CHAPTER SIX

THE NATIONAL INDUSTRIAL COURT AND JOB SECURITY

6.0 Introduction

The field of industrial relations call for the development of broad expertise and experience. It

requires specialized judges who become steeped in the field and who work with those from

union and employer ranks who through their background and experience have the confidence

of their organizations. Such tribunals are more likely to be more effective instruments for

resolving labour disputes. Moreover, speediness, cheapness as well as informality are among

the traditional characteristics of labour court proceedings which are not readily available at

regular courts or courts of general jurisdiction.1

Labour courts appear to fall into two main categories, viz, administrative bodies and proper

court of law. Of the administrative variety, the most important examples are the Industrial

Tribunal in Britain, the National Labour Relations Board in the United States, and the

Industrial Court of Trinidad and Tobago.2 The Labour Court in Sweden functions as a

superior court, and the National Industrial Court of Nigeria is a federal superior court of

record having final and exclusive jurisdiction in all trade disputes.3

A quiet revolution regarding labour jurisprudence in the country is currently going on at the

National Industrial Court of Nigeria (NIC) since the enactment of the Third Alteration to the

1999 Constitution, which repositioned the court within the structure of the judiciary and as

one of the superior courts of record under section 6 of the 1999 Constitution with defined and

1
M.S.M. Brassey, “The New Industrial Court” (1980) 1 Industrial Law Journal p.75
2
B. Jordan and D. Davis, “The Status and Organisation of Industrial Courts: A comparative Study” (1987) 8
Industrial Law Journal p.199
3
Ibid

143
exclusive jurisdiction under especially S.254C of the Constitution, as amended.4The National

Industrial Court is a creation of statute5. The Court was established for the first time by the

Trade Dispute Act 1976 and began sitting in June 1978.6 The Act established it as the

specialist Court for the settlement of trade and labour disputes.7 The Court was established as

the highest court for the settlement of trade disputes in Nigeria.8 The National Assembly in

2006 the National Industrial Court Act (NIC Act) 2006, establishing the National Industrial

Court, vesting it with exclusive jurisdiction over all labour related matters9. One of the

primary objectives of the NIC Act is to properly establish the NIC as a superior court of

record, placing it on the same hierarchy with the Federal and State High Courts10, thereby

bringing to an end the jurisdictional conflict between the NIC and the Courts over certain

labour related matters11.

It is instructive to note that hitherto there had been some controversy as to the legal status of

the Court since the 1999 Constitution which controversy has been laid to rest by virtue of the

4
B.B. Kanyip, “Advancing the Frontiers of Employment Law and Practice in Nigeria through Law Reporting :
Nigerian Labour Law Reports as a Case Study’’ A Discussion Paper presented at the First Colloquium on
th
Employment Law and Practice in Honour of EnobongEtteh, to Mark his 50 birthday which held at Quad.7
st
Event Centre, 171 Gbagada Express Way, Lagos on 31 January, 2015.
5
C.K. Agomo “The National Industrial Court Has Put A Human Face To Dispute Management And Dispute
Resolution In Nigeria” an interview published in The National Industrial Court in Perspective, a 2010
publication.
6 st
E.E. Uvieghara, Labour Law in Nigeria ( 1 ed. Malthouse Press Limited, Lagos, 2001) p.424
7
The Court was first established in 1976 by section 19(1) of the 1976 Decree which provided that the Court
shall have jurisdiction and power conferred by the said law or any other Act with regards to the settlement of
disputes, the interpretation of collective agreements and matters connected thereto. Subsequently in 1992,
the Trade Disputes Act was amended by the Trade Disputes (Amendment) Decree No.47 of 1992. By the
provision of section (a) thereof, the Court became a Superior Court of Record with the status of a High Court.
In order to meet the contemporary Labour and Industrial Relations matters, the National Assembly in carrying
th
out its statutory functions enacted the new National Industrial Court Act on the 14 of June, 2006.
8
E.E. Uvieghara and J.E.O. Abugu, Trade Unions Law, in Commercial Law in Nigeria, E.O. Akanki (ed.)
(University of Lagos Press, Lagos 2007) p.771.
9
See the Explanatory Memorandum to the National Industrial Court Act, 2006. See also sections 7(1)(a),(b)
&(c) and 11(1) of the NIC Act, 2006. Moreover, the NIC aims at promoting industrial harmony through a timely,
but fair resolution of disputes arising from industrial relations in a flexible, expedient, reliable and affordable
manner thereby providing the enabling environment for the nation’s industrial development and economic
growth. The Court combines the rule of law with speedy resolution of industrial disputes conscious of the
impact of economics of time on the nation’s growth and development. See the Corporate Brochure of the NIC.
10
53(1) of the NIC Act, 2006.
11
I.N. Eme-Worugji , J.A. Archibong., and E. Alabo “ The NIC Act(2006) and the Jurisdictional Conflict in
Adjudicatory Settlement of Labour Disputes in Nigeria: An Unresolved Issue.” (2007) Labour Law Review p.25

144
Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010.12 The Act took

effect from 4th March, 2011.13 The effects of the Third Alteration, inter alia, include the

conferment of wider jurisdiction on the Court; the introduction and recognition of the concept

of unfair labour practices; and unhindered application of international best practices which

include international conventions, treaties and protocols that relate to employment/labour

issues which are ratified by Nigeria.14

The crux of this chapter is to interrogate the new mandate given to the National Industrial

Court (NIC) under the Third Alteration Act and the possible impact it has on job security.

