The National Industrial Court of Nigeria (NICN) held its 2024/2025 Legal Year ceremony yesterday in Abuja. With a retired Justice of Supreme Court, Ejembi Eko as Chairman, I was the guest speaker. Below is a slightly abridged version of my presentation that speaks not only to labour justice and public interest but also the rule of law and the role of Judges in Nigeria.
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I consider it an honour and a privilege to stand before this august gathering as you celebrate the 2024/2025 Legal Year. I expect many of you may be wondering what qualifies me to be here and why a journalist is presenting a paper on labour justice and public interest. Perhaps I should let you in on a secret. I got the invitation for this assignment when I met an energetic man playing ping pong (table tennis) sometime last year. Had I not been introduced to the gentleman before I watched him toss the ball upward with his left hand and strike it fiercely with his right, it would have been difficult for me to believe that he was the Honourable Justice Benedict Kanyip, President of the National Industrial Court of Nigeria (NICN). Even though we exchanged contacts that day, I decided not to dwell too much on the promise because I thought it was one of those spur-of-the-moment decisions people make while in a jolly mood. But early this year, the honourable justice followed up with a call to remind me that I would indeed be the speaker at the 2024/2025 Legal Year ceremony. I cannot thank Justice Kanyip enough for the honour.
Let me also appreciate other Judges of this court. My understanding of the contributions of the NICN to labour jurisprudence in our country has been enriched in recent days. To prepare my paper, I spent considerable time at the Court’s library. And, as it is with most libraries in Nigeria, the environment could be better. But I was fortunate to encounter two dedicated library staff who painstakingly provided me access to relevant materials, including ‘Digest of Labour Cases in Nigeria (1960 to 2012)’ and ‘Digest of Judgements of National Industrial Court (1978 – 2006)’ edited by Oluwole Kehinde with foreword (to both books) written by a former President of this Court, Justice Babatunde Adejumo. These materials, and a few others I browsed through, catalogue hundreds of cases decided by this court to advance the course of justice for workers in Nigeria.
I have been asked to speak on labour justice and public interest. There could not have been a better time to interrogate this topic in Nigeria as both labour and government were recently locked in negotiating an appropriate national minimum wage—the lowest amount of salary that employers of labour, whether in the private or public sector, should earn in the country. After much drama, it is gratifying that the two parties were able to reach a consensus on the issue, despite the fact that the agreed amount cannot even buy a bag of rice in the market.
The situation of workers in Nigeria is further complicated by the fact that those in the informal sector are practically excluded from any form of labour justice. Today, the only avenue for redress for most is to appear on radio programmes. That is how Ahmed Isah, an activist and on-air personality who anchors ‘Brekete Family’ on Human Rights Radio Abuja, has become not only the ‘Ordinary President’ for the vulnerable of our society but also their ‘Chief Justice.’ Such is the flagrant violation of workers’ rights by all levels of government and the private sector that even foreign owned entities operating in Nigeria have been emboldened to treat our people with disrespect. In a clear breach of extant labour laws, many of these companies resort to unwholesome practices that deny their Nigerians workers job security and appropriate benefits. Even where there are statutory compensation provisions for work-related diseases, injuries, disabilities, or death, they are mostly observed in the breach. In several cases, affected workers or their next of kin receive little or no compensation for death or permanent injuries, including when they occurred while carrying out assigned duties.
The concept of Labour justice and public interest are interwoven. Any initiative that engenders fair treatment in the workplace impacts positively on societal wellbeing. Indeed, the United Nations (UN) has on many occasions highlighted the importance of access to justice which essentially means the right to have one’s cause heard before an impartial arbiter. The international reference point for the concept of labour justice, as we are all aware, is the International Labour Organization (ILO) which, in several instruments, enshrines the right of workers to access justice without encumbrance. This includes access to courts and other formal dispute resolution mechanisms in pursuit of effective remedy.
The parameters in any given jurisdiction to measure labour justice include fair wages, which indicates that workers are to be compensated by their employers in a manner commensurate with their output; safe working conditions that guarantee protection from foreseeable danger and defence of their inalienable right to organize protests and negotiate collectively. There are of course several others, including not being discriminated against on the basis of religion, race, gender, age etc. If these parameters encompass the principles and practices that ensure fair treatment and protection of workers in their employment context, it goes without saying that the aim of labour justice is to address power imbalances between employers and workers, and to promote the dignity of labour.
Unfortunately, despite a plethora of legislation and the fact that Nigeria is a signatory to numerous conventions that should guarantee access to justice for workers, the reality is quite different. This can be glimpsed from the way key aspects of labour justice are resolved in our country. Not necessarily to the satisfaction of workers. These include freedom from discrimination, the ability to engage in collective bargaining, modalities for addressing unfair dismissal, among others. This then brings me to the issue of specialized labour court which the NICN represents in Nigeria.
