[1] https://www.smp.org/dynamicmedia/files/c8796469b808e83860785a7686ae8595//TX004285_2_handout_2B_The_Universal_Declaration_Human_Rights.pdf  [accessed Jul 17, 2024] and also, https://www.qhrc.qld.gov.au/_data/assets/pdf_file/0008/22022/QHRC_A3Poster_UDHR.pdf [accessed Ju 17, 2024].

[2]  Youth For Human Rights, “United Nations Universal Declarations of Human Rights” at https://www.youthforhumanrights.org [accessed Jul 17, 2024].

[3] The United Nations in Nigeria at https://nigeria.un.org/en/about//about-theun [accessed Jul 17, 2024].

[4] https://indiankanoon.org/doc/72602775/ [accessed Jul 8, 2024].

[5] https://compendium.itcilo.org/en/compendium-decisions/the-national-industrial-court-of-nigeria-in-the-abuja-division-mrs-folarin-oreka-maiya-v-incorporated-trustees-of-clinton-health-access-initiative-nigeria-ors-11-november--2011-case-no.-nic--abj-13-2011 [accessed July 15, 2024]. See also in https://www.nicn.gov.ng/nicnweb/display2.php?id=883 [accessed Jul 15, 2024].

[6] Prof. Dr. Ali Kaya et al, “The Right to Work as a Fundamental Human Right” European Scientific Journal May 2019 Edition, Vol. 15, No. 14, DOI10.19044/esj.2019.v15nl4p151.  URL:http://dx.doi.org/10.19044/esj.2019.v15n14p151 also at https://eujournal.org/index.php//esj/article/download/12059/11493 [accessed Apr 09, 2024].

 

[7] Courts and Tribunals Judiciary, “Judicial review” in How the law works at https://www.judiciary.uk/how-the-law-works/judicial-review/ [accessed Jul 9, 2024].

[8] Suit No. CA/IL/2021 – delivered by the Ilorin Division, Court of Appeal Apr 14, 2022.

[9]In Transnational Human Rights Review at https://dititalcommons.osgoode.york.ca/thr/vol3/iss1/2/ [accessed Jul 15, 2024].

[10] National Journal of Labour and Industrial Law, Volume 3, Issue 1 at https://www.researchgate.net/profile/Temple-Damiari/publication/349923982_Revisiting_the__Contoversies__on_the_Jurisdiction_of_the_National_Industrial_Court_of_Nigeria_over_Labour_related__Human_Rights_Matters_/links/6047743aa6fdcc9c7822097c/ [accessed Jul 8, 2024]. See also in Academia.edu at https://www.academia.edu [accessed Jul 8, 2024].

[11] (1987) LPELR-40648 (SC) 66-67, A-68.

[12] https://www.thesaurus.com/browse/enforcement [accessed Jul 16, 2024].

[13] https://www.reserachgate.net/publication/307825931_General_considerations_on_the_enforcement_application_of_law/fulltext/57ceb3c608ae83b374621c3c/General-considerations-on-the-enforcement-application-of-law.pdf?origin=publication_details&_tp=eyJjb250ZXh0lj7lmZpcnNOUGFnZSI6lnB1YmxpY2FOaW9uliwicGFnZSI6InB1YmxpY2FOaW9uRG93bmxvYWQiLCJwcmV2aW91c1BZ2UiOiJwdWJwdWJsaWNhdGlvbi9fQ. DOI: 10.151/jles-2016-0013 downloaded from PubFactory at 09/06/2016 02:04:30PM [accessed Jul 16, 2024].

[14] Blacks Dictionary, p. 109.

[15] Ibid, p. 569.

[16] Ibid, p. 108.

[17] Ibid, p. 569.

[18] [Posted Nov. 29, 2022] at www.loc.gov [accessed Dec. 8, 2022].

[19] The Administrative Tribunal of the ILO is the heir of the Administrative Tribunal of the League of Nations – see https://www.ilo.org > lang—en [accessed Dec. 8, 2022].

[20] [Updated last July 7, 2000] at www.ilo.org [accessed Dec. 8, 2022].THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

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

 

DATE:  FRIDAY JULY 19, 2024     

SUIT NO: NICN/EN/49/2023

 

BETWEEN:

 

BASIL OFFOH………..……………………………………. CLAIMANT

 

AND

 

INSTITUTE OF MANAGEMENT AND TECHNOLOGY ENUGU

PROF. AUGUSTINE UCHECHUKWU NWEZE                 DEFENDANTS

BURSAR, INSTITUTE OF MANAGEMENT AND TECHNOLOGY ENUGU                                

 

APPEARANCES:

1.                 LEARNED B.C. OGUINE WITH P.O.C. ILOELUNACHI – FOR THE CLAIMANT.

2.                 LEARNED N.W. ILOBUIKE WITH NNEKA UGBENE – FOR THE RESPONDENTS.

 

JUDGMENT

INTRODUCTION

ORIGINATING MOTION [OM] commenced this suit November 7, 2023 and, it has Affidavit in Support [AS]. The following reliefs were formulated for the suit:

1.     A DECLARATION of court that the stoppage of the claimant’s October 2023 salary for an undisclosed verifiable reason amounts to unfair labour practice and breach of the claimant’s fundamental human right guaranteed by both the Constitution of the Federal Republic of Nigeria 1999 (As amended) and the Universal Declaration of Human Rights by the respondents against the claimant.

2.     AN ORDER of Court directing the respondents, particularly the 2^nd respondent to pay to the claimant within seven (7) days of judgment in this application his unpaid October 2023 salary.

3.     AN ORDER of Court restraining the respondents, their agents, servants and privies from further stoppage of claimant’s earned salaries without following due process of the law

4.     AN ORDER of Court awarding to the claimant the sum of N50, 000, 000 (Fifty Million Naira Only) jointly and severally against the respondents as exemplary damages for the unjustified, wicked, unlawful and unauthorized stoppage of the claimant’s October 2023 salary and for which the claimant has suffered and continues to suffer avoidable psychological torture, reputational discomfort and economic distress.

5.     N5,000,000 being cost of this suit.

 

The respondents did not file Counter Affidavit [CA], however, they filed a Notice of Preliminary Objection [NPO] on the 14^th of December 2023, to which the claimant reacted by filing a Reply on Points of Law [RPL] on the 15^th December 2023. Thereafter, the matter came up first before me on the 16^th January 2024 and next, on the 25^th April 2024. On this date, the claimant’s counsel sought to adopt his OM and Written Address [WA] as adjourned whilst the learned counsel to the respondents informed the court that they only filed a NPO and, the court instructed them to file their reaction to the main suit, for which they applied for an adjournment to enable them do so. The claimant’s counsel objected to this, on the ground that it was a ploy to continue to punish the claimant, whose salary had been stopped since October 2023 and asked for cost of N400Thousand, if the Court was mindful to granting adjournment. The respondents’ counsel replied that, since the issue of cost was brought in, he preferred that the matter went on as fixed on the merit and that, they would slug out any unfavorable decision at appeal – [p. 3, para 3 of the Record of Proceedings]. Thereafter, the Court allowed the case to proceed as adjourned.

Therefore, the claimant’s counsel learned B. C. OGUINE adopted his Written Address [WA] on the OM as well as the RPL in reaction to the NPO.  The learned claimant’s counsel went further to argue that the respondents’ NPO ought to have been regularized and ended his adumbration. The respondent’s counsel N. W. ILOBUIKE ESQ thereafter adopted the WA filed in respect of the NPO and urged the Court to strike out the suit. The learned respondents’ counsel thereafter and responded to the learned claimant’s objection that the NPO was not regularised by arguing that, it was radical process, which could be lawfully filed at any time without penalty. Thus ended the learned respondents’ counsel’s adumbration. Consequently, the case was adjourned to June 25, 2024 for consolidated ruling and judgment. However, as the judgment was not ready on this date, it was adjourned off record sine die. That being the end of summary of the proceedings, I move to the summary of the parties’ processes.

 

SUMMARY OF THE PROCESSES FROM BOTH SIDES

A: Summary of the Claimant’s OM

            The claimant personally deposed to the AS of the OM. He deposed to the status and roles of the respondents. He also deposed that the employment relations are governed by Chapter 10 of the Senior Staff Conditions of Service [Conditions of Service], which did not provide for the withholding of salaries. He deposed too that, the 1^st respondent directed the 3^rd respondent to withhold his salary. He deposed that, being a Chief Lecturer, his monthly salary was N384,796.92. The claimant also deposed that, the respondents in October 2023 paid the staff but withheld his own salary without any reason, for which he briefed his counsel, who accordingly wrote to the 2^nd respondent. He deposed that, the 2^nd respondent refused and neglected to respond or comply with the demands of the said letter. He added that the stoppage and withholding of his salary constitute a violation of his right to fair hearing, right to personal property, and right to payment for work done. He added too that, he has suffered mental, emotional and psychological torments, as well as severe economic deprivations with adverse effects on his dependents, due to the attacks on his salaries by the 2^nd respondent without any justification. Thus, ended the AS of the OM. I move to the WA.

            Learned B. C. OGUINE franked the claimants’ WA on the OM and argued that, Order 3 Rule 1(c) of the NIC Rules provides for the commencement of civil proceedings by originating motions. The learned counsel also argued that, originating motion could commence the claimant’s case, founded on breach of fundamental human rights. The learned counsel went further argued that, the Conditions of Service did not provide for the withholding of salary, but that the only section, which comes close to withholding of salary, is S. 10(2)(ii), which deals with denial of salary increment on the basis of misconduct, which is not applicable in this case.

            The learned counsel cited S. 30(3) and 30(7) of the Institute of Management and Technology Law Cap ‘97’ Revised Laws of Enugu State 2004 [IMTL] and argued that, it was not applicable to this case. The learned counsel in furtherance of the above point submitted that, the Council did not direct the 2^nd respondent to set up a committee, as there was no allegation of misconduct or inefficiency. The learned counsel also cited SS. 254C-(1)(f) & 36(2)(a) of the Constitution and Babebe v F.R.N (2019) 1 NWLR (Pt. 1652) pp. 91 at 103 to buttress the point that, he was neither treated fairly nor given fair hearing and even when he inquired to know the reason for the stoppage of his salary, he was ignored.

            Finally, the learned counsel cited Article 17(2), 23(3) of the Universal Declaration of Human Rights [UDHR], to the effect that, no one shall be deprived of his property and, which also guaranteed workers’ right to just and favourable remuneration. The learned counsel laid emphasis on the fact that, this Court has the full power to order the respondents to pay the claimant his October 2023 salary, cost of the suit and impose damages on the respondents. The learned counsel urged the court to grant the reliefs claimed. This ends the claimant’s WA. I shall now proceed to summarise the NPO and its WA, being the only processes filed against the suit.

           

B: Summary of the Notice of Preliminary Objection [NPO]

            Learned C. CHUMA OGUEJIOFOR franked the NPO. The grounds upon which the NPO was brought are that: i), the suit is incurably incompetent, being a matter between an employer and an employee, cannot therefore be dealt with by fundamental rights enforcement procedure rules, as a fundamental rights case, ii), the claim has nothing to do with any breach of the claimant’s fundamental rights under Chapter IV of the Constitution and that, iii), the principal and ancillary reliefs are hinged on employment issues between an employer and an employee and iv), the suit could not be dealt as fundamental rights’ case.

The learned counsel urged the court to strike out this suit on the ground that, a fundamental rights case that raised issues of employment cannot be commenced via an originating motion but by a writ of summons, as evidence ought to be taken orally, to ascertain the truth. The learned counsel argued that, the claimant’s claim determines the jurisdiction to hear the case and cited Adeyemi v Opeyori (1976), 9-10 SC 31 at 51. The learned counsel also argued that, the claim of the claimant in the instant case, relates to employer-employee dispute, wherein the employee perceives his employment to be terminated and, not a breach of fundamental rights and as such, the court should strike out the case. The learned counsel cited Tukur v Government of Taraba State (1997) 6 NWLR (Pt. 510) pp. 549 at 574-575.

