By Folabi Kuti SAN
To properly tie a bow on the year that was 2023, an examination of key developments in the employment and labour law space will help to set the stage for not only a studied reflection of up-to-date jurisprudence in this area, but also a simultaneous scan of judicial horizons for possible trends, likely to impact the quality of employment relationships in 2024 and beyond.
Hon. Thelma Osammor v Investment and Securities Tribunal & 2 Ors (Unreported Suit No. NICN/ABJ/57/2023, the judgment of which was delivered by the National Industrial Court of Nigeria per Hon.Justice B.B Kanyip, PhD, OFR, (PNICN)) on 26 July 2023) is a seminal decision that, inter alia, interrogated the Executive’s power to remove tenured officers from their offices in the course of dissolving ‘Boards of Federal Government parastatals, agencies, institutions and government owned companies’.
The court affirmed the claimant’s entitlement to serve her fixed contract term of four (4) years, as a fulltime member of the 1st defendant body since her removal could not be premised on any of the grounds specified in the applicable sections of the 1st defendant’s establishment statute. Not done, the court at length clarified the status of the Investment & Securities Tribunal (IST) as a creature endowed with the power of a ’civil court’. While simultaneously impugning the claimant’s flawed removal – erroneously founded on ‘dissolution of board’, it held that the IST does not even have a ‘Board’ that can be so dissolved, factually and/or legally. Osammor was accordingly held entitled to her salary for the ‘unexpired six months period of her fixed term contract’.
In a separate matter, a chairman of the same Tribunal was removed for misconduct amounting to a ground for removal from office as contemplated in the establishment Act. The Industrial Court in Barrister Isaiah Idoko v Hon Minister of Finance & 5 Ors (Unreported Suit No. NICN/ABJ/409/2019, the judgment of which was delivered by the National Industrial Court of Nigeria per Hon.Justice O.A Obaseki-Osaghae on 5 December 2023) held that the claimant’s appointment was not one with statutory flavour, and that his removal accorded with the establishment statute, in view of the fact-pattern before the court.
Two landmark decisions highlighted a few grey areas in pensions administration. In Olugbenga Adams Adedipe v Pensions Alliance Ltd & Anor (Unreported) Suit No. NICN/PHC/41/2022, the judgment of which was delivered on 11 January 2023; per Hon. Justice Z.M Bashir) the court brought a welcome clarity to the issue of whether the defendants (pensions administrators) could prevent the claimant from withdrawing a lumpsum (50%) of his pension contribution. And this, without a clear life expectancy matrix for computing programmed monthly withdrawals, before being benchmarked for 25%. Drawing from instructive rules of interpretation, the court held that a person entitled to a pension shall have the right to it as regulated by law, and the benefit so accruable shall neither be withheld nor altered to his disadvantage. This ratio appears here to stay for the foreseeable future.
Mr. Sotonye Boyle v ARM Pension Managers (PFA) Ltd (Unreported) Suit No. NICN/PHC/159/2021, the judgment of which was delivered on 30 January 2023; per Hon. Justice N.C.S Ogbuanya) was a lengthy, careful, and detailed judgment, offering a rich, varied discussion and analysis of observable lacunas in regulatory performance of efficient pension scheme administration in Nigeria. The court admirably admitted to an ‘analytical legalistic excursion prying into the operations’ of the regulator. Much was also offered in passing as the opportunity presented itself for the court to offer prudential guidelines for streamlining hazy areas of pension administration in Nigeria; particularly the ‘haphazard implementation and resulting dichotomy and difficulty being experienced in processing pension payments of some judicial officers who exited the Contributory Pension Scheme in their previous employment by virtue of the provisions of the Pensions Reforms Act.’ The case considered, in the main, the legal regime for ‘access to withdrawal of funds in Retirement Savings Account (RSA), particularly as regards an RSA Holder who had withdrawn a lump sum payment in previous employment but later secures another employment wherein further contributions were made in the RSA during the subsequent employment’.
In Mrs. Linda Jokanola v Nigeria LNG Limited (Unreported) Suit No. NICN/LA/261/2013, the judgment of which was delivered on 10 May 2023; per Hon. Justice M.N Esowe) the claimant challenged her suspension and termination of employment claiming that it was motivated by her refusal of a DNA test to determine the maternity of her children. The court held, inter alia, that ‘the way and manner the defendant went about its bid to ascertain the veracity of the claimant’s claims as regards her application for maternity leave was wrongful and unconstitutional, as it violated her right to dignity of person and private life; it also constituted unfair labour practice as it stirred psychological harassment against CW1’. The defendant company was ordered to pay the claimant the sum of N10,000,000.00 (Ten Million Naira only) as general damages for the victimization, harassment, and wrongful termination of her employment.
Failure to issue the claimant a formal query, or follow the detailed procedure in the defendant company’s ‘Disciplinary Procedure for Managers’, coupled with the imposition of arbitrary sanctions, extraneous to the defendant’s disciplinary policies, was held to amount to unfair labour practice in Mrs. Eluemuno Olumagin v Total E & P Nigeria Limited (Unreported) Suit No. NICN/LA/580/2018 the judgment of which was delivered on 16 May 2023; per Hon. Justice Elizabeth Oji, PhD ) The company was damnified in damages.
In Nkechi Catherine Ogbonnah v Mikano International Limited (Unreported) Suit No. NICN/LA/178/2019 the judgment of which was delivered on 13 June 2023; per Hon. Justice R.H Gwandu) the court awarded NGN 10,000,000 (Ten Million Naira) as general damages to assuage an employee who was terminated shortly after she resumed her fixed-term employment. The court considerately noted that ‘the loss of employment without reason and so suddenly after one resumes will naturally destabilize the trajectory of not only personal lifestyle but also ones career, hence the reason the ILO stipulates that an employee’s service can no longer be terminated as it was before, for no reason at all.’
In Mr. Haruna Ishola Salau v Sterling Bank Plc (Unreported Suit No. NICN/ABJ/36/2022, the judgment of which was delivered on 4 October 2023; per Hon. Justice O.O Oyewumi) the NICN noted that operational concerns can trigger unilateral contractual alterations by employers, relating to changes within its managerial prerogative. However, the court emphatically held that an employer’s right to unilaterally alter conditions of service is never extended to the employee’s accrued benefits or basic conditions of service. Relatedly, in Pius Ohimai Ovbioise v. Mr. Aderibigbe Adedeji SAN [Trading under the name and style of Adedeji, Owotomo & Associates] (Unreported Suit No. NICN/LA/484/2020, the judgment of which was delivered by the National Industrial Court of Nigeria per Honourable Justice (Prof) Elizabeth A. Oji on 22 February 2023) the court reinforced the position that where an employee is entitled to 13th month’s salary by virtue of an express provision of the employment contract, it becomes a mandatory and contractual obligation to be fulfilled by the employer, and failure to fulfill this obligation constitutes a breach of the contract.
Alphacyn Nigeria Limited v Registered Trustees of Prince and Princess Estate Residents Association & Anor (Unreported Suit No. NICN/EN/13/2018, the judgment of which was delivered by the National Industrial Court of Nigeria per Hon.Justice B.B Kanyip, PhD, OFR, (PNICN) on 24 January 2023) is remarkable for more reasons than one. The court blurred the distinction between ‘contracts of service’ and ‘contracts for service’ situating both within the Court’s expansive employment and labour matters jurisdiction. Making copious reference to the International Labour Organisation’s recognition of a triangular employment relationship as a disguised or objectively ambiguous employment relationship, courts are called upon to give due priority to the primacy of facts and look to the substance, not the form, of the relationship or what the parties chose to call it.
In Adamu Isa v Keystone Bank Ltd (Unreported) Suit No. NICN/YL/05/2021, the judgment of which was delivered on 26 July 2023; per Hon. Justice Mustapha Tijjani) , Boniface Kendan v United Bank for Africa (Unreported) Suit No. NICN/MKD/64/2017, the judgment of which was delivered on 26 April 2023; per Hon. Justice (Dr.) I.J Essien) and Shalom Microfinance Bank v Yewande Elebiola & 2 Ors(Unreported) Suit No. NICN/LA/114/2019, the judgment of which was delivered on 24 August 2023; per Hon. Justice M.N Esowe) the court refused to avail sympathetic consideration to the complaints of financial sectors employee(s) who, on findings of fact before the court, committed serious infractions against their employers. After causing financial loss, these employees hurriedly resigned to avoid disciplinary measures against them.
Grace Ijeomah v Guaranty Trust Bank Plc & Anor (Unreported Suit No. NICN/YEN/24/2018, the judgment of which was delivered on 5 October 2023; per Hon. Justice B.A Alkali) subtly highlights the inherent risk in stating the mode of exit in a reference letter. Richard Ogagaoghene Okagbare v United Bank for Africa (Unreported Suit No. NICN/ASB/47/2020, the judgment of which was delivered by the National Industrial Court of Nigeria per Hon.Justice J.J Targema, PhD, on 18 January 2023) endorsed the 2 year benchmark established by Sahara Energy Resources Limited v. Oyebola [2020] LPELR51806(CA) as the basis for the award of damages for the defendant bank’s malicious and wrongful dismissal of the claimant and non-issuance of work reference.
