By Folabi Kuti SAN
Views on the National Industrial Court of Nigeria’s (NICN) power to adjudicate over disputes in the realm of fundamental rights enforcement are far from unanimous. More pointedly: can a breach of employment rights amount to a breach of fundamental (human) rights; maintainable as a single action in that court? Or are they more aptly bifurcated as principal and ancillary claim? Dissonance in the Court of Appeal’s decisions on the point, suggest the question is far from settled. To be sure, the first-instance labour court has also offered differing views on some related matter within the subject focus. A few insights will emerge from an exposition of the references below.
Setting the stage
In Dapaah & Anor v. Odey (2018) LPELR-46151(CA); and United Bank for Africa Plc Vs Ezekiel (2018) LPELR 43779(CA) the Court of Appeal has recently, and quite explicitly, reinforced the NICN’s additional exclusive jurisdiction per Section 254C (1)(d) of the Third Alteration to the 1999 Constitution (“the Constitution”). This section empowers the NICN to hear and determine complaints of fundamental rights breaches connected with any labour, employment, trade unions, industrial relations and matters arising from the workplace, or relating to or connected with disputes arising from payment or non-payment of salaries, wages etc. However, the self-same Court of Appeal appears to have applied a restrictive approach to this very issue in Extension Publication Limited v. Sunday Oyedepo (2022) LPELR-57302 (CA).
The case centres on alleged breaches of fundamental rights; brutalization, harassment, intimidation, inhuman treatment, wrongful arrest etc., clearly shown to have occurred during the claimant’s employment. The claimant’s affidavit evidence disclosed in part:
“…the 4th Respondent is a publishing company and my employer and at its instance, I was arrested, harassed, intimidated, assaulted and detained by the 2nd and the 3rd Respondents.”
The Court of Appeal held:
“Having regard to the respondent’s claims in this case and the clear and unambiguous provisions of Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Fundamental Rights (Enforcement Procedure) Rules, 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.” (per Adumein JCA (Pp. 12-15, paras. C-E).”
The principle of law is well-worn: the claim is the guiding compass in ascertaining jurisdiction. On such a pedestal, the court’s holding is unassailable. But the prescription is not all there is to consider. Judicial authorities have stipulated that a claim ought to be discerned alongside its subject matter. In this latter context, the holding just referenced above with authority, would seem to run contrary to His Lordship, Abiru JCA’s (as he then was) view in Diamond Bank Plc v. Chijioke Unaka & Ors (2019) LPELR-50350 (CA).
In considering the more expansive provisions of Section 254(C) on the NICN’s exclusive jurisdiction on the subject matter, His Lordship held, ex cathedra, thus:
“The present position of the law therefore is that the High Court and the Federal High Court have a concurrent jurisdiction in cases of fundamental human rights irrespective of the causative subject matter or the status of the parties concerned, except where the breach of fundamental rights 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 1999 Constitution (as amended), 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 non-payment of salaries, wages, etc – SCC Nigeria Limited Vs George (2019) LPELR 46963(CA).”
The issue recurs courtesy of the NICN’s decision in Basil Offoh v IMT, Enugu & 2 Ors. (Unreported Suit No. NICN/EN/49/2023, (delivered on July 19, 2024; per Hon. Justice O.O Arowosegbe); albeit with some fresh perspectives and prudential guidelines. First, a brief factual narrative.
The claimant approached the labour court with an originating motion seeking, in the main, a declaratory relief proclaiming the stoppage of his salary as an unfair labour practice and a breach of his fundamental human rights as guaranteed by both the Constitution, and the Universal Declaration of Human Rights. He also sought final injunctive reliefs seeking to restrain the defendant from ‘…further stoppage of the claimant’s earned salaries without following due process of the law’, and a claim for exemplary damages.
The defendant in reaction raised a preliminary objection to the suit without replying to the substantive action. The twin-pronged objection challenged: (i) the filing of an employment-related dispute as a fundamental rights case under the fundamental rights enforcement procedure rules; and, (ii), the propriety of instituting such a claim via originating motion.
The objector argued on the former plank, that the claim had nothing to do with any breach of the claimant’s fundamental rights under Chapter IV of the Constitution, and that the principal and ancillary reliefs were hinged on employment issues between an employer and an employee; which cannot be dealt with as a ‘breach of fundamental rights’ case. On the latter limb, the objector argued that in any event, such an employment-related fundamental rights complaint cannot be commenced by originating motion but by a writ of summons, as evidence ought to be taken orally to ascertain the truth; or by a complaint, as prescribed in the Rules of Court. The stage was thus set for judicial pronouncements on, inter alia, the pointed focus of the present review.
Commentary
The Learned Law Lord rejected the contention that the action was improperly commenced. His Lordship distinguished that the action was not commenced further to the Fundamental Enforcement Procedure Rules but rather within the permissible amplitude of both the establishment statute and the procedural rules of the NICN which, historically, strive to reject technical points from trumping over substance.
Citing with approval the Supreme Court’s approach in Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 (SC) and FRN & Anor v. Ifegwu (2003) LPELR-3173 (SC) where the apex Court emphasised the need for flexibility on the procedure of litigating fundamental right, the Court (in Basil Offoh) agreed that ‘any originating process that makes clear the grievance, is sacrosanct’.
In more emphatic and, arguably, standalone terms, the Court reasoned that even though the Rules of Court provide for a ‘complaint’ as a means of proceeding ‘where the suit relates to causes of action on Chapter IV of the Constitution, as enjoined by S. 254C-(1)(d) of the Constitution’, the self-same Rules did not limit what matters may be specifically commenced by originating motion; even as Order 3, Rule 4 expansively provides for originating motion where the action is one seeking judicial review.