            The learned counsel argued that, the suit is defective and incompetent due to the procedure adopted by the claimant, which is not in accordance with the due process of the law.  Also, the learned counsel argued too that, the stoppage of the claimant’s salary is not one of the fundamental rights contained under Chapter IV of the Constitution. The learned counsel cited Phillip Biokpo v National Drug Law Enforcement Agency and Ors (2021) LPELR 56250 (CA). Finally, the learned counsel urged the court to consequently strike out the suit. Thus ended the NPO. I shall proceed to the RPL.

 

C: Summary of the Reply On Points of Law [RPL]

Learned B. C. OGUIN franked the RPL. The learned counsel argued that the objectors did not seek the leave of Court to bring the NPO and neither was the said application filed with a Counter Affidavit [CA] in response to the OM. The learned counsel reiterated the law under which the claimant’s case was brought, which the objectors clearly ignored, by rushing to the conclusion that the Court should strike out the suit in limine. The learned counsel argued that, the NPO was brought under S. 6(6) of the Constitution which provisions were not set out. The learned counsel agreed with the argument of the objectors that the claimant’s case determines the jurisdiction of the court but pointed out that, this argument suggests that the Court lacks the jurisdiction to entertain matters founded on fundamental rights/Chapter IV of the Constitution. In addition, the learned counsel argued that the argument of the objectors that the suit ought to be commenced by writ of summons suggests that the OM is not a way of commencing suits before this court, which is not the position of the law. The learned counsel cited S. 254 (1)(f) of the Constitution and Order 3 Rule 1(1)(c) of the NIC Rules. Furthermore, the learned counsel argued that the objectors failed to state how the claimant’s claim is an ancillary claim and not, the main claim.

            The learned counsel argued that the objection raised as to the incompetency of the suit is based on the non-compliance with the rules of court. The learned counsel pointed out that the rules of court cannot confer substantive jurisdiction but only procedural jurisdiction and cited the case of Atanda v Ajani (1989) 3 NWLR (Pt. 111) 511. The learned counsel argued too that, the process that commenced this suit is competent, as it is one of the forms provided for under Order 3 Rule 1 and that, Order 3 Rule 21(2) requires a party contesting non-compliance to do so timeously, which is within seven working days from the receipt of the originating process. The learned counsel submitted that, this was not done within the time stipulated by the rules, as the NPO was filed after 40 days without seeking leave of court to file out of time, which therefore makes the NPO incompetent.

            The learned counsel cited the case of Colito (Nig.) Limited v Honourable Justice Titi Daibu (2010) 2 NWLR (Pt. 1178) to buttress the point that courts, in ensuring that substantial justice is done, has moved away from technicalities and urged the Court to jettison the urge to use technicality to defeat justice. Learned counsel urged the Court to hold that the objection lacks merit. The learned counsel went ahead to urge the court to strike out the NPO.  In addition, the learned counsel argued that the NPO must be filed along with a CA and where not done, the respondents are presumed to have accepted the facts presented by the applicant. The learned counsel urged the court to hear the substantive application alongside the NPO, which implies giving its ruling on the NPO and judgment on the substantive suit, as the aim of the objectors’ failure to file a CA to the substantive suit is to punish the claimant. In conclusion, the learned counsel argued that, the claimant was given no reason why his salary was stopped, as the law requires the respondents to follow dues process.

 

COURT’S DECISION AND THE RATIONES DECIDENDI

PART 1: DECISION ON THE NPO

Reading the grounds and, the arguments in support of the NPO, they essentially dovetailed on the three issues, summarised thus:

1.                           The employment related suits could not be brought under the Fundamental Rights [Enforcement] Procedure Rules [FREP Rules];

2.                           Breach of employment rights cannot amount to breach of fundamental rights and;

3.                           The suit could only be commenced by pleadings, as it needs oral evidence to resolve it.

 

First, let me state that since the NPO seemed to challenge the substantive jurisdiction of the Court, it is a radical process that could be filed anytime and anyhow – see Galadima v. Tambai & Ors (2000) LPELR-1302 (SC) 21, E-F. Hence, the claimant’s counsel’s objection against the manner of bringing the NPO is dismissed. Be that as it may. The claimant/respondent to the NPO argued against the NPO that, since the objectors refused to file CA, the facts of the case must be taken as established and that, the suit was properly commenced via OM. First, let me state that this suit was not commenced via the FREP Rules but purely via the NIC Rules by way of originating motion pursuant to Order 3, R 1(c) of the NIC Rules. So, the arguments about FREP Rules is misplaced because, by virtue of the non-obstante S. 254C-(1)(d)&(k) and, 254E-(1) of the Constitution, the NIC’s jurisdiction to entertain fundamental right actions relating to labour is not subject to S. 46 of the Constitution and consequently, the FREP Rules made pursuant to S. 46 of the Constitution are not directly applicable to the NIC. NIC’s jurisdiction on Chapter IV of the Constitution is directly subject to the NIC Rules made by the HPNICN.

The NIC’s jurisdiction and procedure in this regard are non-obstante all the provisions of the Constitution without exception and therefore, totally subjugate the provisions of S. 46 of the Constitution and the FREP Rules to have an unobstructive existence. Though, by virtue of S. 254D-(1) of the Constitution, construed along with Order 1, R. 9(1) of the NIC Rules, filing an action under the FREP Rules in the NIC would not be out of the place, as the NIC could borrow the rules of any court to do substantial justice in case of vacuum in its rules. By virtue of Order 1, R 9(1)-(3) and Order 5 of the NIC Rules, the ratio decidendi established by the Supreme Court in Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 (SC) is fully in force in the NIC to the effect that:

“When there is no provision as to the procedure to be followed in enforcing the jurisdiction conferred, the plaintiff is entitled to bring the case in the usual form of an action and have it heard. This is because courts make less fuss about complaints based solely on adjectival law that tend only to impede the attainment of justice…’ – [293, E-F; 321, B-D]

An aggrieved person can enforce his rights under the African Charter by way of an action commenced by a writ or by any other permissible procedure such as the Fundamental Rights (Enforcement Procedure) Rules, 1978. It follows that either the procedure for fundamental rights, or judicial review or common law or statutory procedure for obtaining declarations, an injunction or damages may be used where appropriate. On this case, the Court of Appeal was wrong to have held that the respondent commenced his action under the Charter by way of a wrong procedure and the trial court similarly wrongly declined jurisdiction to entertain the action for the same reason.” – [293-294, F-A; 348-349, H-B, E-F]

  

The NIC, being a labour court, makes much less fuss about procedure and technicalities but a lot of desire to do substantial justice and would readily jettison any procedural rules that tend to impede substantial justice. The marked distinction between jurisdiction and power must be underscored here. The FREP Rules did not confer jurisdiction on the High Courts but only procedural powers relating to how to file and adjudicate fundamental right actions: the procedure of litigating, hearing and determining fundamental right actions. And by dint of this fact, the NIC, pursuant to SS. 6(1), (3), (5)(cc) & (6)(a)-(b), 254D-(1) of the Constitution and S. 54(1)&(2) of the NICA, which give it the right to exercise all the powers of a High Court, construed along with Order 1, R 9(1)-(3) of the NIC Rules, which gives it the power to borrow the rules of any other court and to discard any technical irregularity, undoubtedly has the right to entertain an application filed under the FREP Rules or any other permissible rules, where there is inadequacy in its own rules regarding the matter. And such inadequacy exists in Order 3, R 1(c) of the NIC Rules, which provides for originating motions as a means of commencing actions in the NIC without specifying the types of actions that are to be so commenced under it. And also, there is the failure of the NIC to make provisions for commencement of actions pursuant to fundamental rights contained in other statutes than Chapter IV of the Constitution.

For all practical purposes, where the questions concerned the adjudication of cases over which the NIC has non-obstante jurisdiction, it is a High Court and more [SS. 12-19 of the NICA] and, S. 46(2) of the Constitution, which directly and expressly subjects itself to all other provisions of the Constitution cannot be urged to whittle down the non-obstante jurisdiction of the NIC over fundamental right questions as they relate to labour relations. This is more particularly so, as S. 46(2) of the Constitution directly gives room for any other court to have original jurisdiction over the hearing and determination of any application for redress of breach or threatened breach of fundamental rights, notwithstanding the provisions of S. 46(1) of the Constitution, provided this is constitutionally sanctioned. And S. 254C-(1)(d) of the Constitution sanctioned the NIC’s jurisdiction in this wise.

It must be noted that the FREP Rules, though made pursuant to S. 46 of the Constitution, is nevertheless a subsidiary legislation and could therefore not negate S. 54(1)&(2) of the NICA and Order 1, R 9(1) of the NIC Rules, aside the fact that, S. 254D-(1) of the Constitution is superior to the FREP Rules, being direct constitutional provisions granting the NIC all the powers of a High Court, of which the powers contained in the FREP Rules are part. It must be noted too that S. 254D-(1) of the Constitution now directly validates S. 54(1)&(2) of the NICA and that, S. 46(2) of the Constitution granting the High Courts original jurisdiction on matters contained in Chapter IV of the Constitution directly subjects itself to all the other provisions of the Constitution, meaning that, S. 46 is even subject to all other provisions of the Constitution, aside the extraordinary non-obstante provisions of S. 254C, to which it is much more subjected. All other authorities on this issue did not consider the implications of SS. 6(1), (3), (5)(cc), (6)(a) & (b), 254D-(1) of the Constitution, 54(1)&(2) of the NICA and Order 1, R 9(1)-(3) of the NIC Rules nor do they take into consideration Abacha v. Fawehinmi [supra]. For these, they cannot be authorities for this case, where these statutory provisions are newly construed.      

The argument that breach of labour/employment rights cannot amount to breach of fundamental right is also, with the utmost respect, not correct under the current configuration of the Third Alteration Act. That might have been the position before the enactment of the Third Alteration Act but since the inception of the Third Alteration Act, the position has shifted such that, the former authorities could no longer be applicable to the current state of the law – Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) to the effect that, the Third Alteration Act revolutionised labour law in Nigeria. By virtue of S. 254C-(1)(f)-(h)&(2) of the Constitution, this Court is bound to take into consideration in its adjudication of labour cases questions of international best practices, conventions and international labour standards. SS. 33&34 of the Constitution guarantee the right to life and the right to dignity of human person.

The right to dignity of human person forbids degrading or inhuman treatments and subjection to slavery or servitude. S. 44 of the Constitution guarantees right to property in Nigeria. Arts 4, 5, 6, 17, 23 & 30 of the Universal Declarations of Human Rights[1] [UDHR] to which Nigeria is signatory[2], having been admitted as member of the UNO in 1960[3], guarantee the rights: not to be enslaved, against cruel treatment, to be treated equally, to own property, to income and, above all, Art 30 prohibits all persons and authorities from interfering with the rights guaranteed under the treaty. Having made provisions on the basic labour rights as fundamental rights, S. 254C-(1)(f)-(h)&(2) of the Constitution makes these international best practices and treaty applicable in Nigeria together with the associated Arts in line with composite construction of composite instruments. And the superior courts in India, including the Indian Supreme Court, in interpreting similar provisions of the Indian Constitution and associated treaties, have repeatedly held that, right to salary is fundamental right to property and that, arbitrary refusal to pay earned salary, amounts to violation of fundamental right to property, rights against inhuman and degrading treatments  – J. Aswartha Narayana v. The State of Ap[4] [delivered December 17, 2021].

Rule 2 of the FREP Rules defines fundamental rights as encompassing the rights contained in Chapter IV of the Constitution and the rights contained in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act [ACHPRA]. Art 14 of the ACHPRA guarantees right to property and that, right to property could only be lawfully violated in accordance with a law that is just and, Art 35 of the ACHPRA guarantees right to work under equitable and satisfactory conditions, which includes, equal pay for equal work. Implicit in “equal pay for equal work” is the plenitude that, the right to pay for work done is pedestal and totally inviolate as fundamental right because, the right to pay for work done must be logically implied as more fundamental than the right to equal pay for equal work, which has been elevated to fundamental right. A worker must first enjoy right against whimsical seizure of his salary before he begins to talk of right to equal pay for equal work. Art 23 of the Universal Declarations of Human Rights directly guarantees right to salary.

