us at https://www.acas.org.uk/about-us [accessed Dec 17, 2025].

[32]Ivan Israelstam, “The Labour Dispute System – How It Works” Labour Guide at https://labourguide.co.za/ganeral/the/labour-dispute-system-how-it-works [accessed Dec 17, 2025].

[33]The Legal School, “Advantages and Disadvantages of Alternative Dispute Resolution (ADR)” at https://thelegalschool.in/blog/pros-and-cons-of-adr [accessed Dec 19, 2025]; Adam Bernard, “Alternative Dispute Resolution (ADR) in Civil Litigation” at https://adambernards.co.uk/alternative-dispute-resolution--adr-in-civil-litigation-/ [accessed Dec 19, 2025]; and White Code Mediation and Arbitration Centre, “Alternative Dispute Resolution (ADR): Disputes Which Cannot Be Settled By Alternative Dispute Resolution” (ADR) at https://viamediationcentre.org/readmews/MzM1/Dispute-which-cannot-be-settled-by-Alternative-Dispute-Resolution-ADR [accessed Dec 19, 2025].

[34] Ibid.

[35] 4^th Edit. Vol 28, p. 206, para 604.

[36] (2013) LCN/6216 (CA) at https://lawcarenigeria.com/mr-onu-agha-uduma-v-attorney-general-of-ebonyi-state-ors-2013/ [accessed Apr 30, 2025].

[37] Ross Hendriks, “Arbitration in South African Labour Law: Nature, Procedure, and Reviewability of Awards” [Oct 30, 2025] in Polity at https://m.polity.org.za/article/arbitration-in-south-africa-n-labour-law-nature--procedure-and-reviewability-of-awards-2025-10-30 [accessed Dec 18, 2025].

[38] Atty Gabriel C. Abiola, “Burden of Proof in Labor Disputes: Employer’s Duty to Prove Wage Payments” [Oct 6, 2021] at https://www.asglawpartners.com/labor-law/2021/10/06/burden-of-proof-in-labor-disputes-employers-duty-to-prove-wage-payments/ [accessed Dec 18, 2025].

[39] DPH Legal – Employment law specialists, “What Is ACAS And What Do They Do?” at https://dphlegal.com/what-is-acas-and-what-do-they-do/ [accessed Nov 8, 2025].

[40]GB, “Time Limits and calculator – Employment Tribunal claims” at https://employmenttribunal.claims/employment-law/tribunals/time-limits-and-calculator/ [accessed Nov 8, 2025]. See also Law works, “Limitation periods – Table 2: Employment law limitation periods” at https://www.lawworks.org.uk/sites/default/files/files/lw-cr-Limitation-periods-rev1.pdf [accessed Nov 8, 2025].

[41] Ibid.

[42]At https://natlex.ilo.org/dyn/natlex2/natlex2/files/download/77502/The%20Employment%20Act,%202007.pdf [accessed Dec 19, 2025].

[43] George Kashinde, et al, Kashindis’ Digest of Employment Cases: A comprehensive digest of employment and labour relations cases in Kenya Vol II [Flamekeepers Publishing Ltd, Nairobi, Kenya, 2023] p. 80-81

[44] https://new.kenyalaw.org/akn/ke/judgment/keca/2018/827/eng@2018-02-16 [accessed Dec 19, 2025].

[45] Hansard 1803-2005 – 1930s – 1932 – December 1932 – 13 December 1932 – Commons Sitting – London Passenger Transport (Re-Committed) Bill HC Deb 13 December 1932 Vol 273 CC286-96 at https://api.parliament.uk/historic-hansard//commons/1932/dec/13/new-clause-public-authorities-protection#S5CV0273P0_19321213_HOC_383 [accessed May 11, 2025].

[46] Sujata Balan, “The Public Authorities Protection Act 1948 – A Case for Repeal” 34 JMCL at https://ejournal.um.edu.my/indeex.php/JMCL/article/download/16285/9793/32246 [accessed May 9, 2025].

[47] Hansard, House of Commons, UK Parliament> Hansard> Commons: 26 Oct 1953: Public Authorities Protection Act (Actions) Volume 518:debated on Monday 26 Oct 153 at https://hansard.parliament.uk/Commons/1953-10-26/debates/49dbfcd7-3e0a-4713-adfa-16e319ed841/PublicAuthoritiesProtectionAct(Actions) [accessed Aug 13, 2025].

[48] Black’s Law Dictionary [supra] p 317.

[49] Sujata Balan, “Public Authorities Protection Act – A Case for Repeal” 34 JMCL at https://ejournal.um.edu.my/index.php/JMCL/article/download/16285/9793/32246 [accessed May 9, 2025].

[50] 494, F.

[51] Ekaterine Kardarva, “Proportionality Principle as a Response Instrument to Challenges of Modern Labour Law” Journal of Law, No. 1, 2017 at https://jlaw.tsu.ge/index.php/JLAW/article/download/1846/1196/1586 [accessed Jul 17, 2025]; Guy Davidov, “The Principle of Proportionality in Labour Law and its Impact on Precarious Workers” [posted: 30 Oct 2012] Comparative Labor Law & Policy Journal, Vol. 34, No. 1, 2012 at https://download.ssrn.com/12/10/29/ssrn_id2168275_code1892193.pdf?response-content-disposition=inline&X-Amz-Security-Token=IQoJb3JpZ [accessed Jul 17, 2025]; Pnina Alon-Shenker and Guy Davidov, “Applying the Principle of Proportionality in Employment and Labour Law Contexts” McGill Law Journal, Vol. 59:2, Sep 2013 at https://lawjournal.mcgill.ca/article/applying-the-principle-of-proportionality--in-employment-and-labour-law-contexts/ [accessed Jul 17, 2025; and Susan B. O’Brien, “Reasonable response versus proportionality in employee dismissal cases: A comparison between the Employment Rights Act 1996, s 98/(4) and the Equality Act 2010, s 13(2), and s 19(2)(d)” at https://www.northumbriajournals.co.uk/index.php/sjppar/article/download/923/1308/2834 [accessed Jul 17, 2025].

[52] Uduma’s case [supra].

[53] At https://nicnadr.gov.ng/judgement/details.php?id=6705 [accessed Dec 19, 2025].

Professional Email Signature