The Court then opined though, with much respect, not perceptibly flowing from the forensic arguments put before it, that as judicial review relates to the method of questioning the decisions of administrative, executive or ministerial authorities considered to be ultra vires constitutional or statutory provisions, and as the major complaint 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 (affidavit in support) of the OM (originating motion). Thus, OM (originating motion) lawfully commenced this action.’ The court further relied on the earlier decision of the Court as endorsing use of originating motion to litigate similar breach of fundamental rights in the context of employment relations.’
The finding of the court here strikes a discordant tone when viewed against its earlier decisions; albeit, not referenced in the decision under scrutiny. Prior pronouncements consistently upheld the limitations to proceeding through any other mode of commencement except by means of complaint. The mandatory lettering in Order 3 Rule 2 (2) (b) of the NICN (CP)R, is that an action filed pursuant to the NICN’s jurisdiction on fundamental human rights shall be commenced by complaint.
Reference is made to the following decisions of the court on the point: Alozie Chimezirim Manasse v. Sterling Bank Plc& EFCC unreported Suit No. NICN/LA/173/2017, judgment delivered on February 16, 2018, per Hon. Justice B.B Kanyip PhD (as he then was, now PNICN); Friday Maekae v Niger Delta Basin and Rural Development Authority Unreported Suit No: NICN/PHC/68/2018, judgment delivered on January 28, 2021 per Hon. Justice F.I Kola-Olalere, sitting in Port Harcourt Division; Sunday Ukpai v Ajuba Nigeria Limited & Anor unreported Suit No. NICN/LA/77/2015, judgment delivered on January 28, 2018, per Hon. Justice B.B Kanyip PhD (as he then was, now PNICN); Lawyers Alert Initiative for the Protection of the Rights of Children, Women and the Indigent v HAGF & 2 Ors. unreported Suit No. NICN/ABJ/37/2019, judgment delivered on June 10, 2020 per, Hon. Justice B.B Kanyip PhD, PNICN; Andrew Esiri Okoto v. Guinness Nigeria Plc unreported Suit No. NICN/LA/72/2017, judgment delivered on November 22, 2018, per Hon. Justice Oji. PhD.
More broadly, the court (in Basil Offoh’s) intuited that the narrow strictures of the Rules, mandating that human rights complaints in the world of work are to be commenced in a particular way, is rightly overtaken in this case by the overarching ultra vires act of the respondents. This provided the needed justification for proceeding by originating motion; recalling also, that the same Rules recognize that judicial review proceedings can be commenced in the same way.
Irrespective of what the claim filed was, the court would appear to have discerned the real complaint as one asking for judicial review when His Lordship remarked thus:
‘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.’
The purposive interpretation to allow for progressive development of the law in this area is laudable, no doubt. However, and with due respect to the Learned Law Lord, the suggestion that the action could well pass for judicial review might have stretched the interpretative exercise a limb beyond acceptability. This is more so when tested against the position that judicial review, whether under the High Court rules or less formalistic NICN, by its sui generis context and content, is a special invocation of the court’s supervisory jurisdiction that must be specifically sought or asked for. Attending this special procedure are distinct available prerogative reliefs; notably absent in the case under review; and inherent landmines as to approach, mode of commencement, strict timelines etc. The Court, with respect, was on a flawed plinth (t)here.
The foregoing observations will however not detract from the Court’s quality and clarity of thought on the pointed issues in the case under review, and by extension the subject-matter of this commentary. Perhaps where this is more evident is the court’s wide-ranging inquiry into the extent of powers conferred on the High Court in Section 46 of the Constitution; on the jurisdiction to ‘interpret’ and ‘apply’ the provision of the Constitution on FHR.
His Lordship’s persuasive analysis was distinctively different. Drawing from an enormous body of research, the Court went to great lengths in identifying the normative considerations and oft-repeated arguments on adjudication of fundamental rights within the context and content of Section 46 of the Constitution. The court also identified the appropriate High Court that an aggrieved applicant can apply to for enforcement of rights without express mention of NICN; elucidated the contextual use of “enforcement” and “application” in SS. 46(2) & 254C-(1)(d) of the Constitution; expounded whether within the context of industrial relations, an application for enforcement of fundamental rights simpliciter without the interposition of any other cause of action is cognisable at the NICN etc.
Here, the Court took on a forensic tour de force in a well-argued passage of the judgment:
“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 grund norm 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.
- 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 specialized 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 specialized 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.”
One other marked ratio worthy of mention is the extrapolative analogies from the Indian Supreme Court’s decision in J. Aswartha Narayana v. The State of Ap (delivered December, 2021) that:
‘…right to salary is a 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 treatment.
In domesticating the Indian judicial thinking within local circumstances, the Law Lord dwelt on/situated basic labour rights constituting fundamental rights within the intendment of S. 254C-(1)(f)-(h)&(2) of the Third Alteration to the Constitution which makes these ‘international best practices and treaty applicable in Nigeria together with the associated Articles in line with composite construction of composite instruments’.
Parting thought
All said, Basil Offoh offers – in well-fortified legal verbiage – welcome clarity on the law in this area of enforcement of rights in the context of labour relations. Even as – coming from a first-instance court- one is cautiously optimistic that it may not well mark the final word on this increasingly vexed issue.
Folabi Kuti SAN, is Lead Partner at Union Attorneys (Incorporating KutiLegal). folabikuti@kutilegal.com