Hence, right to pay is fundamental right in Nigeria and could only be sued upon or enforced as breach of fundamental right simpliciter in the NIC alone, provided the breach arose from employment relations. That is the intendment of the non-obstante provisions of S. 254C-(1)(d), (f)&(k) of the Constitution. Likewise, the right against discrimination on account of sex could be sued upon, as breach of fundament right simpliciter at the NIC exclusively, as was the case in Oreka Maiye v. The Incorporated Trustees of Clinton Health Access Initiative Nigeria & Ors[5], which was commenced via originating motion by a female employee for discrimination against her on account of pregnancy, as breach of fundamental rights under SS. 37 & 42 of the Constitution and, the ACHPRA simpliciter and; the NIC lawfully assumed exclusive jurisdiction and found for the claimant.

Hypothetically too, where there is published guidelines for interview for jobs in Nigeria, specifying that people from certain tribes are not eligible, the prospective employee could take a preemptive action at the NIC, to file action to enforce [apply] his/her fundamental right against discrimination in employment. Another good example are the various regulations in the police and paramilitary institutions, barring women from marrying without the consent of the police authorities, which restrictions are not extended to their male counterparts and also, the regulations that forbid unmarried policewomen from being pregnant at the pains of dismissal. These infringements are purely situated within employment relations – Regulations 126 & 127 of the Nigeria Police Regulations made under the Police Act Cap. 19, LFN, 2004. These regulations and similar others could be sued upon in the NIC exclusively, as violative of the fundamental rights enshrined in SS. 37, 42, 254C-(1)(g) of the Constitution, the UN CEDAW and, ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) [C111] and its Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111) [R111] simpliciter, as the main cause of action by affected female security personnel.    

The in-thing in labour jurisprudence around the world these days is that, some labour rights and, including the right to payment for work done and rights against discriminations at workplaces on accounts of race, colour, political leanings, and discrimination, especially against women and sexual harassments, are treated as fundamental rights across the globe[6]. And more important is the fact that, in the determination of these fundamental rights’ questions, the extrapolative all pervasive influence of S. 254C-(1)(f)-(h)&(2) of the Constitution hovers over them, as a guide on the determination of the expanse of these rights in the context of industrial relations and workplace occurrences over which the High Courts lack jurisdiction – S. 254C-(1) of the Constitution. 

Hence, by virtue of S. 254C-(1)(d), (f)-(h)&(2) of the Constitution, which now enjoined the NIC to take cognisance of international best practices, conventions, international labour standards and, ratified treaties, all previous authorities decided prior to the Third Alteration Act or after the enactment of the Third Alteration Act, which did not consider the implications of the combined effects of S. 254C-(1)(d), (f)-(h)&(2) of the Constitution in relations to the application of international best practices and international labour standards and conventions to the adjudication of labour matters, are distinguished from the facts of the present case wherein they are being considered in line with Sahara Energy Resources Ltd v. Oyebola [supra]. They are therefore not authorities for this case wherein the applicability of these provisions to the question of right to payment of salary is considered as fundamental right in line with international best practices in labour relations, conventions and international labour standards.

However, I wish to say that I agree entirely with the learned objectors’ counsel’s argument that the action was brought mainly pursuant to breach of fundamental rights. Irrespective of the arguments of the claimant’s learned counsel, what determines the nature of the cause of action is not what counsel decides to call it but what the affidavits [pleadings] and the reliefs framed, in line with the applicable law, revealed in matters where affidavits constitute the pleadings and evidence – PDP v. Uche (2023) 9 NWLR (Pt. 1890) 523 (SC). The AS of the OM says that the stoppage of the claimant’s October 2023 salary amounts to unfair labour practice and breach of the claimant’s fundamental proprietary rights to his earned salary. S. 254(f) of the Constitution deals with unfair labour practices and international best practices as new spectra of causes of actions in Nigeria and, these are clearly outside the canopy of Chapter IV of the Constitution. So, the claimant’s causes of action are two-in-one and not only allegations of breach of fundamental rights under Chapter IV of the Constitution but also allegations of unfair labour practices. But the fact remains that, the whimsical stoppage of his salary alleged, as I have shown above, falls squarely under fundamental rights by virtue of international best practices as shown in the India example. So, the claimant’s cause of action is entirely based on breach of fundamental rights. And I so hold.

It is also necessary to draw attention to the fact, the rights secured in S. 254C-(1)(f) of the Constitution are more fundamental rights, that are even superior to the rights secured in Chapter IV of the Constitution by reason of their non-obstante status which make them stand above all other provisions of the Constitution, including the provisions of Chapter IV of the Constitution, but the fact remains that, they are outside the confines of Chapter IV of the Constitution and therefore, outside the confines S. 46 of the Constitution and the FREP Rules. But they could be enforced lawfully too under the FREP Rules or any other rules like the originating motion provided by Order 3, R 1(c) of the NIC Rules, under which the action was actually brought. Applications under the FREP Rules are actually originating motions by virtue of the definition of “originating application” under Order 2 of the FREP Rules. After all, the FREP Rules extended the frontiers of the fundamental rights beyond the confines of Chapter IV of the Constitution to the ACHPRA and made the ACHPRA justiciable under the FREP Rules – Order 2 FREP Rules. But it must be noted that when the NIC’s jurisdiction is activated under the FREP Rules, its jurisdiction is not thereby activated pursuant to S. 46 of the Constitution, but purely, pursuant to S. 254C-(1)(d) of the Constitution.

S. 254D-(1) of the Constitution and Order 1, Rule 9 of the NIC Rules only borrowed the vehicle of the FREP Rules to carry the soul, spirit and body of the NIC’s jurisdiction under S. 254C-(1)(d) to its destination of adjudicating and enforcing [applying] fundamental rights, as they relate to industrial relations. It is a universal legal practice that coordinate courts or superior courts borrow procedural rules from themselves or even foreign courts, to fill the vacuums in their own rules and, this does not mean the borrowing court exercises the jurisdiction of the court from which it borrows. It still exercises its own jurisdiction. And for that period and purpose, by the legal fiction engendered by S. 254D-(1) of the Constitution and Order 1, R 9 of the NIC Rules, the borrowed rules become that of the borrowing court, i.e. the NIC in this instance, as if they were originally made by the NIC. That the above surmise is correct is underscored by the Supreme Court when it underlined the need to be flexible on the procedure of litigating fundamental rights in FRN & Anor v. Ifegwu (2003) LPELR-3173 (SC) and held that, any originating process that makes clear the grievance, is sacrosanct. Whether the NIC is mentioned in S. 46 of the Constitution and the FREP Rules is immaterial, as it does not exercise its jurisdiction to adjudicate fundamental-rights under S. 46 of the Constitution and the FREP Rules, but pursuant to S. 254C-(1)(d) of the Constitution while it is listed as a superior court in S. 6(5)(cc) of the Constitution. That is what matters.

I now look at the contention that this suit could only be brought by writ. The objection on this ground has two flanks. The first is as a matter of pure procedure, to the effect that the cause of action could only be litigated via writ because; only oral evidence could resolve the matter. My take on this is that, though, the authorities are to the effect that a judge needs not construe the CA to determine that an action ought not to be commenced via originating summons/motion but via pleadings and that, the nature of the facts in the Statement of Facts would show whether they are hostile in nature. But I know too that a court of law has no jurisdiction to engage in speculation as to what the defence to an action could be - Ivienagbor v. Bazuaye (1999) 6 NCNJ 235 at 243–244 lines 40 – 45. The two principles of law are in contest here. This is an action whereby the claimant deposed that the staff salaries were fully paid to all staffers in October 2023 while only his was left unpaid without any explanation as to why this happened and that, the letter by his solicitor on this, received no response till date.

To my mind, except I am to engage in unhealthy speculation to imagine a defence or an excuse for the respondents’ action in this instance, I cannot see what is hostile in these facts to warrant insisting that the action ought to have been commenced via complaint [writ] and pleadings. And what is more, the respondents willingly conceded to the facts of the case by positively electing not to file CA to the case and, even directly urged the Court to deem the NPO as their full answer to the merit of the case and that, if the decision of the Court goes against them, the Court of Appeal is there to correct the error of this Court – [p. 3, para of the Record of Proceedings]:

“Ilobuike – Since the claimant is arguing on our application for adjournment and asking for cost, let us move the application and the NPO. If it favours us good; if not, we can contest it at the Court of Appeal.

Court – Go ahead to move as proposed by the defence counsel.”

 

The objectors were cocksure of the iron-cast nature of their objections. By the ordinary rule of law, where a matter is commenced by originating motion or originating summons, the proper way of defending it is to file CA and, if there is need, file NPO along with the CA, so that they could be heard together. Where this is not done, the law is that the respondent is deemed to concede to the facts of the case as true and that, s/he is only contesting the law on them - CBN v. Interstella Communications Ltd & Ors (2017) LPELR-43940 (SC) and, Adeleke v. OSHA (2006) 16 NWLR (Pt. 1006) 608 to the effect that:

“Where a defendant files a preliminary objection to the jurisdiction of the court to hear a suit commenced by originating summons without filing a counter-affidavit to the plaintiff’s summons, the defendant is deemed to have admitted the depositions in the plaintiff’s affidavit.”   

 

The respondents are therefore deemed to have admitted the evidence contained in the AS of the OM. OM is similar to originating summons. Both are activated by affidavits and not by pleadings. So, the same law applies to both originating summons and OM on the need for a respondent, who decides to contest an OM to file CA to the merits of the case, even if s/he would also file an NPO alongside. The respondents are deemed to have admitted the evidence contained in the claimant’s AS of the OM. And it must be noted that, both pleadings and evidence were admitted in the instant case and not only pleadings, as an affidavit serves the dual functions of both pleadings and evidence in the instant scenario. So, declaratory reliefs are grantable on the uncontested evidence, as distinct from pleadings – Harding & Anor v. The Administrator General and Public Trustee of Lagos State & Anor (2016) LPELR-40990 (CA) 18-19, F-C & 30-31, D-B.  Thus, the evidence in the AS of the OM is deemed admitted and, I am bound to make use of the pieces of evidence in deciding this case. Now, let me look further at the larger contention that the suit ought to have been commenced by complaint. The learned claimant’s counsel had argued in the RPL that the rules of this Court provide for OM, which he used.

That is correct. Order 3, R. 1(c) of the NIC Rules truly provides for this but while Order 3 listed out the types of suits that could be commenced by the all the other originating processes listed out in Order 3, R. 1, the rules, surprisingly did not specifically provide for the types of actions that may be commenced by OM but it would appear that the types of actions are covered under Order 3, R. 4, which covers applications for judicial reviews, where orders or declarations or injunctions are sought. Judicial reviews relate to the method of questioning the decisions of administrative, executive or ministerial authorities considered to be ultra vires constitutional or statutory provisions:

“Judicial review is a type of court proceedings in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached[7].”

 

The major complaints in this suit is that the respondents breached the claimant’s fundamental rights to property [his salary] and rights to fair hearing and fair labour practices, by whimsically withholding his earned salary for October 2023 without notifying him of the offence he committed to warrant such action and also, failing to give him the opportunity to defend himself before the unilateral stoppage of his salary and without offering him any explanation till date and that; by these, the respondents contravened S. 254C-(1)(f) of the Constitution relating to unfair labour practices and international best practices and also contravened S. 36(2)(a) of the Constitution relating to the right to be heard before any adverse administrative, executive or ministerial decision could be made against any person in Nigeria and thereby, also infringed his fundamental right to property, which is an invocation of the breach of S. 44 of the Constitution. Clearly, the main grouse raised is the question of ultra vires the fundamental rights, of the action of stopping or withholding the claimant’s salary for October 2023 in the circumstances depicted in the AS of the OM. Thus, OM lawfully commenced this action. And there is a judicial precedent to this effect in Maiya’s case [supra], in which this Court endorsed the use of originating motion to litigate similar breach of fundament rights in the context of employment relations. Originating motion seems to be the NIC’s equivalence of the FREP Rules. 

Though, I observed that Order 3, R. 2(2)(a)&(b) of the NIC Rules specifically provides that, where the suit relates to causes of action on Chapter IV of the Constitution, as enjoined by S. 254C-(1)(d) of the Constitution in relation to labour matters and, the reliefs claimed encompass interpretation and application, the suit must be filed via complaint, the equivalence of writ in the NIC, but via originating summons, where it only involves questions of interpretation. It is clear that this suit involves both questions of interpretation and application, going through the reliefs sought. There is clearly a confusion emanating from the NIC Rules in not itemizing the types of cases to be commenced via originating motion and the claimant cannot be punished for opting to use originating motion in a situation which clearly suggests that originating motion is very appropriate in the fashion of the FREP Rules and, which the NIC’s itself had endorsed in Maiya’s case [supra] and which the Supreme Court also endorsed in Abacha v. Fawehinmi [supra] and FRN & Anor v. Ifegwu [supra]. Order 1, R 9(2) of the NIC Rules and S. 254D-(1) of the Constitution definitely find favour with what the claimant did in the instant case; and I so hold.

