Book Reviewed By Folabi Kuti SAN
Opening Speech by Learned Silk
When asked to do a review of Fifoot’s[1] ‘English Law and its Background’, Vernon X. Miller, one-time DJean of the Columbus School of Law readily admitted that it was an arduous task. He acknowledged his limitation thus: The writer of this review feels that he cannot be critical about Mr. Fifoot’s book. He likes it too well to be able to discover any shortcomings in the author’s style, plan or statement. Perhaps the most enlightening comment that he can make about it is that the author does not purport to define “the law,” he explains it by describing the judicial process much as Cardozo does in The Nature of the Judicial Process, or Llewellyn in The Bramble Bush.
These words are apt here and the only disclosure I could make to Adewale Smatt-Oyerinde, Director-General of the Nigeria Employers’ Consultative Association (NECA) – when he asked me to do a review of my Lord’s latest offering. In a more colloquial parlance, this is an ‘improved edition’ of the Hon. Justice B.B Kanyip’s keynote speech at the NECA National Labour Adjudication Forum under the Theme, ‘Labour Adjudication in Nigeria: The Present and the Future’ which held on 1 February 2023, at the Main Auditorium, NECA House, Plot A2, Hakeem Balogun Way, Alausa, Ikeja, Lagos. Without a reminder, my Lord is the President of the National Industrial Court of Nigeria. On this note, we should thank NECA, publishers of the book, for bringing the rich and seminal speech to the widest possible readership.
Lest the reader draws a tempting, albeit flawed conclusion, the book, this very book, of 106 pages is not a speech, or like some colleague, attempting to coin a new phrase the other day posed: a monograph of speech! Save that the book owes its origin – and, fortuitously so – to the eminent gathering assembled by NECA on February 1, 2023 to address, and advertently have my Lord hold ex cathedra, whilst interrogating – with full authority and commandeering majesty – the subject discourse, this is a full-length book that has traversed the diverse boundaries of the subject’s thematic preoccupation, whilst indeed interrogating the present – the emergent Labour Law jurisprudence, and opining the shape of things to come. Understandably, my Lord who (in addition to his rich and intimidating laurels as a scholar on the bench sits as a Member of the International Labour Organisation (ILO) Committee of Experts, is eminently qualified to interrogate – and by every means, exhaustive – the broad spectra of the of the subject thematic preoccupation.
Book Review
As earlier stated, the book was conceived from a speech. The format of presentation/arrangement is, inevitably, in paragraphs: 108, to be precise. The enlightening discussion starts with a historical excursion into the chequered history of the present-day National Industrial Court of Nigeria, with regard to its status, powers and exclusive jurisdiction, which precipitated the alteration of the Constitution of the Federal Republic of Nigeria (1999) by the Third Alteration Act 2010. His Lordship, at paragraph 13, discussed the Court in the prism of its role or work in labour adjudication in three different eras: the 1978-2006 era when the court’s jurisdiction was ‘restricted to only trade disputes’; the 2006-2011 era, when jurisdiction was ‘expanded beyond mere trade disputes’, to the present-day, post-2011 era, where the NICN ‘jurisdiction under the 1999 Constitution now covers all matters of labour/employment and industrial relations (and matters incidental to or connected therewith).’ The reader cannot but savour my Lord’s scholarly disposition here: ‘…between sections 254C and 254D of the 1999 Constitution, which respectively deal with the jurisdiction and powers of the NICN, the 1999 Constitution uses the word “any” 42 times in the description or emphasis of the jurisdiction and power of the Court.’
From the ‘historic trajectory of the jurisdiction of the Court’, the discussion progresses into the confusion around ascertaining, with certainty, the scope of the jurisdiction of the Court in enumerated matters such as intra and inter union disputes. A great deal of ink, thoughtfully and thoroughly applied, was spilled to cover the varied issues arising from the confusion, majorly from the appellate courts on the matter.
The engaging case studies on divergent case law interpretations on the jurisdiction of the National Industrial Court over torts committed in the workplace formed the focus of discussion in paragraphs 23-26. The potential width of the confusion arising from, in some cases, the decisions of the Court of Appeal on the extent of the prescribed jurisdiction of the National Industrial Court in certain enumerated matters, and the uncertainty as to its limits, followed suit in paragraphs 27-34.