Part one of the chapter is the introduction. Part two briefly traces the evolution of the Court

from inception till date in terms of its history. Part three considers the renewed mandate given

to the Court under the 1999 Constitution as amended by the Third Alteration Act focusing on

the newly introduced concept of unfair labour practice and the unhindered application of

labour related treaties and conventions ratified by Nigeria yet to be enacted into law by the

National Assembly. Part four of the chapter is the conclusion.

12
Before the Third Alteration of the Constitution two issues involved in the controversy were: (i) the
constitutionality of section 19 of the Trade Disputes Act which established the Court as a superior court of
record while the court was not expressly listed among superior courts of record under section 6(3) of the 1999
constitution therefore bringing the court under section 6(5)(g) which allows such other courts as may be
authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make
laws; and (ii) the jurisdiction of the court as a final Arbiter in trade dispute matters. Section 20(3) of the Trade
Disputes Act which provides that no appeal shall lie to any other body or person from any decision of the
Court, and section 15(2) which makes its interpretation of any collective agreement final, have been argued to
be unconstitutional as being inconsistent with the status conferred on the Supreme Court as the final Court of
Appeal. See C.K. Agomo, Nigerian Employment and Labour Relations Law and Practice (Concept Publication
Limited, Lagos 2011) p. 339
13
The Act is described as ‘An Act to alter the Constitution of the Federal Republic of Nigeria Cap23, Laws of the
Federation of Nigeria, 2004.
14
Ibid

145
6.1 THE NATIONAL INDUSTRIAL COURT (NIC)

6.1.1 History and Establishment of the NIC

A brief foray into the historical antecedents culminating in the establishment of the NIC is

essential for a broad understanding of the significance of the recent initiatve of the National

Assembly15. Attempts by the Nigerian government to provide an efficient legal framework

for the settlement of trade disputes date back to 1941 with the promulgation of the Trade

Disputes (Arbitration and Inquiry) (Lagos) Ordinance of 194116. That Act, which was first

enacted in 1941, gave power to the Minister of Labour to intervene by means of conciliation,

formal inquiry and arbitration where negotiation had broken down. It had two notable

features which, in fact, might be regarded as drawbacks. First, it lied in the absolute

discretion of the parties to decide whether or not they would avail themselves of the

machinery provided. The Minister could not compel them to accept his intervention. Thus, he

could only appoint a conciliator upon the application of one of the parties, while he needed

the consent of both parties to set up an arbitration tribunal. Secondly, there were no

permanent institutions laid down before which the disputing parties could go for the

settlement of their labour disputes. Instead, an ad hoc body, an arbitration panel had to be set

up for a particular dispute and once it gave its decisions it became functus officio. Under this

ordinance only ad hoc bodies in the form of arbitration tribunals could be set up to handle

trade disputes and it left the role of government to be merely discretionary at the instance or

invitation of parties17. This Ordinance was only applicable to Lagos until 1957 when the

15
The National Assembly recently made a commendable and giant leap for the advancement of Nigeria’s
economic, labour and industrial jurisprudence and progress. The giant leap so made is as captured in the
Constitution Amendment Bill successfully passed by the two Chambers of the National Assembly for the
enactment of an Act to amend the Constitution of the Federal Republic of Nigeria Cap. C.23, Laws of
Federation of Nigeria, 2004 for the establishment of the National Industrial Court by the Constitution.
16
. See Section 4(2), Trade Disputes (Arbitration and Enquiry Act) 1958.
17
However, by the 1970s and particularly after the Nigerian Civil War, this approach was abandoned for an
interventionist model. This coincided with the indigenization policy of government where key

146
Trade Disputes (Arbitration and Inquiry) (Federal Application) Ordinance of 1957 was

passed.

This period gave way in 1968 with the promulgation of the Trade Disputes (Emergency

Provision) Decree No.21 of 1968 and the Trade Disputes (Emergency Provisions)

(Amendment No.2) Decree No.53 of 1969. These Decrees made it obligatory for the parties

to deposit three copies of any existing collective agreement for the settlement of a trade

dispute with the Federal Commissioner for Labour and also to report the existence of a trade

dispute to the Commissioner. The Decree in particular banned strikes and lock-outs under

pain of imprisonment without option of fine and imposed stringent duties on the employer

and employees to report strikes and lock-outs within 14 hours to the Inspector General of

Police. It also established on a permanent basis, a tribunal to be known as the Industrial

Arbitration Tribunal.