More so, the action also raised the issue of infringement of S. 254C-(1)(f) of the Constitution and the UDHR, which are not part of Chapter IV of the Constitution but are nonetheless fundamental rights and therefore, not captured by Order 3, R 2(2)(a)&(b) of the NIC Rules, though, by extrapolative analogies from the Indian case of Aswartha Narayana v. The State of Ap [supra] and, Order 2 of the FREP Rules on the definition of “fundamental rights”, the rights created in the UDHR are also fundamental rights. Where the claimant discerned that there are no disputes of facts, such suits relating to only interpretation and application of the several statutes could be properly commenced by OM, which is synonymous with the FREP Rules. I venture to say that, where there are even disputes of facts, it could still be properly commenced via OM just like in the FREP Rules, which says that all actions on Chapter IV of the Constitution may be commenced via the FREP Rules irrespective of whether the facts are hostile. The facts that could not be resolved by documentary evidence could be isolated for trial-within-trial before judgment – Onabiyi & Ors v. I.O.N Petroleum Limited (2017) LPELR-41921 (CA) 9-13, B-A. I therefore hold that the action was properly commenced via OM. And I observed that the learned objectors’ counsel had raised the issue that the action raised question of fundamental rights alone and therefore, the NIC lacks jurisdiction.

The learned counsel had also argued that disputes from employment relations could never give rise to breach of fundamental rights, an argument which I have nullified earlier on, but the fact remains that the learned counsel impliedly raised the question of the action being based on fundamental rights in Chapter IV of the Constitution. The action herein is two-pronged, raising questions of the ultra vires of the respondents’ actions by virtue of the doctrine of unfair labour practices and breach of fundament rights in Chapter IV of the Constitution simpliciter. Being so, the suit is not caught by the strictures provided in Order 3, R. 2(2)(a)&(b) of the NIC Rules, being an amalgam of allegations of infringement of the fundamental rights protected by dint of S. 254C-(1)(f) of the Constitution and, breach of fundamental rights created by dint of SS. 36(2)(a) and 44 of the Constitution, Arts 14 & 35 of the ACHPRA and Arts 4-6, 17, 23 & 30 of the UDHR. This is because, the unfair labour practices here, in the whimsical stoppage of the claimant’s October salary, was deemed breach of fundamental right and until the deeming, the claimant was right to use any originating process he deemed would substantially achieve the enforcement of his fundamental rights under these sundry other statutory provisions, for which no specific rules had been made in the NIC Rules, the NIC not having made any rule of procedure in the nature of how the FREP Rules accommodated ACHPRA as fundamental rights.

Being that the claimant conceived that the facts are undisputed; he was right to employ the instrumentality of OM. And the law in NIC is that, notwithstanding non-compliance with its rules, the important thing is substantial justice of the case. And in this, forms and precedents are mere guides that cannot becloud the doing of substantive justice. And wherever they tend to becloud the doing of substantive justice, this Court has the burden-duty, by virtue of SS. 254C-(1)(f) of the Constitution, SS. 13, 14 & 15 of the NICA and Order 1, R. 9 and Order 5 of the NIC Rules, to jettison the rules for substantive justice, which is denoted by unhindered access to hearing cases on the merits without undue regard to technicalities. And when one considers the provisions of Order 11, R. 10 of the NIC Rules, which enjoins the NIC to place any matter relating to arrears of salaries on the fast track and, Order 3, R. 12 of the NIC Rules, which gives the details to be met in actions relating to arrears of salaries, which the claimant adequately met, it becomes clear beyond doubt that the claimant employed the best originating process that conduces with speed and efficiency, to thrash out this case, which by the rules of this Court, needs expeditious disposal. The FREP Rules were made for fundamental right actions in order to avoid tardiness in matters brought pursuant to Chapter IV of the Constitution. Why should the procedure be different in the NIC, which even prides speed and efficiency as watchwords in the adjudication of all labour matters, as attested by Adegboyu v. UBA[8]. To insist on any other originating process than the OM in this instance, is to encourage delay and crass technicality, which are anathema to labour courts all over the world – Adegboyu v. UBA [supra]. Be that as it may, I now move to a related question which was not directly raised in this suit but which is germane to the NIC’s jurisdiction on questions of fundamental rights as they relate to labour matters.

I move to the question of arguments that the NIC has no jurisdiction over applications for enforcement of fundamental rights or rather, no jurisdiction to enforce fundamental rights. This argument seemed based on the use of the words “enforcement” and “enforcing” in S. 46(2) of the Constitution, which conferred the High Courts with jurisdiction and powers over fundamental right issues. This view was not directly argued in the extant objection but must be examined, for completeness, since objection about the NIC’s jurisdiction on fundamental rights was frontally invoked and I observed that, there have been a lot of literatures on this, both academic and judicial. Let me examine the academic front first because; they seemed to lay very strong foundations for the judicial front and appeared to be well articulated by carefully reviewing the previous judicial authorities on the issue.

I will look at two highly cerebral but antagonistic representative articles in this regard. The trio of Abdullahi Saliu Ishola, Adekunbi Adeyeye and Daudu Momodu in their learned article titled “Rethinking the Jurisdiction of the National Industrial Court in Human Rights Enforcement in Nigeria: Lessons from South Africa[9]” argued that, when the question is strictly for the enforcement of fundamental rights, the NIC lacks jurisdiction, notwithstanding that the cause of action is situated frankly in industrial relations because, it has no jurisdiction to enforce fundamental rights but only jurisdiction for the interpretation and application, as they relate to industrial relations. They sought to make a distinction thereby between interpretation and application at one hand and, enforcement at the other hand. The learned authors took the view of enforcement in its post-judgment acceptation and application, as not including enforcement, which view is, with utmost respect, mistaken in misreading the contexts of their usages in SS. 46(2) & 254C-(1)(d) of the Constitution. This error of thought, with the greatest respect, leads to the palpable suggestion that the NIC could only entertain questions of fundamental rights, if they arose as ancillary matters within a suit and not as the main claim or cause of action. But, let me state that I shall not delve into the other issues raised in the article, which are not directly relevant for our discussion here.

Thus, application for enforcement of fundamental rights simpliciter under the FREP Rules without the interposition of any other cause of action, is tagged main claim or main cause of action, over which the NIC lacks jurisdiction, even if within the context of industrial relations, while when mingled with another cause of action, as ancillary claim, if within the context of industrial relations, the NIC would have jurisdiction. First, I wish to point out that neither S. 46(1)&(2) nor 254C-(1)(d) of the Constitution talked about main claims and ancillary claims. The introduction of these tags is purely interpretative and must be supported by the pertinent contexts to stand. Secondly, and more importantly, if the idea that the NIC’s jurisdiction on enforcement of fundamental rights questions, is intended to be ancillary, as posited, it would not have been necessary at all, to make the special provisions of S. 254C-(1)(d) of the Constitution, as all courts, including even the inferior tribunals, have the jurisdictions to interpret, apply and enforce the Constitution, including the provisions of Chapter IV, as incidentals to all matters over which they have jurisdiction, the Constitution being the grundnorm from which all other laws spring, has bearings on the meaning and efficaciousness of all other laws. Thus, the magistrate courts, even customary courts and other inferior tribunals, enforce the provisions of Chapter IV of the Constitution daily, as incidentals or ancillaries to the causes of actions brought before them, without reliance on S. 46 of the Constitution and the FREP Rules.

S. 254C-(1)(a) has sufficiently clothed the NIC with the general jurisdiction to interpret, apply and enforce the pertinent provisions of the Constitution, including those of Chapter IV, that are pertinent or ancillary to the determination of all causes of action over which it has jurisdiction. That S. 254C-(1)(d) of the Constitution specially and specifically provides for NIC’s jurisdiction on Chapter IV of the Constitution, is a pointer to the fact that S. 254C-(1)(d) of the Constitution is not talking about ancillary causes of action but an answer to S. 46(1)&(2) of the Constitution in accordance with the special nature of industrial relations law and the specialised nature of the NIC. The philosophy is clearly to put the NIC in exactly the same footing as the High Courts under S. 46 of the Constitution, with regard to Chapter IV of the Constitution but within the context of industrial relations. The unalloyed rule of interpretation is that the legislatures do not use words in vain. The NASS and the State Houses could not have inserted S. 254C-(1)(d) into the provisions of S. 254C of the Constitution with the aim of repeating what S. 254C-(1)(a) of the Constitution has sufficiently and priorly covered. That S. 254C-(1)(d) is there is to serve a purpose different from all the other provisions of S. 254C. And we know the purpose in the context of S. 46(1)&(2) which had done similar thing for the High Courts. The NIC, having been made a superior, but specialised court, has to be specially catered for, with respect to the jurisdiction conferred on the High Courts by S. 46 of the Constitution, which is the reason for S. 254C-(1)(d) of the Constitution.    

However, Temple Adewari Damiari[10], in “Revisiting the Controversies on the jurisdiction of National Industrial Court of Nigeria over Labour-related Human Rights Matters”, articulated an opposing view to Ishola et al. The learned author reviewed the state of the law and concluded forcibly and convincingly, showing how and why the NIC has exclusive jurisdiction to enforce fundamental rights as they relate to labour. The learned author showed too that the attempt to make a distinction between application and enforcement is nonstarter. The learned Damiari puts it in this beautiful language:

“What then is the actual purport of Section 46(1)? The provision of Section 46(1) contemplates an action seeking remedy over breach or threatened breach of fundamental rights. This has erroneously been viewed as accommodating only remedies for enforcement and not remedies for interpretation and application of labour-related human rights breaches or threatened breaches. Going by the wordings of Section 46(1) of the Constitution, it is absolutely possible to have a breach or threatened breach upon which a suit may be commenced at the NIC for purposes of interpretation and application of an employee’s fundamental right.”

 

The learned author gave the hypothetical example of where a boss harasses a female employee on the grounds that she could not perform her duties because, she was a woman and more particularly so, from a particular tribe in Nigeria and, the boss proceeded to constitute a panel to be headed by himself to investigate the woman for general inefficiency. The learned author posited that the woman could take a preemptive action to safeguard her fundamental rights: to dignity of human person, against discrimination on account of sex and tribe and, against the boss being the accuser, prosecutor and judge or, wait till the conclusion of the panel’s deliberations, to challenge the consummated infringements, by applying to the NIC for the interpretation and applications of these provisions, as they apply to his/her employment. Clearly the scenario painted depicted the fundamental rights secured by SS. 34, 36, 42(1)&(2) of the Constitution. I cannot agree more with the learned author’s position, except that he too did not quite appreciate the correlations between “enforcement” and “application” in the contexts in which they were used in SS. 46(2) and 254C-(1)(d) of the Constitution, even though, while appreciating that both words correlate. Let us now examine the truism that both words mean exactly the same thing in the contexts in which they were employed in SS. 46(2) & 254C-(1)(d) of the Constitution.

The words “enforcement” and “application” as used in S. 46(2) and S. 254C-(1)(d) of the Constitution mean exactly the same thing. Both words are synonyms in the contexts and collocate. It must be noted that S. 46(2) of the Constitution has two segments. The first deals with the original jurisdiction of the High Courts over matters contained in Chapter IV of the Constitution as a continuation of S. 46(1) of the Constitution, which grants the High Courts jurisdiction over Chapter IV of the Constitution, by way of elaboration, depicting the nature of the High Courts’ jurisdiction over Chapter IV of the Constitution as original jurisdiction. The second segment captures the orders, which the High Courts could make or the powers they could exercise while adjudicating on Chapter IV of the Constitution and these, are after the assumption of jurisdiction pursuant to S. 46(1) and the first segment of S. 46(2) of the Constitution. Thus, it is clear the second segment of S. 46(2) of the Constitution did not confer jurisdiction but only the powers to make any orders or issue any writs or give any directions for the purposes of enforcing or securing the enforcement of the fundamental rights which the suers might be entitled to.

