Wednesday 30 December 2020

THIRD ALTERATION TO THE 1999 CFRN: THE GAME CHANGER IN NIGERIAN LABOUR LAW


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 Contractorscase, 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.

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