By Folabi Kuti SAN
From a war in Europe, to looming global recession, the aftershocks of a multi-year pandemic, and an imminent national election at home, economies the world alike took a bruising in 2022. For the most part though, businesses, industries, and nations have stayed agile and resilient while embracing innovation. In this time of breaking new ground, there were significant decisions of courts impacting on the emergent world of work. Within the medium’s constraints, this write-up will examine the far reaching, the, respectfully, eyebrow raising, and much in-between – of the labour court- the National Industrial Court of Nigeria’s (NICN) noteworthy decisions.
Two decisions in the year under review, underscored the lingering threat of the COVID-19 pandemic; not only on the public health and its coordinating systems, but on relations in the world of work. The first, a convenient and thinly disguised veil by the defendant to avoid meeting obligations to pay outstanding salaries in Bamidele Niyi v Diya, Fatimilehin & Co. (Unreported Suit No. NICN/KD/31/2021, the judgment of which was delivered October 14, 2022; per Hon.Justice S.O Adeniyi).
In the second case, Rasak v Liquid Bulk (Unreported Suit No. NICN/PHC/103/2020, the judgment of which was delivered February 09, 2022; per Hon.Justice N.C.S Ogbuanya), an employer attempted to justify terminating the claimant’s employment on account of the latter’s ‘job abandonment at workplace’. That is, the employee’s physical absence from a designated physical workplace during government-imposed lockdown measures; implemented to curtail the spread of the disease. In both cases, the Court incisively determined that the facts did not lend themselves to excusing the defendants, and thus the defence(s) could not withstand the heat of judicial scrutiny.
Chief Sebastine Hon SAN v National Assembly (Unreported Suit No. NICN/ABJ/142/2022, the judgment of which was delivered July 15, 2022; per Hon.Justice O.A Obaseki-Osaghae) had as its focus, the stagnation of judicial officers’ remuneration and conditions of service since 2008. Suffice to say, it took the intervention of the self-same judiciary to command the National Assembly, the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC), and the Attorney General of the Federation (AGF) to urgently initiate measures to ensure salaries and allowances of judicial officers in the country are reviewed upward.
The decision in SPDC v Minister of Petroleum Resources (Unreported Suit No. NICN/ABJ/159/2018, the judgment of which was delivered July 28, 2022; per Hon.Justice B.B Kanyip, PhD, (President, NICN) heralds a marked revival of interest in, inter alia, the propriety (or, otherwise) of the Minister of Petroleum’s (mandatory) approval/consent as a condition precedent to determining employment relationships in the oil and gas industry. The Court pointedly held that Guidelines made further to the provisions of the Petroleum Industry Act, 2021 (PIA) are valid and applicable to employment contracts within the petroleum industry. This decision’s reverberating echoes are, however, far from paling inaudibly. Suffice to say that the last may not have been heard of the all-too-significant allied issues raised and resolved in the matter at first instance.
Another emphatic and consequential decision was handed down in NLC v Governor of Kaduna State (Unreported Suit No. NICN/ABJ/149/2021, the judgment of which was delivered June 9, 2022; per Hon.Justice O.A Obaseki-Osaghae). The court held that a state executive is not invested with constitutional power to establish a Judicial Commission of Inquiry into matters related to, or connected with any labour, employment, trade unions, or industrial relations circumscribed by Section 254C of the Constitution.
The court in Mr. Donald Nosiri v Royal Exchange Plc & Anor (Unreported Suit No. NICN/LA/498/2020, the judgment of which was delivered February 3, 2022; per Hon.Justice Elizabeth A. Oji, PhD) considered the contours of the duty to exercise contractual discretion in good faith. It held that parties must exercise discretion reasonably, “in a manner consistent with the purposes for which it was granted in the contract.”
Making a consequential order of reinstatement, the court frowned at the victimization of the claimant in Sonny Ekedayen v Rasheed Olaoluwa (Unreported Suit No. NICN/LA/569/2015, the judgment of which was delivered December 8, 2022; per Hon.Justice R.H Gwandu); in circumstances where the claimant found his employment with the 2nd defendant terminated for refusing to either resign or proceed on ‘voluntary’ early retirement.
Baror v Polaris Bank Ltd (Unreported Suit No. NICN/ABJ/159/2018, the judgment of which was delivered November 24, 2022; per Hon.Justice B.B Kanyip, PhD, OFR, (PNICN) is remarkable decision for more reasons than one. In arriving at the most recent of Court of Appeal decisions on the jurisdiction of the NICN over claims for defamation/torts (declaring that the labour court is not vested with such jurisdiction) the court reviewed the spate of conflicting decisions of the appellate final court on the point. The decision under reference also piercingly considered the defendant’s unlawful conduct in booking outstanding overdraft balances owed it by some of its customers, against the name of the claimant. In addition, it pronounced on the claimant’s entitlement to reference letters with regard to future employment, reflecting a proper and accurate recommendation by the defendant to a 3rd party, etc.
Unfair Labour Practice(s) & Compensatory Damages
The NICN’s power of adjudication over fact patterns depicting unfair labour practice(s), along with its ancillary power to award compensatory damages, is now fairly settled. What has gradually evolved from the cases in recent years, is the court’s benchmarking of the quantum of damages as against a commensurate number of years’ worth of salaries the successful claimant would have been entitled to, had employment continued. It is now almost certain to discern a pattern in the award of compensatory damages.