First, it must be noted that S. 46(1)&(2) of the Constitution did not at any point give the High Courts jurisdiction to enforce the provisions of Chapter IV of the Constitution, but only gave them the jurisdiction to “hear and determine” any applications [mark the word application] brought for the purposes of seeking redress for breach or threatened breach of the provisions of Chapter IV. That is the jurisdiction granted. And that exactly is the jurisdiction granted the NIC too. Both used the word “application” in the relevant sections with respect to the jurisdiction granted. It must also be noted that, S. 46(3) of the Constitution did not also grant power to make rules for the enforcement of fundamental rights but power to: “make rules with respect to the practice and procedure of a High Court for the purposes of this section.” It is clear from a very careful reading of the entire S. 46(1)-(4) that, the High Courts are not at any point granted the jurisdiction [distinction between jurisdiction and power impacted] to enforce fundamental rights, but the jurisdiction to adjudicate applications brought to apply the provisions of Chapter IV, just like the NIC. This is made more clear when S. 46(4) of the Constitution goes on to reinforce the second segment of S. 46(2), by saying, the NASS can grant additional powers: “…necessary or desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by this section”. Note that, the words: “enforce” and “enforcement”: used in S. 46(2) were abandoned in S. 46(4) and, the concentration was on “powers” and “jurisdiction” marking clearly the distinction between power and jurisdiction and, these powers are made manifest, as are purely necessary for the purposes of better effectuating the jurisdiction conferred.

From the foregoing, it is self-evident that the words “enforcing” and “enforcement” that appeared in the second segment of S. 46(2) are relative to the of powers: orders, writs, directions etc. that the High Courts could exercise in the course of adjudicating applications brought for the purposes of applying [enforcing] the provisions of Chapter IV of the Constitution. The issue of enforcing or enforcement only comes up in relation to the powers of the High Courts to make any orders, issue any writs or any directions for the purposes of enforcing or securing the enforcement of any redress which the High Courts may consider that the applicants are entitled to. There is the mistaken conception that fundamental rights are standalone concepts, which could be applied or enforced in the abstracts, without contexts. This, I beg with respect to say, is not correct. Fundamental rights cannot be applied or enforced in vacuum, as their existences can only be made known in contexts and they could only be violated or breached in contexts. They are contextual rights, which contexts cannot be divorced from their adjudications. Therefore, they are always enforced or applied in the contexts in which their violations occurred.

So, the idea of their enforcement or application simpliciter can only be, and it is, a relative term and not absolute and the truism of this argument is proved by the fact that, all the superior courts of first instance in Nigeria before the Third Alteration Act, were jointly given the jurisdiction to apply them and these courts equally had jurisdiction over all subjects relative to the fundamental rights, the only divergence being on the parties with regards the Federal High Court. In that event, the issue of whether application or enforcement of fundamental rights was in the context of industrial relations could not and did not arise, since they all alike had jurisdiction over labour relations and all subject matters relative to the adjudication of fundamental rights within their territorial jurisdictions. In this regard, it must be noted that the Federal High Court is not a specialised court but a general jurisdiction court on federal matters exclusively. So, when the NIC was established with exclusive subject-matter jurisdiction on industrial relations, and, which thereby completely cut off this subject non-obstante the High Courts, it is natural that the situation could not remain the same with S. 46 of the Constitution, which was why S. 254C-(1)(d) of the Constitution cut off the jurisdiction of the High Courts over application [enforcement] of fundamental rights relative to industrial relations and placed it squarely non-obstante in the hands of the NIC.

If it is realised that S. 46(2) of the Constitution actually subjects the jurisdiction granted the High Courts to the other provisions of the Constitution, the futility of arguing that the High Courts have exclusive jurisdiction to apply fundamental rights in the context of industrial relations, becomes very apparent. For example, the right against slavery or servitude only exists relative to labour/industrial relations, likewise the newly created right to earned salary/wage, which entirely exists in the context of employment relations. Would it be plausible to say applications to apply or enforce these rights simpliciter could only be entertained by the High Courts, to the exclusion of the NIC, even when S. 46(2) of the Constitution itself clearly indicates that another court outside the High Courts could have original exclusive jurisdiction over Chapter IV of the Constitution, provided the Constitution sanctioned it and, S. 254C-(1)(d) of the Constitution clearly grants NIC exclusive jurisdiction in this regard? The answer is capital no.

The High Courts never had exclusive original jurisdiction over Chapter IV of the Constitution at any point. That this is so, is manifested by S. 46(2), which conferred the High Courts with original jurisdiction on fundamental rights, when it begins thus: “Subject to any other provisions of this Constitution…” I have not found that attentions have ever been paid to this in any of the literatures I have read and its implications. The Constitution clearly left the room open for interpositional jurisdiction of any other court sanctioned by the Constitution and this; the Constitution did with regard to the NIC in S. 254C-(1)(d). Let us get this right because, it is important for the understanding of our subsequent discussions. In as much as we agreed that powers, and not jurisdiction, are granted in the second segment of S. 46(2) of the Constitution, and taking into consideration the significance of the distinction between jurisdiction and power - Adigun & Ors v. AG Oyo State & Ors[11] - there is no basis for the contention that the NIC cannot exercise the powers to enforce the provisions of Chapter IV of the Constitution simpliciter, within the context of labour relations.

The question is: without the second segment of S. 46(2), would the High Courts have had the powers to make their jurisdiction therein fructify? The answer is yes. Exercise of powers to back up superior courts’ decisions is an inherent power in all superior courts – S. 6(6)(a) of the Constitution; Bola & Anor v. Latunde & Anor (1963) LPELR-15475 (SC) and, Ugba & Anor v. Suswan & Ors (2014) LPELR-22882 (SC) 109, A-C. The whole essence of hearing and determining a suit is the making of the necessary orders to secure the enforcement of the decisions reached, which is also the essence of the application of the law to facts of cases to arrive at the apportionment of rights and wrongs and, the making of the appropriate orders in consonance with the decisions thrown up by the application of the laws to the facts of the cases. That is exactly the purpose, which the words “enforcing” and “enforcement” served in S. 46(2) of the Constitution, in the sense of power to carry into effect the decisions reached i.e. enforcing [applying] the provisions of Chapter IV as distinct from enforcing judgment.

Besides, S. 6(1), (3) & (6)(b) of the Constitution vests all the superior courts alike with the same powers to make their decisions fructify. When these provisions are construed with S. 6(6)(a), the inescapable conclusion is that, irrespective of the second segment of S. 46(2) of the Constitution, the High Courts would have had the powers to make their decisions on Chapter IV of the Constitution fructify by making the appropriate orders and granting the necessary reliefs. And good enough, S. 254C-(1)(d) is also couched in terms of the NIC having the “jurisdiction to hear and determine” causes of action arising from Chapter IV of the Constitution, as they relate to labour relations exactly like the jurisdiction conferred by S. 46(1)&(2) on the High Courts. “To hear and determine” is actually the very last phrase in S. 254C-(1)(d) of the Constitution. Since it is undoubted that S. 254C-(1)(d) of the Constitution gives the NIC the jurisdiction to interpret and apply the provisions of Chapter IV as they relate to industrial relations for the purposes of hearing and determination of any suits brought on Chapter IV of the Constitution, it follows that, by dint of S. 6(1), (3), (5)(cc), (6)(a)&(b) and 254D-(1) of the Constitution, the NIC is equally imbued with the powers in the second segment of S. 46(2) of the Constitution, to make efficacious its hearing and determination of causes of actions on Chapter IV of the Constitution as they relate to industrial relations.

In any case, as I have hinted earlier on, the words “enforcement” and “application” mean exactly the same thing in the contexts in which they were employed in SS. 46(2) & 254C-(1)(d) of the Constitution. The word “application” in S. 254C-(1)(d) of the Constitution could be perfectly replaced with “enforcement” and vice versa. The words “enforcing” and “enforcement” in S. 46(2) of the Constitution could also be perfectly replaced with ‘applying’ and ‘application’. The words “enforcing” and “enforcement” in S 46(2) of the Constitution cannot be divorced from the contexts of “redress” and “hearing and determination” which denote the jurisdiction actually granted the High Courts over Chapter IV of the Constitution, and not the second segment of S. 46(2), which denotes the powers exercisable after assumption of jurisdiction. When the second segment of S. 46(2) of the Constitution used the words “enforcing” and “enforcement”, they were used to reiterate the word “redress”, which S. 46(1) had earlier employed as the relief which the applicants under Chapter IV of the Constitution may be entitled to, such that, the words “enforcing” and “enforcement” in the second segment of S. 46(2) of the Constitution could also be substituted with ‘redressing’ and ‘redressment’.

Therefore, the words “enforcement” and “application” collocate in the sense in which they were employed in SS. 46(2) and 254C-(1)(d) of the Constitution in the sense of adjudication of causes on Chapter IV of the Constitution. In this wise, the Online Thesaurus[12] says  “enforcement” is a noun “as in requirement to obey; implementation of rule(s)” and says, its synonyms are “administration” and “application”. The erudite authors, Remus Daniel Berlingher, Ph.D and Georgeta Valeria Sabau, Ph.D, in their brilliant joint article: “General Considerations on the Enforcement (Application) of Law[13]” showed that, while these words do not collocate generally, as the word “enforcement” is wider than “application” but nevertheless, they mean the same thing [collocate] in the context of judicial adjudication. As could be seen, the learned authors showed that both words are synonymous and collocate in the sense of construing and applying statutory provisions, which is why the word “application” is put in bracket as synonym to “enforcement” in the article’s title. Hear how they expatiate on this:

“As regards judicial authorities, however, it should be underlined, in this context, that they do not have competence to issue normative acts, but only acts of individual application (judicial resolutions, decisions, sentences etc.) in relation to specific case.”

 

Clear from the above is that when used in relation to adjudication before judgment, the words “application” and “enforcement” collocate and mean that, in the application of the law to the facts of the case, the court engages, amongst others in: the resolutions and decisions [hearing and determination] and, the making of the necessary orders [sentences in criminal cases] or, the granting of the necessary reliefs, in terms of civil cases. Obviously, that exactly is the sense in which the word “enforcement” is used in S. 46(2) of the Constitution as collocative with “application” used in S. 254C-(1)(d) of the Constitution and vice versa. It is therefore in the sense of “enforcement” as employed in S. 46(2) of the Constitution that word “application” is employed in S. 254C-(1)(d) of the Constitution and not otherwise because; that is the only logical meaning the words could have in their instant contexts. The word enforcement, in the context of S. 46(2) of the Constitution, did not collocate with the processes of enforcement or execution of judgment, the sense in which the trio of Ishola et al construed them in their article, but only collocate in the sense of making orders to effectuate the decisions reached while pronouncing judgment. Illustrating the above is well honed by quoting how the Indian High Court arrived at its decision and orders in J. Aswartha Narayana v. The State of Ap [supra]:

“Applying the principle laid down in the above judgment to the present facts of the case, the fourth respondent dried up financial resources to meet the liability to pay salaries to its employees is not a ground and the fourth respondent cannot run away from discharging its duty to pay salaries having extracted work from the employees and such act is violative of the fundamental right guaranteed under Articles 21 and 300-A of the Constitution of India and Human Right under Article 25(1) of Universal Declaration of Human Rights. Hence, the plea of lack of financial resources to meet the liability is not a ground to defer payment of salary.

…In view of the foregoing discussion, I have no hesitation to hold that the action of Respondent No. 4 in not paying gross salaries to the petitioner since April & May, 2019 is nothing but pay docking, it is illegal, arbitrary and violative of Articles 14, 21 and 300-A of the Constitution of India, Human Right to livelihood guaranteed under Article 25(1) of Universal Declaration of Human Rights.

In the result, writ petition is allowed declaring the action of Respondent No. 4 in not paying salaries to the petitioner from April & May 2019 as illegal and arbitrary. Respondent No. 4 is directed to pay deferred salary to the petitioner since April & May 2019, within two months from today, together with interest @ [sic] 6% per annum on the deferred salary. No costs.”