Joseph Johnson Osayande v The Shell Development Company of Nigeria Limited & Anor(Unreported Suit No. NICN/YEN/48/2016, the judgment of which was delivered on 20 April 2023; per Hon. Justice N.C.S Ogbuanya) offers fresh perspectives on the validity and applicability of The Guidelines on Release of Staff in Nigerian Oil and Gas Industry 2019, made pursuant to Reg.15A of the Petroleum (Drilling and Production) Regulation 1969 (as amended). A condition precedent of obtaining consent of the Minister of Petroleum Resources before any form of disengagement of staff can be valid in both public and private sectors of the Petroleum/Oil & Gas sector/industry. The court held that the Guidelines is an employment policy of the Federal Government of Nigeria geared towards achieving that aspect of local content policy in the Nigerian Oil and Gas Industry, by regulating and promoting employment protection in favour of nationals who are likely victims of absolute application of legal regime of the common law Master-Servant employment relationship. The court further held that ‘contracting parties are bound to obey policy guidelines relating to their contract, which would constitute implied terms of such a contract, of which the courts are bound to take judicial notice of and enforce, in a dispute arising from the contract between the parties’.
The court however held in Uche Okwudiri Weli v Schlumberger Support Services Nigeria Limited (Unreported) Suit No. NICN/PHC/139/2018, the judgment of which was delivered on 11 October 2023; per Hon. Justice F.I Kola-Olalere) that the Nigerian Oil and Gas Industry Act, No. 1 of 2015 (as amended in 2019) and its Guidelines was not applicable to the contract of employment that existed between the claimant and the defendant company as there was no pleading nor evidence on same. The same case also highlighted the need for compliance with the procedure for making claims under the Employees’ Compensation Act, 2010.
The court in Mrs. Cynthia Oyinyechi Odimma v Federal Road Safety Commission & Anor (Unreported) Suit No. NICN/EN/18/2018 the judgment of which was delivered on 28 November 2023; per Hon. Justice O.O Arowosegbe) noted how the wrongful conduct of an employee can sometimes be wrongly ascribed as the general disposition of the employer. It condemned the claimant’s misconduct as negatively impacting the public image of the Corps [the 1st defendant] and their breadth of opportunities to access private accommodations in the public.
The court’s decisions in Nigeria Social Insurance Trust Fund Management Board v Voyage Bolton Hotels (Unreported) Suit No. NICN/PHC/18/2023, the judgment of which was delivered on 24 July 2023; per Hon. Justice Z.M Bashir), Nigeria Social Insurance Trust Fund Management Board v Oakland International School (Unreported) Suit No. NICN/ABJ/334/2022, the judgment of which was delivered on 7 July 2023; per Hon. Justice O.A Obaseki-Osaghae), Nigeria Social Insurance Trust Fund Management Board v Bedrock Int’l School (Unreported) Suit No. NICN/YEN/34/2022, the judgment of which was delivered on 18 July 2023; per Hon. Justice B. A Alkali) reinforced the obligatory compliance by employers of labour with the Employees Compensation Scheme under Employees’ Compensation Act, 2010. Compliance is mandatory, not optional, for every employer in both the public and private sectors, excluding only members of the armed forces.
The court’s decisions in Mr. Aighobahi Osayomore Desmond v Aicetec Nigeria Limited (Unreported) Suit No. NICN/LA/312/2021 the judgment of which was delivered on 16 May 2023; per Hon. Justice Elizabeth Oji, PhD) and Zainab Abdulmumini v Hwa Chong Household Utilities Ltd & Anor (Unreported) Suit No. NICN/28/2020 the judgment of which was delivered on 27 April 2023; per Hon. Justice E.D.E Isele) endorsed making claims against negligent employers for compensatory damages for the dependants/beneficiaries of a deceased employee who died in the course of employment with the company.