The decision in Olasewere v Airtel (Unreported Suit No. NICN/IB/90/2014, the judgment of which was delivered April 7, 2022; per Hon.Justice J.D Peters) generated not a few concerns over the quantum of damages- millions in tow. The ensuing award of N60 million as general damages represented an equivalent of two years’ salaries. The cold facts revealed a finding of wrongful termination of the claimant’s employment and the attendant stigma on his character and stellar career and future employment prospects. In particular, the claimant was tainted with guilt over an undisclosed allegation of ‘improper conduct’. Explicably so, an additional award of N100 million was granted as exemplary damages.
On finding that the determination of the claimant’s employment during her maternity leave period was unlawful and discriminatory against her on grounds of gender, pregnancy, childbirth, and marital status, the trial Judge in Nwankwo v Priscilla Olloh (Unreported Suit No. NICN/LA/674/2013, the judgment of which was delivered December 15, 2022; per Hon. Justice O.A Obaseki-Osaghae) awarded the claimant an equivalent of three years gross salary as general damages. In Philip v Notore (Unreported Suit No. NICN/YEN/56/2015, the judgment of which was delivered July 29, 2022; per Hon.Justice N.C.S Ogbuanya) the facts turned on workplace victimisation culminating in the abrupt termination of the claimant’s employment. The sum of N5 million was awarded as general damages for acts constituting unfair labour practice in circumstances involving the victimisation of the claimant in the workplace by a superior staff.
Similarly, the court considered, inter alia, in Dr Ikenna v Zitadel Medicals (Unreported Suit No. NICN/LA/674/2013, the judgment of which was delivered December 15, 2022; per Hon.Justice O.A Obaseki-Osaghae) , the propriety of (the) termination of a medical practitioner on grounds bordering on professional and/or medical negligence, without a medical disciplinary hearing. The damages awarded on the successful outcome of the claimant’s case considered ‘the unsubstantiated allegation of professional negligence that has maligned the claimant’s personal and professional character’. In Attah v Saii Associated Ltd/GTE (Unreported Suit No. NICN/ABJ/363/2020, the judgment of which was delivered 5 May 2022; per Hon.Justice O.O Oyewumi), the court found that the termination of the claimant’s employment carried with it some stigma on the claimant’s person and character, and which allegation the defendant was not able to prove. A sum equivalent to the claimant’s two years’ salary was awarded as damages.
Compensatory damages in the context of industrial accidents
The facts in Ishmael v African Foundry Nigeria Limited (Unreported Suit No. NICN/UY/32/2018, the judgment of which was delivered 21 July 2022; per Hon. Justice M.A Namtari) evoke deep empathy. The claimant was involved in an industrial accident in the performance of his work for the defendant, leading to the amputation of his leg at the prime age of about 22. The court’s judgment, however, is more likely to inspire critique than to serve as an authoritative guidance on the award of damages in similar circumstances. On the face of the recorded judgment the claimant appeared to have asked for N50 million as special and general damages for the permanent injury suffered. The court proceeded to award more than the amount sought; in bestowing: ‘the sum of N70 million only as damages for the loss of his leg while working for the defendant.’
There is also the argument as to whether the peculiar facts and claim, neither seeking compensation under the common law tort of negligence nor under the Employees’ Compensation Act (ECA) 2010, or any other statutory duty, can be sustained in the light of res ipsa loquitur which the court found availed the claimant.
The illuminating position taken by the court in Emeruwa v Ayokunnu Are & Anor. (Unreported Suit No. NICN/IB/44/2018, the judgment of which was delivered 7 March 2022; per Hon. Justice J.D Peters) confirms, sub silentio, that an action for compensatory damages for workplace injury may even where not held to have become stale or caught by limitation laws, may, nonetheless, become caught by the principle of estoppel by conduct. The claimant, while in the employment of the defendants was attacked by armed robbers in the premises of the defendants sometimes in 1989. The attack led to the amputation of his left wrist. The cause of action arose in 1989. A demand was made on the defendants for compensation in 1993.The defendants replied to the claimant’s counsel offering a sum, with an enclosure of a cheque drawn on said sum. There was a gap in communication between the offering of the cheque in 1993, and an action filed in 2018 on a claim for compensation! The court held that the claimant’s undue delay had conveyed an impression to the defendants, and so was caught by the doctrine of estoppel by conduct. The right of the claimant to ventilate the action became hindered by his undue delay in bringing same.
On a finding that the defendant failed in its duty of reasonable care towards the safety and wellbeing of the claimant while in the course of its employment, resulting in permanent injuries to the claimant, the court in Babangida v Slava-Yeditepe Projects (Unreported Suit No. NICN/LA/530/2016, the judgment of which was delivered February 28, 2022; per Hon.Justice M.N Esowe) awarded the claimant the sum of N8 million as damages.
Failure to exhaust the procedure under the Employment Compensation Act was the albatross to a successful outcome of the claims in Eshebrinama v GIG Motors (Unreported Suit No. NICN/LA/225/2019, the judgment of which was delivered September 5, 2022; per Hon.Justice S.H Danjidda) and NGOCE v Biase Plantation (Unreported Suit No. NICN/LA/43/2021, the judgment of which was delivered February 15, 2022; per Hon.Justice Sanusi Kado). In Okunzuwa v NNPC (Unreported Suit No. NICN/CA/46/2017, the judgment of which was delivered May 19, 2022; per Hon.Justice A.A Adewemimo), a claim for compensation for permanent incapacitation and loss of earnings occasioned by the claimant’s injury suffered while in the course of work, led to an award of the sum of N25 million as compensatory damages.
As the saying goes, something old and something new, in the outgoing year, the court has certainly kept faith with its guiding principles, while breaking new ground. And while some of its decisions seem destined to undergo the rigours of further appellate judicial scrutiny, others have simply reaffirmed the court’s reputation as one of the nation’s more vibrant judicial arenas.