    

Note the word “applying” which began the quotation, and which is the real focus of the lengthy quotation. It clearly showed that application of law [principle] or the application of the provisions of relevant statutes to the facts of cases, is the same as enforcement of the law or statutory provisions and that, making of the necessary orders or granting the necessary reliefs, as the acme of the application, is part and parcel of application [enforcement] of the law or statute. It would be observed that the necessary orders were made to carry into effect the result of the application of the law to the facts of the case without any further assurance. A statute is ‘applied’ to a factual situation for the purposes of deciding live issues, as distinct from mere interpretation, which is theoretical and, when live issues are determined by the application of law to the hard facts to arrive at the apportionment of blames and rights, with the utmost respect, it will be preposterous to say the same court will lack the authority to make the appropriate consequential orders, flowing from the declarations of rights and wrongs.

Interpretation leads to declarations whereby the court states emphatically what the statute says or means and, application leads to findings of wrongs and rights, leading to the making of necessary or consequential orders or the granting of the necessary reliefs to effectuate the decisions arrived at by the application of the law to the facts of the case. It is in this sense that the Black’s Law Dictionary employs the collocative meanings of ‘apply[14]’ and ‘enforce[15]’ in the context of laws and statutes, as meaning: “to apply the law to the facts of a case” and: “to give force or effect to (a law, etc.)” while ‘application[16]’ is defined in terms of a request or petition for a relief and, ‘enforcement[17]’ is defined as, “the act of or process of compelling compliance with law…” Implied in both is the making of orders or the granting of reliefs.

It is quite certain the means by which enforcement of the law, in the realm of adjudication, is done where there is violation or threatened violation challenged through the courts, is by the application of the law to the facts of the case and the declarations of the rights and the making of the consequential orders or the granting of the necessary reliefs to assuage the violations or the threatened violations. This is distinct from enforcement after judgment, which is meant mainly to secure obedience to the orders and the reliefs already granted in the judgment, by the application of the law to the facts. And it is sure that the contexts of these words in SS. 46(2) & 254C-(1)(d) of the Constitution are pre-judgment in relation to adjudication of suits or adjudication of applications for the enforcement or application of the provisions of Chapter IV of the Constitution. Since there is no argument that the NIC has the jurisdiction to interpret and apply the provisions of Chapter IV of the Constitution in labour context, it follows that, if it cannot enforce the provisions of Chapter IV of the Constitution, by making the necessary orders, the unsavoury result would be created that the applicants would have to go back to the High Courts to obtain the necessary orders consequent on the interpretation and application the NIC had done! It would mean the NIC is still an inferior Court in spite of the provisions of S. 6(5)(cc) & 254C of the Constitution. That could not have been the constitutional intendment.

And the opposite proposition is logically rife in that, S. 46(1)&(2) of the Constitution did not say the High Courts have the jurisdiction to interpret and apply the provisions of Chapter IV of the Constitution, whereas, S. 254C-(1)(d) of the Constitution, which confers the NIC with jurisdiction over Chapter IV of the Constitution, as they relate to industrial relations says, it has the jurisdiction to interpret and apply these provisions in the hearing and determination of causes of action over which it has jurisdiction. This clearly implies that, it has the jurisdiction to enforce these provisions in within the context of employment and labour relations, whether the suit is purely for enforcement, since enforcement is synonymous and collocative with application, with regard to adjudication of applications pursuant to infringements of statutory rights. It is important to note that S. 254C-(1)(d) of the Constitution did not introduce any distinction between ancillary and main claims, as the governing logic is, whether the suit asking for the interpretation and application of Chapter IV of the Constitution is in the context of labour and employment relations.

Like I held earlier, S. 254C-(1)(d) is actually direct equivalence of S. 46(1)&(2) of the Constitution and confers exactly the same jurisdiction on the NIC, except that NIC’s jurisdiction in that wise, is non-obstante within the context of labour relations, in line with the specialised nature of industrial relations and the NIC’s specialised jurisdiction. Hence, if a distinction is to be made with regard to ancillary and main claims, the NIC’s jurisdiction under S. 254C-(1)(d) of the Constitution covers enforcement of fundamental rights in industrial relations as the main claim, as S. 254C-(1)(a) covers its ancillary or incidental jurisdiction, where the enforcement of fundamental rights is only incidental to a main industrial relations claim that is outside fundamental rights. Another angle to this is that, since the High Courts are not directly conferred with the jurisdiction to interpret and apply the provisions of Chapter IV of the Constitution, in the logic of the objection against the NIC’s jurisdiction to enforce the provisions of Chapter IV of the Constitution, it follows that, the High Courts, which could only enforce these provisions, as they opined, must send the cases filed before them, relating to labour relations to the NIC to first interpret and apply these provisions, since the High Courts lack jurisdiction on labour matters, before reversion to them for the enforcement! Can the High Courts enforce causes of action within the context of labour relations? No.

 That is the preposterous implication of the arguments against NIC’s jurisdiction to enforce the provisions of Chapter IV of the Constitution in the context of labour, employment and workplace relations, simpliciter! But the truth of the matter, like I have stated earlier, is that S. 46(1)&(2) of the Constitution did not give the High Courts the jurisdiction to enforce the provisions of Chapter IV of the Constitution but the jurisdiction to hear and determine applications brought for redress for the violation or threatened violation of the rights conferred in Chapter IV of the Constitution, just like S. 254C-(1)(d) of the Constitution also confers on the NIC the exclusive jurisdiction to interpret and apply these provisions as they relate to labour and employment, in the hearing and determination of causes of actions over which the NIC has jurisdiction and, which are brought it as the main cases of action simpliciter for enforcement. By this, it is plainly manifest that the argument that when the application is for pure enforcement, the matter cannot come to the NIC is with respect, unsupportable in logic and law. To accede to this suggests, that by some incongruous means, the High Courts still retains jurisdiction over employment, labour and workplace relations, which S. 254C of the Constitution took away from them non-obstante. It must be noted that prior to the Third Alteration Act, the High Courts had jurisdiction over labour and employment relations and the impacts of the provisions of Chapter IV over them, whether the application was for enforcement simpliciter or otherwise. And do not forget that fundamental rights are purely contextual rights in the context of application or enforcement.

It was the entire jurisdiction that the High Courts could exercise hitherto with respect to fundamental rights in the context of labour relations that was excised and vested absolutely in the NIC by S. 254C-(1)(a)&(d) of the Constitution. Once this is understood, it would not be difficult to appreciate that the constitutional intendment is to give the NIC exclusive jurisdiction to hear and determine any application for the enforcement of the provisions of Chapter IV of the Constitution as they relate to labour and employment relations simpliciter. I think the confusion came partly from Order 3, R 1(c) and R 2(2)(a)&(b) of the NIC Rules, which could not make a clean bill between what is entailed in originating motions, originating summons and complaints. Had Order 3, R 1(c) been elaborated upon in the fashion of the FREP Rules, part of this confusion would have been cleared.  S. 254C-(1)(d) of the Constitution did not use the words main claims and ancillary claims and such divisive coinage cannot be invented to thwart the non-obstante provisions of S. 254C-(1)(d) of the Constitution.

To argue otherwise is to suggest that by some oblique logic, the High Courts have exclusive jurisdiction over some aspects of labour and employment relations arising from the application of enforcement of Chapter IV of the Constitution in spite of the clearly non-obstante provisions of S. 254C-(1)(d) of the Constitution and, contrary to the clearly expressed reservation in S. 46(2) of the Constitution that the High Courts’ original jurisdiction thereto is subject to the provisions of the Constitution, demonstrating in very clear terms, that the High Courts’ original jurisdiction on the provisions of Chapter IV is not absolute and subject to any other provisions of the Constitution, which are not even non-obstante, not to talk of the clearly non-obstante provisions of S. 254C of the Constitution, which are impacted in this discourse.

It is necessary to mention in this regard that, as in all labour and employment related adjudications; the NIC is enjoined to take into consideration international best practices, conventions and international labour standards, whose extrapolative or moderating effects extend to the adjudication of labour-related aspects of Chapter IV of the Constitution. This means the High Courts would lack the jurisdiction to obey these constitutional provisions, since only the NIC is exclusively conferred with the jurisdiction to utilise them: meaning that, their beneficial effects would be lost to the stakeholders, if the High Courts continue to exercise jurisdiction over labour-related aspects of Chapter IV of the Constitution for enforcement simpliciter. For example, the treatment of failure to pay earned salary and some other purely labour rights, as breaches of fundamental rights to property etc. in the international labour arena, which labour rights come squarely as breach of fundamental rights, would be denied to workers in Nigeria if could not litigated as enforcement of fundamental rights simpliciter! This unsavoury effect cannot be the contemplation of the Third Alteration Act.

Whether or not the application is for fundamental right enforcement simpliciter, so far it is in the context of industrial relations, the provisions of S. 254C-(1)(f)-(h)&(2) of the Constitution have moderating extrapolative effects on S. 254C-(1)(d) like all other provisions of S. 254C of the Constitution, which the High Courts lack jurisdiction to consider. I think part of the problem is also in the title of the FREP Rules, which stressed the powers conferred by the second segment of S. 46(2) of the Constitution instead of the jurisdiction. The FREP Rules could as well have been titled ‘Fundamental Right (Procedure) Rules’ without emphasis on the powers the High Courts could exercise thereto or just, ‘Fundamental Rights Violation Redress (Procedure) Rules’.

For example, taking a cue from the Indian case of J. Aswartha Narayana v. The State of Ap [supra] by the utilization of the extrapolative jurisdiction of the NIC under S. 254C-(1)(f)-(h)&(2) of the Constitution, the NIC knew that deprivation of salary is not only regarded as breach of fundamental right to property under Arts 19(1)(f), 31(1) & 300-A of the Constitution, impari materia with similar provisions in the Nigerian Constitution, but also breach of fundamental right to life by the deprivation of means of livelihood under Art 21 of the Indian Constitution. Thus, the NIC borrowed a leaf from this, to arrive at the same conclusion in the instant case. The High Courts, which have no such extrapolative [cosmopolitan] jurisdiction to take into consideration international best practices when construing the provisions of Chapter IV of the Constitution under S. 46(1)&(2) of the Constitution, would definitely come to a different disservice decision on the breach of the provisions of Chapter IV extrapolated from the context of industrial relations by adherence to the narrow interpretation of these provisions thus, defeating the avowed constitutional intendment [S. 254C-(1)(f)-(h)&(2) of the Constitution] to make industrial relations in Nigeria cosmopolitan. It was also observed in the Indian case [supra] that the action was brought via writ of mandamus to enforce these fundamental rights as the main claims and by way of affidavit and not by pleadings. Clearly, that is similar to the FREP Rules for the High Court in Nigeria and, the originating motion approved by the NIC vide Order 3, R 1(c) of the NIC Rules, though inelegantly.

Though, the Indian case was heard and determined in an Indian High Court, but as the NIC is a superior court in Nigeria, duly conferred with all the powers of a High Court and with specific jurisdiction on this matter, it goes without saying that the Indian example is illustrative of what should happen procedurally and jurisdiction-wise with regard to the question agitating our minds in the instant case. This shows irrefutably that, the NIC has the unobtrusive jurisdiction to entertain all suits on the enforcement of Chapter IV of the Constitution as they relate to labour relation whether brought as application for enforcement simpliciter [main claims] pursuant to S. 254C-(1)(d) or, in combination with other causes of action [ancillary claims] pursuant to S. 254C-(1)(a) of the Constitution; and I so hold.

We can now see that the conclusion of the trio of Ishola et al in their brilliant article cannot be correct, while Damiari’s conclusion is more pluasible. It is necessary before rounding up on the academic reviews of the NIC’s jurisdiction over Chapter IV of the Constitution to indicate that several judicial authorities, local and foreign, were cited in these articles, showing that the NIC only had jurisdiction to deal with questions of fundamental rights when they come up as ancillary questions in other main employment causes and therefore, cannot entertain questions of fundamental rights as the main cause of action. We have seen that the confusion partly came from the view that actions cannot be brought at the NIC pursuant to the FREP Rules, and as such, the NIC lacks jurisdiction over Chapter IV of the Constitution as main cause of action. I have shown sufficiently above, that all this is erroneous and that, even when an action is filed at the NIC under the FREP Rules, NIC’s jurisdiction is not invoked under S. 46 of the Constitution but purely under S. 254C-(1)(d) of the Constitution, which confers it with the exclusive jurisdiction to entertain actions on breach of fundamental rights as they relate to industrial relations. As my review has indirectly dealt with the municipal judicial authorities cited in these two learned works, it is no longer necessary to treat these municipal authorities individually more so that they are older authorities. I shall only now concentrate on the most recent Court of Appeal’s decisions in this area of the law, which echoed the judicial dichotomies.