The circumstance of the bond sought to be enforced by the claimant/employer in Landmark University v Peace Ayegba (Unreported) Suit No. NICN/IL/13/2021, the judgment of which was delivered on 22 November 2023; per Hon. Justice K.D Damulak) was held to be ‘unfair, unreasonable, forced labour, defective and unenforceable’ much the same as in Dangote Oil Refining Company Ltd v Godwin Aye & 2 Ors. (Unreported) Suit No. NICN/LA/78/2022, the judgment of which was delivered on 6 December 2023; per Hon. Justice M.N Esowe) where the Court held that the claimant company led unsatisfactory evidence to show that it provided training for the employee. On the other hand, in Dr Adekunle Phillips Adewuyi v Ladoke Akintola University of Technology, Ogbomosho (Unreported) Suit No. NICN/IB/53/2014, the judgment of which was delivered on 19 July 2023; per Hon. Justice J.D Peters) the bond was held to be effectual, and the covenantor held to his bargain of serving the defendant (University) for four years having spent four years abroad earning his Ph.D on a study leave with pay availed him by the defendant (University).
Similarly, in Dr. Abubakar Sha’aban v Ahmadu Bello University (Unreported) Suit No. NICN/KD/12/2022, the judgment of which was delivered on 11 January 2023; per Hon. Justice S.O Adeniyi) , the claimant was held obliged by the agreement to refund his salaries and allowances for six (6) years, that is, salaries and allowances of twice the period of his Study Fellowship granted by the Defendant, excluding, the Study Fellowship grant. In Overland Airways Limited v Ademola Opaleye & 3 Ors (Unreported) Suit No. NICN/LA/602/2018, the judgment of which was delivered on 30 January 2023; per Hon. Justice I.G Nweneka) the defendant in breach of a bonding agreement was held liable to a prorated bond sum less the years he had served of a bond agreement.
The court in Susan Alu Ogar v Government of Cross River State (Unreported Suit No. NICN/CA/30/2022, the judgment of which was delivered on 11 December 2023; per Hon. Justice S.Kado) and Akomaye v Government of Cross River State (Unreported Suit No. NICN/CA/32/2022, the judgment of which was delivered on 11 December 2023; per Hon. Justice S.Kado) condemned executive interference with judicial process, while declaring a state law adopted for the payment of retirement benefits to judicial officers as inconsistent with the explicit provision of Constitution of the Federal Republic of Nigeria,1999 (as amended). The same in Hon. Justice M.S Ambrusa (Rtd) v Kebbi State Government (Unreported Suit No. NICN/SK/01/2023, the judgment of which was delivered on 26 July 2023; per Hon. Justice R.B Haastrup). In similar vein, the court in Hon. Mahmoud Mamman Abba v. The Governor of Adamawa State & Anor(Unreported) Suit No. NICN/YL/01/2021, the judgment of which was delivered by the National Industrial Court of Nigeria per Hon.Justice Mustapha Tijjani, on 14 March 2023) and Hon. Balarabe Yakubu Dandija & 2 Ors. v Govt. of Bauchi State (Unreported Suit No. NICN/BAU/14/2016, the judgment of which was delivered by the National Industrial Court of Nigeria per Hon.Justice Mustapha Tijjani, on 21 July 2023) held that a state House of Assembly lacked the legislative competence to enact a law to prescribe salaries and remuneration for holders of political offices other than those explicitly set out in the Constitution of the Federal Republic of Nigeria,1999 (as amended). Consequently, the provisions of the state laws to this effect were declared null and void to the extent of their inconsistency with the Constitution.
In Road Transport Employers Association of Nigeria v Executive Governor of Lagos State & 36 Ors (Unreported) Suit No. NICN/LA/381/2022, the judgment of which was delivered on 18 April 2023; per Hon. Justice M.N Esowe) the court declared invalid, unlawful, and unconstitutional the purported dissolution of a trade union registered under the Trade Unions Act and the appointment of a Caretaker Committee to run its affairs, by the state Government. Drawing influence from ILO literature and jurisprudence on trade union pluralism the court in Yusuf Abdulkadir & 16 Ors v Minister of Labour & Employment & 3 Ors (Unreported) Suit No. NICN/AK/04/2022, the judgment of which was delivered on 16 May 2023; per Hon. Justice B.B Kanyip, PhD; PNICN) held that the claimants have the rights under the 1999 Constitution and other relevant laws in Nigeria to associate and function as a trade union.
Within an unarguable climate of notable economic constraint, developments at the NICN and in Nigerian labour jurisprudence as a whole, continued at a rapid clip in 2023. From far reaching pronouncements impacting on the world of work, to those reverberating with echoes of international norms per the ILO, the year certainly marks another of positive trends and advancements. Employers will continue to do well to factor in underlying principles including the inviolability of human rights etc., in addition to the cold letter of the law, as they work towards achieving more harmonious and productive workplaces in 2024 and beyond.
Folabi Kuti SAN is a Partner in the law firm of Perchstone & Graeys, LP.