To address some of the problems engendered by the above Decrees, the Trade Disputes Act

of 1976 was passed. NIC was established by this Decree, which later became the Trade

Disputes Act (TDA) .18 Section 20 of the said Act provided that:

There shall be a National Industrial Court for Nigeria (in

this part of this Act referred to as “the Court”) which shall
have such jurisdiction and powers as are conferred on it by

economicactivities were centralized in government. As a product of an interventionist policy in both the

economic and labour spheres, the NIC is generally still structured in a regimented and compartmentalized
labour disputes resolution regime but, unlike before the passage of the NIC Act, with circumscribed ministerial
discretion. For instance before now, only in few cases could the jurisdiction of the NIC be activated by the
disputants themselves without recourse to the Minister of Labour. In the majority of cases, the jurisdiction of
the NIC was activated upon a referral from the Minister of Labour. Indeed in the words of Rule 13 of the NIC
Rules Cap 432 LFN 1990, a trade dispute “shall be commenced by reference from the Minister of Labour”.
However, under the present dispensation, although the Minister can in appropriate circumstances, still refer
matters to the NIC, the wide discretionary powers he generally wielded, are now subject to prerogative writs
and other powers of the NIC under sections 13-19 of the NIC Act. See B.A. Adejumo “Towards Achieving
Industrial Harmony in Universities: The National Industrial Court’s Approach” being a lead paper delivered at
the National Workshop organized by UNIFECS Nigeria Limited, Consultancy Services Centre, ObafemiAwolowo
University, Ile-Ife at the University of Ibadan, May 11-12, 2010. p.5.
18
Cap T8 Laws of the Federation of Nigeria, 2004.

147
 this or any other Act with respect to the settlement of trade
disputes, the interpretation of collective agreements and
matters connected therewith.

The Act introduced new dynamics to the legal framework for the settlement of disputes in

Nigeria19. Prior to the establishment of the Act in 1976, in particular, prior to 1968, industrial

relations law and practice was modelled on the non-interventionist and voluntary model of

the British approach20. The Act (the 1976 Act) created a comprehensive procedure for the

settlement of trade disputes combining voluntary and compulsory measures. It gave so much

power to the Minister of Labour, which to a large extent negatively affected its efficiency.

The National Industrial Court was established by the Act with jurisdiction in respect of

settlement of trade disputes, interpretation of collective agreements and matters connected

thereto. In all these matters the Act gave exclusive jurisdiction to the court, though it was not

created as a superior court of record.

A major amendment was introduced in 1992 through the Trade Disputes (Amendment)

Decree No.47 of 1992 which made the Court a superior court of record to give proper

meaning to the exclusive jurisdiction given to the Court. It also provided that appeals would

lie as of right to the Court from the awards of the Industrial Arbitration Panel without

necessarily seeking the leave of the Minister of Labour on matters contained in sections of

the Act

On the 31st day of May, 2006, the National Assembly passed the National Industrial Court

Act, 2006. The Act was assented to by the President, Federal Republic of Nigeria on the
19
Under the TDA, the Court was composed of the President of the Court and four other members who were
referred to in the Act as “ordinary members” all of whom were persons of good standing, to the knowledge of
the Minister of Labour, well acquainted with employment conditions in Nigeria, and at least one of whom, to
his satisfaction, had a competent knowledge of economic, industry and trade.
20
C.K. Agomo “Nigeria”, in Blanpain (ed.), Labour Law and Industrial Relations in the International
Encyclopedia of Law 2000 at pp. 38 - 39

148
14thJune 2006. The Act established the National Industrial Court as a superior court of record

and conferred exclusive jurisdiction on the Court with respect to labour and industrial

relations matters.

6.1.2 The Renewed Mandate of the NIC

The Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 which came

into effect on the 4th day of March, 2011 renewed the mandate of the NIC and put to rest

previous controversies about the powers and jurisdiction of the Court. The effects of the

Third Alteration, inter alia, include the conferment of wider jurisdiction on the Court; the

introduction and recognition of the concept of unfair labour practices; and unhindered

application of international best practices which include international conventions, treaties

and protocols that relate to employment/labour issues which are ratified by Nigeria.21

The Act described as “An Act to alter the Constitution of the Federal Republic of Nigeria

Cap. 23, Laws of the Federation of Nigeria, 2004 for the establishment of the National

Industrial Court under the Constitution’’ took effect from 4th March, 2011. Section 6(5) of the

Constitution has been amended to include the National Industrial Court as a Superior Court of

Record.22 This clearly lays to rest all controversies relating to the status of the court.23 The

pronouncement of the Supreme Court decision that only a constitutional amendment can cure

any perceived defect in the status of the NIC has been appropriately answered.24

21
B.B. Kanyip, “The Jurisdiction of the National Industrial Court in the Light of the Third Alteration to the 1999
Constitution of the Federal Republic of Nigeria”, a Guest Lecture presented at the Lagos State Ministry of
Justice in-House Training Programme tagged, Legal Education and Research Node (LEARN) on March1, 2012 pp
18.
22
Section 2 of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2011 inserts a new
paragraph “cc” after section6(5)(c) of the Principal Act.
23 st
C.K. Agomo, Nigerian Employment and Labour Relations Law and Practice (1 ed.Concept Publication
Limited, Lagos 2011) p. 339.
24
Ibid

149
The new section 254(C) has laid to final rest, the argument in favour of the inherent

jurisdiction of the high courts which cannot be abrogated by a mere Act of the National

Assembly25 by conferring on the NIC exclusive jurisdiction in trade disputes.The provisions

of the National Industrial Court Act, 2006 on the establishment and composition of the NIC

have now been included in the Constitution.26 Section 254(C) confers criminal jurisdiction

and powers on the NIC in criminal causes and matters arising from any cause or matter of

which the Court has jurisdiction either by this section or by any other Act of the National

Assembly or by any other law.