These are: Ferdinand Dapaah & Anor v. Stella Ayam Odey (2018) LPELR-46151 (CA) delivered Dec 6, 2018; Diamond Bank Plc v. Chijioke Unaka & Ors (2019) LPELR-50350 (CA) delivered Jul 3, 2019 and; Extension Publication Limited v. Sunday Oyedepo (2022) LPELR-57302 (CA) delivered Mar 25, 2022. These are the most recent Court of Appeal’s decisions available to me on this thorny issue. Let me say first that I considered Bioko’s case cited by the learned respondents’ counsel largely irrelevant to this case because, it only held that fundamental rights actions must be the main claim and not that, this cannot happen within employment contexts. It did not therefore decide that the NIC has no jurisdiction on enforcement of fundamental rights. Just like the controversies identified in the two leading learned articles reviewed above, it appears that these cases had divergent opinions on the issue too. But first of all, I need to point out that all the Supreme Court cases referred to in these decisions were not decided under the Third Alteration Act and so, did not consider the innovations brought by the Third Alteration Act on this issue, as I have earlier shown above. It suffices to say in that Extension Publication Ltd [supra], the Court of Appeal held that:

“Section 46 Subsections (1), (2) and (3) of the Constitution…provide the court which can exercise jurisdiction in cases of enforcement of fundamental rights to be High Court. Under Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules…the word court is defined to mean:

‘the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.

So in cases, strictly for the enforcement of fundamental rights, the Federal High Court has concurrent jurisdiction with the High Court of the Federal Capital Territory, Abuja as well as the High Court of any of the 36 States of the Federal Republic of Nigeria.

The cases relied upon by the learned counsel for the appellant, such as Osunde v. Nasiru Shaibu Baba (2014) 44 WRN 65 and Nigeria Tobacco Plc v. Osifeso (2000) 14 WRN 37, are grossly inapplicable to this case because the claims therein were not totally or strictly for enforcement of fundamental rights. In those cases the claims for enforcement of fundamental rights were merely ancillary reliefs to other main claims.

Having regard to the respondents claims in this case and the clear and unambiguous provisions of Section 46 of the Constitution…and the Fundamental Rights (Enforcement Procedure) Rule made thereunder, the National Industrial Court did not have nor share concurrent jurisdiction whether full or partial with the Federal High Court over the suit.”

 

The cause of action in Extension Publication Ltd was arrest and detention in the course of industrial relations and the claimant filed application at the Federal High Court for enforcement of his fundamental rights. Earlier, in Dapaah’s case [supra], the Court of Appeal had held for similar reasons, as above, that the NIC had jurisdiction because, fundamental rights were ancillary to the main claim funded on dismissal. The cause of action in Dapaah’s case was sexual harassments, leading to dismissal of a female employee and she filed a complaint [writ] in the NIC under its rules. So, these two Court of Appeal cases are in agreement that NIC only had jurisdiction over fundamental rights, as ancillary claims. However, in the interpositional Court of Appeal’s Diamond Bank’s case [supra], the Court of Appeal held to the contrary, most emphatically that, the NIC has exclusive jurisdiction to enforce of labour related fundamental rights as the main cause of action:

“It is obvious from the claims sought and the case made out on the pleadings that the major plank rested upon by the first Respondent in propagating his complaints was the fundamental rights provisions contained in Chapter IV of the 1999 Constitution… It is correct, as stated by Counsel to the Appellant, that hitherto, before the subsequent amendments, by the provisions of Section 46(1) and (2) of Chapter IV of the 1999 Constitution…and Order 1, Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, the High Court and the Federal High Court were the two courts vested with concurrent original jurisdiction to hear and determine all applications for enforcement of fundamental rights irrespective of the causative subject matter or the status of the parties concerned…

In 2011, Section 254(1) of the 1999 Constitution…amended by Section 6 of the Constitution of Nigeria (Third Alteration) Act 2010 which came into effect on 4^th of March, 2011…

Applying these principles to the above provisions it is crystal clear that they invest the National Industrial Court with exclusive jurisdiction to hear and determine complaints of breach of fundamental rights in cases relating to or connected with labour, employment, trade unions, industrial relations and matters arising from workplace, or relating to or connected with disputes arising from payment or nonpayment of salaries, wages, etc. The present position of law therefore is that the, the High Court and the Federal High Court have a concurrent jurisdiction in cases of fundamental rights irrespective of the causative subject matter or the status of the parties concerned, except where the breach of fundamental is in cases, the subject matter of which falls within the area of exclusive jurisdiction of the National Industrial Court. By the provision of Section 254C(1)(d) of the Constitution…only the National Industrial Court has jurisdiction in respect of breach of fundamental rights in cases relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, or relating to or connected with disputes arising from payment or nonpayment of salaries, wages, etc SSC Nigeria Limited Vs. George (2019) LPELR-46963 (CA)…

The facts and circumstances of this case shows [sic] that it is one squarely within the jurisdiction of the National Industrial Court…”

 

The claimant in this instance was a banker and was arrested in the course of his employment by the employer in respect of alleged fraud that took place in the bank and his account with the bank was frozen in relation to the alleged fraud. The police found nothing against him and therefore released him after brief detention, but his account remained frozen, while he was subsequently dismissed. He commenced action in the NIC by complaint for the enforcement of his fundamental rights, the NIC assumed jurisdiction and found for him and the Court of Appeal dismissed the objection against the NIC’s jurisdiction to enforce fundamental rights and held that, only the NIC has jurisdiction over the matter. This case interposed the Court of Appeal’s contrary decisions in Dapaah’s case and Extension Publication Ltd. Dapaah’s case was decided in 2018 while Extension Publication Ltd was decided in 2022 and, this case [Diamond Bank’s case] was decided in 2019. Being inconsistent with Dapaah’s case earlier decided to the contrary, it impliedly overruled Dapaah’s case, while Extension Publication Ltd, decided later and contrarily, also impliedly overruled it. It is clear from the above scenario that the law is very much unsettled in this area, as each of these cases did not take cognisance of previous contrary decisions on the point. It could be seen clearly that there is no discernible ratio decidendi common to the Court of Appeal’s decisions in this area of the law and there is also, none common to the NIC’s decisions itself on this issue, as they also oscillate between the two extremes.

And when this is considered along with the earlier NIC’s conflicting decisions and the Court of Appeal’s cases cited in the two academic articles earlier reviewed in this judgment, it becomes much more poignant that, the law is very much unsettled in this area and that, there is no discernible ratio decidendi common to the decisions of both the NIC and the Court of Appeal in this area of the law. In situations like this, the Supreme Court provides the panacea in NEPA v. Onah (1997) LPELR-1959 (SC) 9-10, C-A; also in (1997) 1 NWLR (Pt. 484) 680; Osakwe v. F.C.E. (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 36, B-C; Chime v. Elikwu (1965) NMLR 71 and, the Court of Appeal in Ngun v. Mobil Producing Nigeria Unlimited (2013) LPELR-20197 (CA) 31-32 to the effect that, the trial court is allowed to choose which to follow amongst the several oscillating conflicting decisions of the trial courts, NIC in particular and the Court of Appeal, without clear-cut ratio decidendi common to them and, give its reasons. And the essence of this power granted the trial court is that, the last appellate decision might not necessarily be binding thus, creating exception to the general rule of stare decisis.

This is to assist the appellate courts to have the opportunity of looking afresh on the conflicting decisions with a view to resolving them and coming up with a locus classicus to settle the matter for the benefits of the much needed certainty in law. This is more particularly so because, different schools of thoughts cannot exist in the jurisprudence of a judicature patterned on the tradition of ratio decidendi and stare decisis of the common law. But because different judges at the trial courts and different panels at the appellate levels sit on similar issues and might not be aware of the previous decisions to the contrary, this occasionally happens, and the only way of correcting this, is that when the trial court is faced with these conflicting decisions, without discernible ration decidendi common to them, it must bring them to the notice of the appellate courts, with reasons offered for his choice, for a possible resolution by the Court of Appeal itself or by the Supreme Court by way of case stated to it either by the parties or the Court of Appeal, suo motu. And I have decided against stating a case to the Court of Appeal in this instance for three reasons. The first is that, I observed that the new angle of vision brought to this issue has never been considered in any of the previous judicial authorities on point and I felt, stating a case to the Court of Appeal, might not well articulate this, which might make the new angle of vision lost because in stating a case, the arguments cannot be fletched up like in deciding the issue by siding with one of the confliction authorities without discernible ratio decidendi.

Secondly, I was cognizant of the fact that, even though, the Court of Appeal is the ultimate labour court, but because of the divergence of the decisions of the Court of Appeal on this issue, cases on the same cause of action would continue to be filed at the High Courts and the NIC simultaneously, which appeals against those filed at the High Courts would end at the Supreme Court and whatever the Supreme Court decides, would have strong influence on the Court of Appeal for reason hierarchy, even though, the Court of Appeal stands in the place of the Supreme Court in labour matters. The third reason is that, even though, the Court of Appeal is the Supreme Court for labour matters, there is still the avenue of case stated, from the Court of Appeal to the Supreme Court, which is yet open to the litigants and the Court of Appeal itself, in cases like this, to state a case to the Supreme Court, even though, in labour cases; and whatever decision the Supreme Court gives on the stated-case becomes everlasting ratio on the issue. It is for these reasons, particularly because of the possibility of case-stated even yet on labour matters to the Supreme Court that, I decided to go the way of making a choice between the welter of conflicting decisions without discernible ratio decidendi common to the NIC and Court of Appeal on this very recondite issue so that, if by chance, a case is stated to the Supreme Court, it would have the benefits of the new angle of vision into the issue to enable it decide the issue to finality with all angles of visions carefully considered and, if the Court of Appeal decides it, it would have the benefits too, to also consider the new angle of vision in handing down a robust locus classicus to bring an end to conflicting decisions from itself on the issue and for the NIC too.

Having arrived at this juncture and with the review of the issue already done, I axiomatically side with the penultimate decision of the Court of Appeal’s in Diamond Bank’s case. I now proceed to give my additional reasons to justify my choice. In the latest Court of Appeal’s decision which is Extension Publication Ltd, the Court of Appeal, with the utmost respect did not consider the provisions of SS. 254C-(1)(d) and their impacts on S. 46(1)&(2) of the Constitution. It did not also consider the provisions of S. 254C-(1)(f)-(h)&(2) of the Constitution and their extrapolative moderating impacts on S. 46 of the Constitution and the FREP Rules. In fact, S. 254C-(1)(f)-(h)&(2) of the Constitution is the most radical of the jurisdiction conferred on the NIC to effect radical changes in the corpus juris of the law of industrial relations in Nigeria and it hovers overridingly on all other aspects of its jurisdiction and the whole Constitution. It must always be taken into consideration in any adjudication in the NIC. The Court of Appeal also, with grave respect, did not consider the opening phrase of S. 46(2) of the Constitution, which actually says S. 46 is subject to all the provisions of the Constitution with regards to the original jurisdiction, granted the High Courts on fundamental rights and S. 254C, which grants NIC non-obstante jurisdiction, whereas, in Diamond Bank’s case, the Court of Appeal took into consideration some of these factors and arrived at a different decision.  

I also found relevant to this issue SS. 241(1)(d) & 243(2) of the Constitution, which provide for appeal without leave to the Court of Appeal against the decisions of the High Courts on questions of fundamental rights contained in Chapter IV of the Constitution, while S. 243(2) of the Constitution separately provides for the right of appeal without leave to the Court of Appeal against NIC’s decisions on Chapter IV of the Constitution as they relate to industrial relations. It would be seen that S. 243(2) of the Constitution is the direct equivalence in the Constitution, to S. 241(1)(d) of the Constitution with respect to Chapter IV, and serves exactly the same purpose. That is why the questions of Chapter IV of the Constitution as they relate to the NIC was taken out of the general restrictions placed on the right of appeal against the NIC’s decisions in civil matters. Had the Constitution considered the NIC as only having jurisdiction over fundamental rights when litigated as ancillary to employment matters, it would not have been necessary to specially guide these rights, just like it was done with respect to the High Courts, by providing the extraordinary exception to the general ban of appeal without leave against NIC’s civil decisions. They would have been subjected to the leave of the Court of Appeal as mere question of law like all other issues of appeal against NIC’s civil decisions, being merely incidental or ancillary causes of action/claims, and not for enforcement of fundamental rights as the main cause of action/claim. It is therefore clear that, the intendments of both SS. 241(1)(d) and 243(2) are to specially cater for the enforcement of fundamental rights as the main causes of actions simpliciter, as they relate to the jurisdictions of both sets of the trial courts we now have in Nigeria: the High Courts general jurisdiction and, the NIC with specialised jurisdiction.