The question of whether employment/labour law claims are caught by the statutes of limitation also has its share of contrasting appellate decisions. This was fully addressed in paragraphs 35-38, whilst paragraphs 39-42 examined the same problem, albeit as they relate to the ‘twin and related garnishee questions whether the Central Bank of Nigeria (CBN) is a public officer for purposes of garnishee orders; and whether obtaining prior consent of the Attorney-General under section 84 of the Sheriffs and Civil Process Act 2004 is mandatory’. It is instructive to note that His Lordship did not just identify the problems, but also found a way, within those lines, to proffer solutions, and/or prudential guidelines that can help resolve these problems.
Now to the critical work of the Court, that is, labour adjudication ‘under section 254C(1)(f) and (h), and (2) of the 1999 Constitution (and section 7(6) of the National Industrial Court (NIC) Act 2006) of the NICN to, when adjudicating, apply international best practices in labour and the Treaties, Conventions, Recommendations and Protocols on labour ratified by Nigeria; as well as the jurisdiction and power under section 254C(1)(f) of the 1999 Constitution over unfair labour practice.’ A legal realist, my Lord’s emphasis is not on broad, sweeping theory, but on “specifics.” Here, that is paragraphs 44-46, my Lord’s robust discussion of the varied instances or cases where the Court has held certain practices to be unfair labour practices is a compendious material on the frequently litigated question or ascertainment of ‘unfair labour practice’, as it relates to the diverse fact patterns that are submitted for adjudication before the court.
Looking into the future, availing provisions of the Constitution of the Federal Republic of Nigeria (1999), and the inflexible workplace rights covered in a number of international instruments ratified by Nigeria. His Lordship predicts robust litigation in the future on ‘economic and social (eco-soc) rights which inure under Chapter II of the 1999 Constitution, which deals with Fundamental Objectives and Directive Principles of State Policy. These rights include: the right to work (not just to be employed, but to be given work when employed); the right to fair and decent wages; rights as to working conditions including decent service conditions (the rights here bear close affinity with the concept of unfair labour practice); right to safe and healthy working conditions; right against unfair dismissal (the NICN already recognises the concept of constructive dismissal) relative to the right of the employer to hire and fire at will (this brings to the fore the problem of flexicurity i.e. the tension between flexibility demanded by the employer and security demanded by the employer — the employer’s cry for sustainable enterprises is at the heart of this tension); equality rights including as between men and women, equal pay, equal treatment, etc; right to privacy in the workplace; right to information, consultation and representation within the organisation; right to work reference, etc.’
I can go on, but I am reminded that this is a review, not a summary of the book. The foregoing should whet your appetite enough to make the reader want to drink from the rich well/tap of my Lord’s seminal interrogations of the future of labour adjudication bordering on ‘the needs of sustainable enterprises’; balancing the competing rights/interests in the world of work; triangular employment (my Lord updated the keynote speech, post-event, to review/discuss recent decision of the Court of Appeal impacting on triangular employment relationship etc- 60-73); the gig economy and the impact of new technology on the labour market, etcetera etcetera.
The book is sizeable, running to 106 pages. As mentioned above, it is divided into paragraphs, flowing successively and coherently on the discourse. As a result, the book is rich with material and information. The depth and width of research is evident from the diverse materials put on display. The book is clearly written, but this is not a casual read. Instead, it is comprehensive and authoritative.
What then, are the shortcomings, or failings, of the book? A reviewer, I am told, must be critical, objective and certainly find something to complain of. I am thus duty bound to note that there is that special demon, Titivillus (also referred to as “the original printer’s devil“) lurking somewhere in the mid-region of the book: Page 104 – an upset in good order- occurs right after page 47, and then succeeded by pages 105 and 106, before I think, the devil was ‘bound’ (pun intended), and page 48 followed suit. Thus, the final page on the book reads ‘103’, but as it concludes with an incomplete sentence, the general reader would no doubt have to go look for the ensuing paragraph/page. This failing, not anything within the author’s power, does not in any way detract from the substance: the deep learning that the book drips.
Appreciation
I appreciate His Lordship, Justice B.B Kanyip, Phd, and the DG of NECA for finding me worthy to do this review. Hard as I tried, I know that I have not written a review that NECA will consider in substance (or, more appropriately, evident lack of same) for a monograph of speech in the new future. I can only try. I thank you all for your patience and kind attention.
Footnotes
[1] C. H.S Fifoot FBA was a British legal scholar and a fellow of Hertford College, Oxford, from 1924 to 1959. He was known for his works on English legal history and for his textbook on English contract law, commonly known as Cheshire and Fifoot’s Law of Contract, now in its seventeenth edition.
Kuti is a Partner, Perchstone & Graeys LP who can be reached through folabikuti@perchstoneandgraeys.com; 08023419644.