However, the Act still maintains that appeal shall lie from the decision of the Court as of right

to the Court of Appeal only on questions of fundamental rights and where appeal from the

Court lies to the Court of Appeal on civil matters the decision of the latter shall be final.27

The Court has been conferred with criminal jurisdiction by being empowered to apply the

provisions of the Criminal Code, Penal Code, Criminal Procedure Act, Criminal Procedure

Code and the Evidence Act.28

For the purpose of exercising the jurisdiction conferred on it, the Court is conferred with all

the powers of a High Court.29 This further clarifies the new status of the Court as a superior

court of record. The Court in the exercise of its jurisdiction may establish Alternative Dispute

Resolution Centre within its premises.30 This innovation affords the disputing employer and

employee opportunity to have their dispute resolved in an informal forum void of legal

technicalities that encumber formal court settings.

25
Ibid
26
Section 6 of the Third Amendment Act has altered Chapter VII, Part I by inserting a new sub-heading “cc”and
Sections 254A-254F.
27
See s. 254C (5) and 254F (2) of the Third Alteration Act. This section altered section 243 of the Principal Act
by inserting new subsections (2) and (4) to section 243.
28
See the newly inserted s.254F(2). Note also that the same s.254F(1) empowers the President of the Court to
make rules regulating the practice and procedure of the Court.
29
See the newly inserted s.254D(1)
30
See s.254C(2)

150
The Court consists of a President and a number of other Judges as may be prescribed by an

Act of the National Assembly. The provision on appointment of both the President of the

Court and the Judges are contained in the National Industrial Court Act, 2006. There is

however a fundamental variation.31 It is now constitutionally clear that only qualified legal

practitioners with considerable knowledge and experience in the law and practice of

industrial relations and employment conditions in Nigeria can be appointed as Judges of the

Court.32 The Trade Dispute Act and the National Industrial Court Act made provisions for

appointment of non-lawyers as Judges of the Court. This was a sore point which those against

the repositioning of the NIC as a court of superior record used to support their argument.33

On the issue of jurisdiction, section 254C (1) has resolved the controversy that has trailed the

Court for long a time. The High Court is regarded as a court of unlimited jurisdiction which

cannot be divested of its inherent jurisdiction by any Act except by the same Constitution that

has vested same on it. Hence, the NIC Act purporting to vest exclusive jurisdiction on the

NIC on trade disputes matters had, hitherto, been condemned as unconstitutional. This has

been laid to rest by the section 254C(1) which confers exclusive jurisdiction on the National

Industrial Court on all labour related matters.

The Court now has the jurisdiction to determining all matters relating to payment or non-

payment of salaries or pension of any employee including public office holders and judicial

officers. The Court has jurisdiction on all matters arising from collective agreements and may

determine issues relating to unfair labour practices and application of international best

practices. This is on all fours with section 254C(2) which confers the Court with the power

and jurisdiction to deal with any matter connected with the application of any international

31
C.K. Agomo, supra note23 p.340
32
Ibid
33
Ibid

151
convention, treaty or protocol of which Nigeria has ratified relating to labour, employment,

workplace, industrial relations or matters connected therewith.

6.2 Unfair Labour Practice

Unfair labour practice connotes any labour practice or any change in labour practice in which

an employee or class of employees may be unjustly affected, or any practice in which the

business of any employer may be unjustly affected or disrupted. It includes any unjust act or

omission that arises between an employer and an employee involving the unjust conduct of

an employer relating to the promotion, demotion or training of an employee, or relating to the

provision of benefits to an employee, the unfair suspension of an employee; and the failure or

refusal of an employer to reinstate or re-employ a former employee in terms of any

agreement.

Labour legislation is, among other things, designed to regulate the bargaining power

between employers and employees. It prohibits employers and unions from engaging in

specified acts which constitute unfair labour practice and establishes obligations on both

parties to engage in collective bargaining. Labour law which governs master/servant

relationship is based on the need to protect the worker who is regarded – legally and socially

– as being in the weaker bargaining position34

The Constitution of the Federal Republic of Nigeria 1999 as amended by the Third Alteration

Act,35 introduced the concept of unfair labour practice. Section 254(C)(1)(f) of the Third

Alteration Act extends the jurisdiction of the National Industrial Court of Nigeria to matters

relating to unfair labour practices, international best practices in labour, employment and

industrial relation matters. However, the definition and scope of the concept of unfair labour

34
F. Diego and A. Kuddo, “Key Characteristics of Employment Regulation in the Middle East and North Africa”
SP Discussion Paper No.1006, July 2010 pp21-22.
35
The 1999 Constitution of the Federal Republic of Nigeria (as amended by the Third Alteration Act, 2010).

152
practice in Nigeria is not clear. The Constitution that first introduced the concept as part of

the inherent jurisdiction of the NIC fails to define or delimit the scope of the concept. This is

contrary to the position in other developing jurisdictions such as South Africa and Kenya

where the right to fair labour practice is guaranteed in Constitutions and the concept of unfair

labour practice clearly defined and provided for in their labour legislations.

However, the NIC has made some recent pronouncements on what may and may not

constitute unfair labour practice. In the case of Adesanya v. Lagos State Government Civil

Service Commission and Others, it was declared by virtue of section 254C(1)(f) of the

Constitution, that the NIC had jurisdiction over matters relating to unfair labour practice.36

The case of Mariam v. University of Ilorin Teaching Hospital Management Board37is

instructive. In that case, the claimant who was a principal nursing officer in the defendant’s

hospital claimed that she was denied her promotion and subsequently suspended by the

Management of the defendant hospital. She claimed that denial of her due promotion and

subsequent suspension was vindictive and mala fide borne out of the fact that her family

obtained a judgment in court against the Management of the defendant hospital with respect

to the death of her father in the same hospital. The Court held that the essence of the NIC is

not just the enforcement of mere contractual rights but for preventing labour practices

regarded as unfair (for which a vindictive suspension and a vindictive denial or refusal of

promotion are but examples) and for restoring industrial peace at the workplace. The NIC

further held that issues of unlawful suspension and the denial of a deserved promotion fall

squarely within the realm of unfair labour practice, therefore the National Industrial Court has

jurisdiction over same by virtue of s.254C(1)(f) of the 1999 Constitution as amended.

36
(2012) 29 NLLR (Pt.83) p.300
37
(2013) 35 NLLR (Pt.103) p.40

153
Similarly in the case of Yaroe v. The Nigerian Stock Exchange38, the Court condemned the

motive of the employer behind the purported dismissal of the claimant. The claimant, in that

case, rose through the ranks in the defendant organization to become the Central Manager

and the Head of Listing and Quotation Department making his office next to that of the

Director- General of the Organization. When the office of the Director–General (D.G.)

became vacant, he along with other senior membersstaff of the organization applied for the

post. Although he and some other senior members of staff were shortlisted for the office,

another senior officer was appointed as the D.G. Upon resumption of office by the appointed

D.G., the claimant was subjected to service of pressure demanding that he should tender his

letter of voluntary resignation even though he had not reached the age of retirement. Upon his

refusal, the D.G in collaboration with the Interim Administrator appointed a junior worker to

take over his office and the defendant published in the newspaper that the claimant had

resigned his appointment due to the restructuring going on in the organization. The Court in

its decision noted that although an employer is not bound to give reasons for terminating an

employee’s employment, where the employer gives reason for terminating or dismissing an

employee, the law places a duty on the employer to justify the reason. Therefore, the court

can competently inquire into the reason why an employee’s appointment was determined

once issues are joined by the parties and the reason for doing so. In other words, once an

employer gives a reason for the dismissal, he is stuck with the reason and the reason is

subject to the test of plausibility. In the instant case, the allegation against the claimant for

which he was dismissed was that of misappropriation of the defendant’s funds which the

court had found and held not to be proved. The defendant did not establish any misconduct

against the claimant which will warrant the punishment of dismissal. Hence the suspension is

38
(2014) 46 NLLR (Pt.147) p.45

154
vindictive or mala fide,it amounts to an unfair labour practice and so is actionable under the

dispensation of the Third Alteration to the 1999 Constitution.

It is interesting to note however that although the Claimant made a claim for reinstatement

for the unlawful termination the Court was not disposed to granting the claim. In fact, Justice

Agbadu-Fishim refused to grant the claim on the grounds that it is a contract of service in

which specific performance will not normally be ordered so as not to create a situation

whereby an employee will be foisted upon an unwilling employer.

Moreover, in the case of Academic Staff of Education and Associated Institutions (NASU) v.

AkwaIbom State University and the Vice Chancellor AkwaIbom State University39 Justice

Obaseki-Osaghae held that recognition of a trade union by an employer being compulsory

and automatic, an employer has no choice in the matter. It is an unfair labour practice for the

employer to refuse to accord recognition to a registered trade union. Failure to recognize a

trade union is a violation of the provisions of sections5 (7) and 25 (1) of the Trade Union

Act. It is also a breach of the provisions of section 40 of the 1999 Constitution, the

fundamental rights of the union.

In Chiagorom v. Diamond Bank40 the Court held that by virtue of section 254 C (1) (f) of the

Constitution, an unlawful suspension of employee or denial of a deserved promotion amount

to an unfair labour practice over which the NIC has jurisdiction. In the instant case, an unfair

labour practice has occurred by the wrongful and unjust dismissal of the claimant. The Court

further held that in order to remedy the incidence of unfair labour practices, section 254 C

(1) (f) and (h) of the 1999 Constitution (as amended by the Third Alteration) permits the NIC

to apply international best practices or international labour standards. The Constitution makes

the Court free to apply the principles of justice, equality and good conscience when
39
(2014) 44 NLLR (Pt.150) p. 545
40
(2014) 44 NLLR (Pt.140) p. 401

155
adjudicating on the rights and wrongs of a claim made and in so doing, to apply international

best practices. The dismissal of the claimant from the employment of the defendant is

wrongful and unjust and amounts to an unfair labour practice.

Again, having made this bold decision that denial of promotion, unjust suspension and

unlawful termination informed by malicious or vindictive motive constitute unfair labour

practice, one would have expected that the Court would proceed to grant reinstatement in

favour of the Claimant. In fact, a careful consideration of the cases of Chiagorom v. Diamond

Bank and Yaroe v. The Nigerian Stock Exchange the Court seems to have missed the rare

opportunity to award reinstatement which would put to rest the dichotomy between the

private and public sectors in cases of unlawful termination of employment and the

appropriate remedies to be awarded. The Court in Chiagorom’s case seems to contradict itself

when it held that in order to remedy incidence of unfair labour practices, section 254 C (1)

(f) and (h) of the 1999 Constitution (as amended by the Third Alteration) permits the NIC to

apply international best practices or international labour standards but still went ahead to

award damages for unlawful termination in lieu of reinstatement. Having held that the

Constitution makes the court free to apply the principles of justice, international best

practices, equality and good conscience the Court has laid the necessary foundation for the

direct application of the ILO Convention 158 through which reinstatement can be awarded in

the absence of any unfair dismissal and unfair labour practice legislations in Nigeria.

6.3 Direct Application of Treaties, Conventions and International Best Practices.

It had, hitherto, been feared that section 7(6) of the NIC Act, 2006 which empowers the NIC

to apply rules of international best practices seems to lose sight of section 12 of the 1999

Constitution. The Nigerian approach to the enforcement of treaties and other international

156
instruments is dualist, and as such treaties are not enforceable directly as part of the domestic

law until they are enacted by an Act of the National Assembly.41 Section 12 of the 1999

Constitution provides that no treaty between the Federation and any other country shall have

the force of law except to the extent to which any such treaty has been enacted into law by

the National Assembly. In Abacha v. Fawehinmi42 the Supreme Court held that the provisions

of African Charter on Human and Peoples’ Right has become part and parcel of the corpus of

the Nigerian law as same has been re-enacted by the National Assembly. In Medical and

Health Workers Union of Nigeria v. Minister of Health and Productivity &Ors43, the Court of

Appeal held that the provisions of an international labour convention cannot be invoked and

applied by a Nigerian Court until same has been re-enacted by an Act of the National

Assembly. His Lordship, Muntaka-Coomaise JCA had this to say on domestic application of

the International Labour Convention in Nigeria :

There is no evidence before the court that the ILO Convention, even
though signed by the Nigerian Government, has been enacted into
law by the National Assembly. In so far as the ILO Convention has
not been enacted into law by the National Assembly, it has no force
of law in Nigeria and it cannot possibly apply.
The effect of section 254(C) (2) of the Third Alteration Act is radical in the sense that it

changes Nigeria from a dualist country into a monist country as far as conventions relating to

labour matters are concerned. Under the monist approach, traditionally the legal system of a

state is considered to include treaties to which the state has given its consent to be bound.

Thus, certain treaties may become directly applicable in that state domestically (self-

executing) and such states do not rely on subsequent national legislation to give them the

force of law once they have been ratified by the state.

41 st
J.E.O. Abugu, A Treatise on the Application of ILO Convention in Nigeria ( 1 ed. University of Lagos Press,
2009) p.13.
42
[2000] 6 NWLR (pt.660) 228
43
[2005] 17 NWLR (pt 953) 120

157
Section 254(C) (2) provides that:

Notwithstanding anything to the contrary in this Constitution, the

National Industrial Court shall have the jurisdiction and power to deal
with any matter connected with or pertaining to the application of any
international convention, treaty or protocol of which Nigeria has
ratified relating to labour, employment, workplace, industrial
relations or matter connected therewith
Moreover, section 254(C)(1)(f) of the Third Alteration Act extends the jurisdiction of the

National Industrial Court to matters relating to unfair labaour practices or international best

practices in labour, employement and industrial relation matters. In the same vein, section

7(6) of the NIC Act 2006 permits the NIC to take into account international best practices.

Section 13 of the NIC Act mandates the NIC to administer law and equity concurrently.

However, section 15 of the same Act provides that where there is conflict between the two,

the rules of equity shall prevail.

The combined effect of all these provisions is such that all ILO Conventions to which Nigeria

has been a signatory but yet to domesticate or transform into a domestic law can now be

applied directly by the NIC without any legislative intervention. Hence, Convention No.158

on Termination of Employment, though not domesticated by Nigeria, can be pleaded before

the NIC and the court may apply its provisions to cases brought before it to ensure and

promote job security in both public and private sectors alike thereby putting an end to the

tyrannous rule of the doctrine of termination at will which had hitherto held sway in Nigeria.

The provisions of section 254C(2) of the 1999 Constitution (as amended by the Third

Alteration Act) has been put to test in the recent case of Aero Contractors Company of

Nigeria Ltd. v. National Association of Aircrafts Pilot and Engineers and 2 Ors44 where

Justice Kanyip directly applied ILO Convention No. 87 on Freedom of Association and

Protection of the Right to Organise of 1948 and ILO Convention No.98 on Right to Organise

44
(2014) 42 NLLR (Pt.133) p.664

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and Collective Barganing Convention of 1949 though the two Conventions have not been

domesticated in Nigeria. The issue before the Court was whether the defendant pilots were

engaged in essential services so as render their act of downing of tools and strike action

illegal under section 31(6) of the Trade Unions Act, section 48(1) of the Trade Dispute Act

and sections 1, 7(1) and 8(2) of the Trade Disputes (Essential Services) Act. Kanyip held that

according to the ILO Committee of Experts essential services are limited to hospital sector,

electricity, water supply, telephone services and air traffic control but not aircraft services

generally. And since the defendants are not engaged in air traffic control, they are not

engaged in essential services and their right to strike cannot be declared illegal or hampered.

According to Kanyip there are two ways of approaching the issue and first is the question

whether the Constitution (Third Alteration) Act, 2010, which inserted section. 254 C (1) f &

h and especially (2) is not the domestication demanded by section. 12 of the 1999

Constitution itself. His answer is in the positive. He opined that the Constitution (Third

Alteration) Act, 2010 amended the 1999 Constitution. Before it was passed and assented to

by the President of the country, it was sent to all the “Houses of Assembly in the Federation”

and was ratified by majority of the Houses of Assembly, hence the alteration of the 1999

Constitution itself does effectively mean that the requirements of section12 of the

1999Constitution courts were and have been met when section 254 C(1) (4) and (h) and (2)

was enacted as per the Constitution (Third Alteration) Act 2010.

On the other hand, if the first approach were not to be the case, the second approach at

treating the issue is that both sub-sections (1) & (2) of S. 254 C of the 1999 Constitution, as

amended, commence with the word “Notwithstanding”. The word ‘Notwithstanding’ has

neutralised the effects of section12 of the 1999 Constitution. In sub-section (1) it is

“Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this

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constitution…” and in sub-section (2) it is “Notwithstanding anything to the contrary in this

constitution…” section12 qualifies as both “anything to the contrary in this constitution’ of

subsection (2) – And when the term “notwithstanding” is used in the section of a statute it is

meant to exclude an impinging or impending effect of any other provision of the statute or

other provision of the statute or subordinate legislation so that the said section may fulfill

itself.

Hence the use of the word “notwithstanding” in section 254 C (1) (f) & (h) & (2) of the 1999

Constitution is meant to exclude the impending effect of section 12 or any other section of the

1999 Constitution. Hence no provision shall be capable of undermining the said section 254

C. (1) (f) & h & (2) of the Constitution (as amended by the Third Alteration Act, 2010).

It is interesting to note that Justice Obaseki-Osaghe also engaged the provisions of section

254C(1) and (2) in the celebrated case of EjiekeMaduka v. Microsoft Nigeria Limited and 3

Ors .45 In that case, the applicant was an employee of the first respondent and also the

Diversity Champion for Women’s Right in West, East and Central Africa (WECA) for

Microsoft World-Wide which involved being an activist for Women’s Right and

opportunities within the company and across the region. The applicant alleged that the third

respondent (Emmanuel Onyeje, the Country Manager and the CEO of the first respondent

worldwide) had consistently and sexually harassed her by tickling her and other female

members of staff on the waist. As an activist for women’s rights, she fought against the third

respondent’s acts of sexual harassment by repeatedly warning him to desist from physically

handling and fondling her body and that of other female staff as they were acts of sexual

harassment. She reported the third respondent’s actions to the fourth respondents and the

Human Resources Manager who did nothing about it. When the third respondent’s actions

45
(2014) 41 NLLR (Pt.125) p.67.

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persisted, the applicant reported the matter to her husband who visited the third respondent in

the office and gave him a strict warning. The third respondent threatened the applicant to

retaliate and she was eventually given a letter of termination of employment.

In her judgment, the Justice first lamented the fact that labour law in Nigeria has no specific

provision for sexual harassment in the work place but the NIC by virtue of section 254 C (1)

(g) of the 1999 Constitution Third Alteration Act 2010 has the jurisdiction to entertain civil

causes and matters relating to or connected with any dispute arising from discrimination or

sexual harassment in the workplace. Therefore, by virtue of S. 254 C (2) of the 1999

Constitution as amended by the Third Alteration Act, the NIC shall have the jurisdiction and

power to deal with any matter connected with or pertaining to the application of any

international convention, treaty or protocol of which Nigeria has ratified relating to labour,

employment, workplace, industrial relations or maters connected therewith.

The court in the instant case having been so empowered, made recourse to international

conventions – particularly the United Nations Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) and ILO Discrimination (Employment and

Occupation) Convention 1958 No. 111 which have been ratified by Nigeria but not

domesticated for construing the fundamental rights of the applicant expressly guaranteed in

the 1999 Constitution as amended which embodies the concept of freedom from

discrimination and the right to dignity.

It should be noted however that the applicant asked for an award of general damages and

exemplary and aggregated damages. Reinstatement was not pleaded or asked. Hence the

court granted her only general damages of N13, 225, 000.00 against each of the first, second,

and third respondent.

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It should be noted that in the recent and controversial case of Aloysius v. Diamond Bank Plc46

the NIC directly applied ILO Convention 158 on Termination of Employment. The Claimant

was terminated on the ground that his service was no longer required by the employer even

though the appellant had earlier been accused of fraud. The court, in reliance on section

254C(1)(f) and (h) of the 1999 Constitution (Third Alteration Act, 2010), directly applied the

provisions of Termination of Employment Convention No.158 and Recommendation 166,

and held that the reason given by the Defendant was not valid not being connected to

competence, capacity or operational requirement as stipulated by the Convention. The

controversy surrounding this decision of the court includes the the fact that the Convention

has not been ratified by Nigeria. Section 12 of the Constitution mandates both ratification and

domestication of treaties and conventions before they can b e applied in Nigeria. Eventhough

the amended the Constitution in section 254C(2) allows direct application of labour related

conventions and treaties it subjects such direct application to the requirement of ratification

by the Executive. The court in the instant case noted the same fact that the treaty has not

ratified but still went ahead to apply it relying on section 254C(1)(f) and (h) which merely

provide for the jurisdiction of the Court to determine matters relating to unfair labour

practices and international best practices without stating modalities for such application.

Provisions of section 254C(2) which makes ratification a sine qua non for application of

labour related conventions and treaties was totally avoided by the court in its judgment.

The audacious pronouncement of the Court in this case may introduce some confusion into

labour jurisprudence as far as termination of employment is concerned. One would have

expected the Court to ground its decision on strong legal basis such as the ILO Constitution

under which every member state is obliged and mandated to give effect to the provisions of

Conventions and Recommendations whether or not such Conventions and Recommendations

46
(2015) 58 NLLR (Pt.199) 92

162
have been ratified and domesticated.47 Moreover, the same NIC in an earlier decision had

held that international best practice is a question of fact and as such it must be pleaded and

proven by any party who wishes the court to apply same.48 In Aloysius case, the Court

suomotuapplied the Convention as none of the parties by any means introduced or pleaded

the Convention in his pleadings before the Court. In order to avoid confusion as this in the

labour jurisprudence, it is imperative for the National Assembly to enact specific unfair

dismissal legislation.

6.4 CONCLUSION

The relevance of the NIC is most felt in measuring the productive aspect of the Nigerian

economy. Thus, yardsticks like per capital income used to measure the economy, so also is

labour equally important. The importance of labour is best amplified in economics which

prescribes labour as one of the major factors required in building an industrialized nation.49

Labour needs to be managed because if there is disequilibrium in society, it will affect the

economy and this is where the role of the NIC is most important and crucial. Without the

instrumentality of the NIC, the labour sector will lack any form of control which can result in

a paralysis of the Nigerian economy. The NIC has thus been put in place as an instrument of

the state to ensure stability in the labour sector. It serves as the umpire between the Labour

unions and the Federal Government which is quite a vital role to play in an economy.50

47
Article 9 of the ILO Convention provides Conventions may be applied by laws, regulations, collective
agreements, work rules, arbitration awards, court decisions or a combination of these methods. See ILO
Constitution at www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0:::55...ILOC,/ last visited 16/08/2016.
48
Oyo State Government v. Alhaji Bashir Apapa and Ors unreported, Suit No. NIC/36/2007 delivered on July
18, 2008.
49
With the incursion of the computer age and virtual world, it is presumed that labour will no longer be an
issue to contend with. This may, however, not be the case because labour which is personified by human
resources in terms of manpower will still be required not only to operate those computers but also to create
them.
50
The relevance of the NIC in the Nigerian polity cannot be undermined as its existence has averted serious
industrial crises in the country. Workers recognize that they have an avenue to air their grievances which is
quite a welcome development. However, the NIC has not been aggressive enough in its approach to the

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It must be noted that the NIC has some constraints in the dispensation of justice in trade

disputes towards the attainment of job security in the country. The Court has been strictly

limited in its award of reinstatement as a remedy in cases of unlawful termination of

employment. The Court only grants this remedy where the employment has statutory flavour

and where termination is as a result of the employee’s involvement in trade association.

It has been opined that the jurisdiction of the Court over international best practices and

unfair labour practice should be used to question the rule which permits employers to hire

and fire at will especially when it is noted that globally, it is no longer fashionable for

employers to fire employees without advancing any just cause.51

The National Assembly is called to duty here. It could borrow a leave from other common

law jurisdictions. The United Kingdom from which Nigeria inherited this common law

principle has since reformed its common law position by statute.52 In the framework,

employees are protected from being unfairly dismissed, provided they have been employed

for 12 months. In these cases, the onus of proof is on the employer to show that the reason for

dismissing an employee falls into one of the categories set out in the Employment Rights Act

of 1996. These categories include employee’s lack of capability or conduct or a genuine case

of redundancy. Unless the employer proves one of the above categories, the termination will

be automatically unfair. Moreover, similar feat has been achieved by other developing

jurisdictions such as South Africa and Kenya where the right to fair labour practice is

resolution of labour dispute matters. For example, it is given that the NIC is not a court of first instance in intra
and inter union matters. When such a case arises, one is required to make an application to the Minister of
Labour and Productivity who will then make a recommendation to determine whether the matter should be
resolved by arbitration by the Industrial Arbitration Panel or such other directive. But this is a country where
you have civil servants who are so powerful that they can ‘kill’ your file before it gets to the Minister’s desk.
Should it reach the Minister, it may happen that he has a bias which does not count in your favour. Hence, it is
opined that the law should be amendedto allow partiesdirect access to the IAP or the NIC as opposed to
waiting on the recommendations of the minister (a member of the executive arm of government) before such
can occur. See C.K. Agomo, supra note 29p. 340
51
B.B. Kanyip, supra note 4 p.4
52
This followed the Donovan Report, Reform Reflections and the law of Unfair Dismissal came into force with
the Industrial Relations Act, 1971.

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guaranteed in their Constitutions and the concept of unfair labour practice is clearly defined

and provided for in their labour legislation.

165