The non-requirement of leave, just like it was done with respect to the High Courts, shows clearly that under S. 254C-(1)(d), like under S. 46(1)&(2) of the Constitution, are meant for the enforcement of fundamental right as main claims in the NIC, just like in the High Courts. The Court of Appeal did not also consider the international best practices, which specifically regard right to earned salary as fundamental right to life, dignity of human person and also as right to personal property and, the cutting-edge practice worldwide, to regard employment rights generally as fundamental rights simpliciter, as I have pointed out earlier. The Court of Appeal’s decision in Diamond Bank’s case, though did not consider some of these points too, but clearly considered some and clearly appreciated that S. 254C-(1)(d) is the same with S. 46(1)&(2) of the Constitution when it comes to questions of enforcement of fundamental rights in Chapter IV of the Constitution as the main claims as they apply to industrial relations. It clearly considered the impacts of S. 254C-(1)(d) on S. 46 of the Constitution and arrived at the conclusion that, S. 254C-(1)(d) has overriding effects on S. 46 of the Constitution and took away totally, the jurisdiction of the High Courts on enforcement of fundamental rights as they relate to industrial relations and ceded it to the NIC non-obstante. It also quite appreciated the distinction brought into play in the phrase “matters arising from workplace” in S. 254C-(1)(a) of the Constitution, as embracive of matters that occur in the workplace simpliciter and its impact on the conferment of jurisdiction to enforce workplace-related fundamental rights on the NIC exclusively.

It is also clear that in Extension Publication Ltd that the Court of Appeal found that the cause of action was not at all related to employment or labour relations, whereas, the Court of Appeal found in Diamond Bank’s case that, the cause of action was situated squarely within employment relations and workplace context. It means Diamond Bank’s case was decided squarely on point, while that was not the case with Extension Publication Ltd and for that reason, the Diamond Bank’s case, being the latest on point, is the authority for this case. It comes about that it is necessary for the claimants, as done in this case, to carefully plead the nexus of the breach of their fundamental rights as main claims within employment relations or workplace contexts and, also reflect these in their reliefs as the main claims, to earn the NIC’s exclusive jurisdiction. Once done, the NIC’s jurisdiction for enforcement [application] of fundamental rights is activated, as it was held in Diamond Bank’s case. The NIC has exclusive jurisdiction over the enforcement of the provisions of Chapter IV of the Constitution in work context as main claims simpliciter, without adding any other main claims. It is also necessary to point out that the courts have the burden to avoid multiplicity of actions and, this is particularly necessary in the NIC by virtue of S. 14 of the NICA. This partly informs why all matters related to labour and industrial relations were fused into the NIC’s jurisdiction in order to eschew a situation whereby the hapless workers would be tossed about in different courts to litigate causes of action that arose in the same transactions, for which the Court of Appeal held in Sunday Ainabebholo v. Edo State University [EDSU] Workers Farmers Multi-Purpose Cooperative Society & Ors  (2015) LPELR-24513 (CA) 23, A-C that:

“Thus, it would be highly preposterous for the Appellant to assume, as he did, that the lower Court would sever the Appellant’s claim with a view to transferring the aspect of the labour to the NIC, and proceeding to entertain and determine the ancillary libel claim. Undoubtedly, the Lower Court has no jurisdictional competence to sever the claim, with a view to transferring a part, and determining a part thereof.”

 

Clearly the holding that the NIC lacks jurisdiction to enforce fundamental rights and that, applications could be brought to enforce fundamental rights in the High Courts as main claims, even when they relate to industrial relations, has the unintended consequence of severing the causes of action into pieces, whereby the High Courts would try the part that deals with enforcement of fundamental rights, even though, occurring within workplace context, and the NIC would try the other part that deals with the same workplace context, but without mentioning enforcement of fundamental rights. And the holding that when questions of fundamental rights are brought as ancillary to other causes of action, that NIC would have jurisdiction, with the utmost respect, appears to say that, at one stretch, the NIC has exclusive jurisdiction on both questions of enforcement of fundamental rights and other causes of action that are considered main claims, but not on enforcement of fundamental right as they affect labour relations simpliciter but, surprisingly, at another stretch, the NIC would cease jurisdiction simply because, the same cause of action is brought as main cause of action, with the tag of enforcement of fundamental rights without joining other causes of action!

How can a cause of action enjoy such ambivalent status as both ancillary and main cause of action depending on where the action is filed and the tag applied! This gives room to dodging NIC’s jurisdiction by mere artifice against the Third Alteration Act’s intendment to have all issues related to industrial relations and workplace contexts under the NIC’s canopy, for which reason, the NIC was granted expansive jurisdiction. The phrase “matters arising from workplace” in S. 254C-(1)(a) of the Constitution is the impacted alchemy, which was ignored in the contrary interpretation of NIC’s jurisdiction over enforcement of fundamental rights simpliciter, in the context of industrial relations.  

These and other distinctions make my choice of Diamond Bank’s case, with the utmost humility, sacrosanct. I therefore find that this action was mainly filed to enforce fundamental rights of the claimant as they relate to employment relations as the main claim, in virtue of S. 254C-(1)(d) of the Constitution. I therefore hold that, that being so; the NIC has the non-obstante jurisdiction over the matter. The procedure adopted to bring it by way of OM, is also proper and lawful. The objection therefore lacks merits and the NPO is accordingly dismissed. I now proceed to examine the case on its merits. I therefore turn to: Part B: Decision on the Merits.

 

Part B: Decision On The Merits    

The simple issue here is whether the claimant proved his case to be entitled to the reliefs claimed for the enforcement of his fundamental rights. I note that the respondents had opportunities to file CA to the merits of this case but did not. I note too that the respondents actually positively urged the Court to decide the merit of the case on their NPO and that; if unfavourable, they would appeal. I found Exhibit E and its attachment showing that the respondents received it. Exhibit E was claimant’s counsel’s letter to the respondents, demanding the payment of the claimant’s salary for October 2023. The claimant had deposed in his AS of OM that, while all other staffers of the respondents were paid their October salaries, he alone was not paid and that; the respondents failed to intimate him before and after, of the reasons for this. The claimant corroborated this with Exhibit E, which is letter of demand for payment and, explanation why the respondents failed to pay the claimant’s October 2023 salary. It is clear that respondents deliberately refused to pay the claimant his earned October salary. Thus, the claimant’s evidence that it was confirmed to him confidentially, by internal informant, that the 2^nd respondent ordered the withholding of his salary, is circumstantially cogent. I therefore have no reason to disagree with these pieces of evidence, which are cogent and reasonable. The claimant is purely enforcing his fundamental rights: to property [SS. 34(1) & 44 of the Constitution] and to be heard before adverse administrative, executive or ministerial decisions or actions could be taken or made against him [S. 36(2)(a) of the Constitution] and his rights under UDHR, as pleaded. He could not therefore be challenging any grouse the respondents had against him, but refused to reveal, up till now. I therefore give them full probative value.

I have also carefully considered the WAs in support of the OM, the respondents’ NPO and, the claimant’s RPL. I have no reason too to disagree with the submissions of the learned OGUINE for the claimant on both the merits of the case and, against the NPO. His submissions were the correct positions of law as I have shown earlier on. I have not found in the Conditions of Service attached as Exhibit A, anything that suggests that the respondents had the power to whimsically withhold the claimant’s salary for October 2023 or at any time, without given justifiable reason. By the authority of: J. Aswartha Narayana v. The State of Ap [supra], invokable in the Nigerian local municipality as binding precedent, by virtue of S. 254C-(1)(f)-(h)&(2) of the Constitution, the respondents are liable as claimed; and I so hold. The ILO Protection of Wages Convention, 1949 (No. 95) [C95] frowns seriously on whimsical tampering with workers/employees’ salaries/wages without their consents or reasonable justification. Nigeria ratified the ILO C95 Oct 17, 1960 and, by virtue of S. 254C-(2) of the Constitution, it is fully enforceable in Nigeria. More importantly so, right to salary has been elevated to fundamental right in the cosmopolitan jurisprudence of labour law around the world and, Nigeria is bound to kowtow by virtue of S. 254C-(1)(f)-(h)&(2) of the Constitution, as I have shown earlier in this case. I therefore find that the respondents breached the claimant’s fundamental rights under SS. 36(2)(a), 37 & 42 of the Constitution; 14 & 35 of the ACHPRA; Arts 4-6, 17, 23 & 30 of the UDHR and; ILO C111 & C95.

The claimant is therefore automatically entitled to reliefs 1-3 without much ado. They are the natural fallouts of findings on the merits of the case in the claimant’s favour and, I so hold. With regard to relief 4, I grant the sum of N5Million [Five Million Naira] only because, this is a case of executive recklessness that ticked the violations of several fundamental rights, especially the rights to life and dignity of human person. The cosmopolitan jurisprudence in labour law is to grant punitive damages in situations like this – Harmon v. State, reviewed in Luth Levush, “Israel: National Labor Court Quintuples Compensation in Occupational Harassment Case[18]” and, the ILO, “Judgment 121: Twentieth Ordinary Session of the Administrative Tribunal of the League of Nations[19], 1968[20]”, involving Agarwala v. United Nations Food and Agricultural Organization [FAO].

I cite S. 254C-(1)(f)-(h)&(2) of the Constitution; SS. 14, 15 & 19(d) of the NICA and; Sahara Energy Resources Ltd [supra] and, Adegboyu v. UBA [supra], as the authorities for the invocation of these examples of international best practices, in awarding punitive compensations in cases like this, especially where they involve executive lawlessness. In any case, the courts in Nigeria have, long before the Third Alteration Act, had the jurisdiction to grant punitive damages in cases of egregious breaches of fundamental rights. I grant N500Thousand [Five Hundred Thousand Naira] only, as the cost of this action, having taken into consideration the severe inflationary trends that had plagued Nigeria in the past few years and is still raging. I grant 25% per annum simple interest rate on the judgment sums, pursuant to Order 47, R 7 of the NIC Rules. The judgment takes effect, after seven days from today, in line with relief 2, when the 25% per annum simple interest rate would start counting also. Having reached this juncture, the judgment, naturally is at its apogee and for this reason; I must conclude it.

 

CONCLUSION

I reiterate the reliefs granted as follows:

1.     DECLARATION of court that, the stoppage of the claimant’s October 2023 salary by the respondents for an undisclosed verifiable reason, amounts to unfair labour practice and, breach of the claimant’s fundamental human rights guaranteed by both the Constitution and the UDHR.

2.     AN ORDER of Court directing the respondents, particularly the 2^nd respondent, to pay to the claimant within seven [7] days of judgment in this application, his unpaid October 2023 salary.

3.     AN ORDER of Court restraining the respondents, their agents, servants and privies, from further stoppage of claimant’s earned salaries without following due process of the law.

4.     AN ORDER of Court awarding to the claimant the sum of N5Million [Five Million Naira Only] jointly and severally against the respondents, as exemplary damages for the unjustified, wicked, unlawful and unauthorized stoppage of the claimant’s October 2023 salary and for which the claimant has suffered and continues to suffer avoidable psychological torture, reputational discomfort and economic distress.

5.     N500Thousand [Five Hundred Thousand Naira], being cost of this suit in the claimant’s favour.

6.     25% simple interest rate per annum on the judgment sums until fully liquidated, pursuant to Order 47, R 7 of the NIC Rules.

7.     The judgment takes effect after seven days of its delivery.

 

Judgment is accordingly entered today Friday the 19^th day of July in the year 2024 under my very hand as the presiding judge.

 

…………………………..

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA