1. INTRODUCTION
It appears that many lawyers in
Nigeria are yet to come to terms with
the new reality of the game changing
status of the Third Alteration to the 1999 Constitution of the Federal Republic
of Nigeria (CRFN(as amended)). The aim of this article therefore, is to demonstrate
to such lawyers, how the Third Alteration to 1999 CFRN has displaced hitherto
established common law principles applicable to labour law in Nigeria.
The article will use the cases of
SAHARA ENERGY RESOURCES LIMITED v. MRS
OLAWUNMI OYEBOLA (2020) LPELR-51806(CA) leading judgement
delivered by UGOCHUKWU ANTHONY OGAKWU, JCA on 3rd December, 2020 and AERO
CONTRACTORS CO. OF NIGERIA LIMITED V. NATIONAL ASSOCIATION OF AIRCRAFTS PILOTS
AND ENGINEERS (NAAPE) & ORS (unreported)
Suit No. NICN/LA/120/2013, judgement delivered by HON. JUSTICE B. B. KANYIP on
February 4, 2014 to lucidly demonstrate how the Third Alteration has changed
the game.
2. SAHARA
ENERGY RESOURCES LIMITED v. MRS OLAWUNMI OYEBOLA
In Sahara’s case one of the
issues for determination was whether the National Industrial Court (NIC)
correctly assessed the quantum of damages by awarding two years’ salary as
damages and compensation for the unlawful dismissal of the respondent. Ogakwu
JCA at pp29-30 and pp35-36 had this to say on the issue of quantum of damages:
“By all odds, the law has become
ensconced that in employment relationships without statutory flavour, where
there has been wrongful/unlawful termination or dismissal, the measure of
damages is payment of what the employee would have earned over the period of notice. The Appellant
has referred to
some of the authorities in this regard. But as
ensconced as the legal position may have become, has it become like the Rock of
Gibraltar which cannot be moved? While the doctrine of stare
decisis or binding
judicial precedent enjoins
the courts to
follow the decisions of
superior courts, it
has to be
remembered that what
the earlier decisions establish
is only a principle, not a rule. Rules operate in an all or nothing dimension.
Principles do not. Principles merely incline decisions one way or the other.
They form a principium or a starting point. Where one ultimately lands from
that starting point will largely depend on the peculiar facts and circumstances
of the case in hand: FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558 at
650. It is in this wise that it becomes necessary to interrogate whether, in
the light of the Third Alteration to the 1999 Constitution, wherein the
National Industrial Court was fully structured into the Nigerian Judiciary as a
superior court of record and a new labour jurisprudence emanated; the principle
established in the cases prior to the said Third Alteration on the measure or
quantum of damages to be awarded in cases of wrongful/unlawful termination or
dismissal still remains the regnant law in
the diacritical circumstances, or
whether indeed a
new legal regime
that demands a departure from the principle as it existed has been
introduced in our corpus juris in employment and labour related litigations.”
“…in circumstances where
the employee is
unlawfully dismissed, it
should attract substantial
damages, where claimed, in line with international best practices and not based
on the hitherto
existing principles that
pre-date the advent
of the innovative provisions of
the Third Alteration to the 1999 Constitution. Section 254C (1) (f) and (h) and
(2) of the 1999 Constitution empowers the lower
court to apply
international best practices
in labour, and
conventions, treaties, recommendations and protocols ratified by
Nigeria. The High Courts were not so empowered in exercise of jurisdiction in
labour matters which culminated in the principle of the superior courts on the
measure of damages… the innovative provisions necessarily demand a rethink of
the principle in the light of changed
circumstances in law.
Accordingly, I will
be deferential to
the general damages awarded
by the lower
court in exercise
of its jurisdiction
to apply international best
practices… I therefore uphold the award
by the lower
court of the
equivalent of two years’
salary as general damages
for the unlawful
dismissal of the
Respondent”
3. AERO CONTRACTORS CO. OF NIGERIA LIMITED
V. NATIONAL ASSOCIATION OF AIRCRAFTS PILOTS AND ENGINEERS (NAAPE) & ORS
In Aero Contractors’
case, Kanyip J. in deciding on the
issue of the applicability of ILO Conventions and treaties which Nigeria
has ratified but not yet domesticated held at pp13-15 thus:
“…I need resolve an issue raised
by the claimant as to the application of ILO Conventions and jurisprudence in
this Court. The defendants, making submissions in that regard, had called on
this Court to take cognisance of the relevant ILO Conventions 87 and 98 and
their accompanying jurisprudence. In its reply on points of law, therefore, the
claimant submitted that this Court cannot apply the said ILO Conventions and
jurisprudence to this case. To the claimant, Nigeria may be a signatory to ILO
Conventions, the law in Nigeria on the applicability of international treaties
is that such treaties cannot have the force of law unless they have been
enacted into law by the National Assembly, citing Nnaji v. NFA [2010] 11 NWLR (Pt. 1206) 438 at 454 H – A and Abacha v. Fawehinmi [2000] 6 NWLR (Pt.
660) 228 at 247.
I must first of all state that
the causes of action in Nnaji v. NFA
and Abacha v. Fawehinmi all arose
before the coming into effect of the Third Alteration to the 1999 Constitution.
So the cases do not cover the issues raised by the Third Alteration to the 1999
Constitution. It is section 12 of the 1999 Constitution, as amended, dealing
with implementation of treaties that Nnaji
v. NFA and Abacha v. Fawehinmi
interpreted and applied. The said section 12 provides –
(1) 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.
(2) The National Assembly
may make laws for the Federation or any part thereof with respect to matters
not included in the Exclusive Legislative List for the purpose of implementing
a treaty.
(3) A bill for an Act of
the National Assembly passed pursuant to the provisions of subsection (2) of
this section shall not be presented to the President for assent, and shall not
be enacted unless it is ratified by a majority of all the Houses of Assembly in
the Federation.
The thing with section 12 of the
1999 Constitution, as amended, is that a treaty as such shall not have the
force of law in Nigeria unless such treaty has been enacted into law by the
National Assembly and that law has been ratified by a majority of all Houses of
Assembly in the country.
Now section 254C of the 1999 Constitution, as inserted by
the Constitution (Third Alteration) Act 2010, deals with the jurisdiction of
this Court. Its relevant provisions for present purposes are subsections (1)(f)
and (h), and (2), which provide as follows –
(1) Notwithstanding the provisions of sections 251, 257, 272 and anything
contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the
National Assembly, the National Industrial Court shall have and exercise
jurisdiction to the exclusion of any other court in civil causes and matters:–
(f) relating to or connected with unfair labour practice or international
best practices in labour, employment and
industrial relation matters;
(h) relating to, connected with or pertaining to the application or
interpretation of international labour standards;
(2) 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 to labour,
employment, workplace, industrial relations or matters connected therewith.
There are two ways of approaching
the issue at hand. The first is the question whether the Constitution (Third Alteration) Act 2010, which inserted section
254C(1)(f) and (h) and especially (2) is not the domestication demanded by 12
of the 1999 Constitution itself. I think it is. The Constitution (Third
Alteration) Act 2010 amended the 1999 Constitution. Before it was passed and
assented to by the Preisident 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. This effectively
means that the requirements of section 12 of the 1999 Constitution were and
have been met when section 254C(1)(f) and (h) and (2) was enacted as per the
Constitution (Third Alteration) Act 2010.
Even if the first approach were not to be the case, the second approach
at treating the issue is that both subsections (1) and (2) of section 254C of
the 1999 Constitution, as amended, commence with the word “Notwithstanding”. In
subsection (1) it is “Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution…”
and in subsection (2), it is “Notwithstanding anything to the contrary in this
Constitution….” Section 12 qualifies as both “anything contained in this
Constitution” in subsection (1) and “anything to the contrary in this
Constitution” of subsection (2). The use of the word
‘notwithstanding’ in any statutory instrument has been judicially considered by
the Supreme Court. In Peter Obi v. INEC
& ors [2007] 11 NWLR (Pt. 1046) 565 at 636 – 634 per Aderemi, JSC, the
Supreme Court cited NDIC v. Okem Ltd and anor [2004] 10 NWLR (Pt. 880) 107 at 182/182 with
approval where it held as follows –
When the term “notwithstanding” is used in a section of a statute it is
meant to exclude an impinging or impending effect of any other provision of the
statute or other subordinate legislation so that the said section may fulfill
itself.
In like manner the use of the
word ‘notwithstanding’ in section 254C(1)(f)
and (h) and (2) of the 1999 Constitution, as amended, is meant to exclude the
impending effect of section 12 or any other section of the 1999 Constitution. It follows that as used in section 254C(1)(f) and (h) and (2) of the
1999 Constitution, as amended, no provision of the Constitution shall be
capable of undermining the said section 254C(1)(f) and (h) and (2); and I so find and hold.
So, whichever of the two approaches is adopted (or even if both
approaches are adopted), I have no hesitation whatsoever in finding and holding
that this Court has the jurisdiction and power to apply “any international
convention, treaty or protocol of which Nigeria has ratified”; and ILO
Conventions 87 and 98 and the ILO jurisprudence that goes with them can be so
applied in view of their ratification by Nigeria.”
4.
CONCLUSION
From the above it is crystal
clear that the Third Alteration to the 1999 Constitution is a huge game changer
when it comes to labour issues in Nigeria. The hitherto entrenched common law
position in labour jurisprudence may no longer be applicable in Nigeria most
especially because of the Third Alteration to the 1999 Constitution and
sections 7(6), 12, 13, 14 and 15 of the National Industrial Court Act, 2006.
The Court of Appeal in Sahara’s
case applied international best practices to uphold the quantum of damages
awarded by the NIC. It is therefore not out of place to conclude that the Court
of Appeal will also uphold the decision in BELLO
IBRAHIM v. ECOBANK PLC (unreported) Suit No. NICN/ABJ/144/2018 judgement
delivered December 17, 2019, where the NIC also applied international best
practices and ILO conventions to hold that an employer of labour cannot fire at
will without giving reasons. Kado J, noted in Bello’s case thus:
"The law, for long, has been
that an employer needs not give reason to terminate a contract of employment;
he only needs
to comply with
the terms and
conditions of employment. Employers are at liberty to
terminate for good, bad reason or no reason at all. This general trite position
of the common law rule is however considered not be in tune with modern day
global labour law best practices… From the evidence and circumstances of this
case, there was nothing to cast doubt on the claimant's capacity in terms of
performance of his job. To my mind, in view of Article 4 of convention No. 158
of ILO and recommendation 166 of the said convention, it will not be fair to
terminate contract of employment for no reason whether good or bad"
In view of the Court of Appeal’s
decision in Sahara’s case, it appears that it may not be right to contend, as
one of my learned friends did, that “Until
the Superior courts pronounce on this judgement (in Bello Ibrahim v. Ecobank
Plc), anyone who carries the judgement to town to celebrate is standing on a
banana peel with the tendency to slip any moment”.
It is interesting to note that
although the author of the article: “Bello v. Ecobank: A New Sherriff is in Town,” hailed the judgement in Bello’s
case as a landmark, “which turned the tides and completely changed the tenure
of determining employments at will, or servant holding an office at pleasure,
or master servant relationship type of employments in Nigeria”, the real landmark is the decision of the NIC
delivered over a decade ago in PENGASSAN v. SCHLUMBERGER ANADRILL NIGERIA LIMITED [2008] 11 Nigeria Labour Law Reports (NLLR)
(Pt. 29) 164, that, irrespective of the employer’s right to hire and fire
for any or no reason, it is no longer globally fashionable in industrial
relations law and practice to terminate an employment relationship without
adducing any valid reason for such a termination.