The evolution of industrial courts can be traced to 1806 in France, 1869 in Germany and 1919 in the United Kingdom. But it was not until 1976 that authorities in our country signed on to the idea with the NICN. Established to address labour justice in all its ramifications, the court became functional in 1978. In the early years, the NICN faced several challenges that affected its effectiveness and efficiency. But even when operational, the court provided no reprieve for aggrieved workers for decades as its judgments were unenforceable due to the lack of laws and procedures required of a Superior Court of record.
The problem started with the Supreme Court decision in the case between the National Union of Electricity Employers (N.U.E.E.) and Bureau of Public Enterprises (BPE). The apex court held that, despite the provisions of Decree 47, the NICN had neither exclusive nor coordinate jurisdiction with state high courts. The fact that the court was powerless for about 28 years of its operation was acknowledged on 5th May 2003 by the then NICN President, Justice Adejumo in a scathing remark. This was the way he put it: “The NICN remained practically moribund. The court sat only in Lagos for those years. It was clearly unknown and its decisions and pronouncements hardly respected.”
The constitutional amendment of 2011 assented to by President Goodluck Jonathan changed the narrative by altering sections 6 and 254 of the 1999 Constitution and including the NICN as a Superior Court of record with coordinate jurisdiction with High Courts. The amendment also expanded the jurisdiction of the court to handle human right cases emanating from the workplace. The court is also saddled with jurisdiction to resolve disputes between the Nigeria Labour Congress (NLC), Trade Union Congress (TUC) and government.
Before I continue with the issue of labour justice and public interest, let me make a general point about justice administration in Nigeria. It is important because the extent of justice available to workers in any given society is a function of the extent of rule of law available in that society. It is doubtful that citizens as workers can expect a higher degree of labour justice than what is available within the larger society. In her speech at the special session of the Supreme Court commemorating its new Legal Year and the induction of the latest set of Senior Advocates of Nigeria (SANs) on 30 September 2024, the Chief Justice of Nigeria, Honourable Justice Kudirat Kekere-Ekun emphasised that obedience to court orders will, under her watch, be “non-negotiable”. And that “No individual or institution, irrespective of their standing, will be permitted to treat the judgments of our courts with levity or disregard”.
This, indeed, is as it should be in a society governed by ‘rule of law’. But ‘rule of law’ is not the same as ‘rule of judges.’ According to worldjusticeproject.org, “The rule of law is a durable system of laws, institutions, norms and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice”. In contrast, ‘rule of judges’ denotes impunity towards the law by the very persons who ordinarily are invested with the functions and responsibilities of upholding ‘rule of law’. It is a situation in which a judge places himself/herself above the law or makes himself/herself the law rather than a servant of the law or shepherd of the ‘rule of law’. Regrettably, the loud and overpowering noise of the latter is becoming definitive of Nigeria’s judiciary in the perception of most people. Nothing gives better expression to that than the statement, “Go to Court” by conscious wrong-doers, often followed by “Go on appeal” by their hand-in-glove judges!
Aside the indiscipline of conflicting judgements, there is also the disgraceful issue of courts of coordinate jurisdiction nullifying one another since forum shopping has been institutionalised in Nigeria. In recent days, we have seen how the judiciary has been dragged into the power struggle between the godfather and his godson in Rivers State. If there is anything to take from what transpired before last Saturday’s local government election in the state, it is the willingness on the part of an alarmingly increasing number of judicial personnel to accept and play the role of hitmen for influential political actors as against serving the interest of the country and the public good. That should also be of serious concern to Justice Kekere-Ekun.
I still cannot fathom how any self-respecting Judge would grant an injunction, using subterfuge to restrain the police from performing their primary responsibility of restoring law and order during an election process. Unfortunately, it is such contrived court orders that the police are ever eager to obey most often against the public interest. (NOTE: After my presentation yesterday, Mr Nnamonso Ekanem, SAN, said I was wrong on the case of Rivers State, and that the Federal High Court Judge did not restrain the police. He asked me to go and read the Certified True Copy of the judgement. Ekanem was immediately countered by another SAN, Jibrin Samuel Okutepa, who said the Judge indeed restrained the Police in what he described as an affront on the law. Okutepa (who later sent me the CTC of the 45-page judgement) was unsparing of the antics of some judicial officers in the country. Interestingly, shortly before I left the court, a respected retired Jurist whispered to me that my position is indeed unassailable. The Judge not only restrained the police from carrying out their constitutional responsibility, according to the eminent jurist, but he also prevented the Independent National Electoral Commission from providing a voters register that would have aided the conduct of a credible local government election in the state).
Meanwhile, at the rate some Judges are going; they will soon be granting injunctions to spouses who seek to restrain their partners from performing matrimonial duties in ‘The Other Room’. Now that prominent politicians are openly describing judgments emanating from our courts as ‘Kangaroo judgement’, it is incumbent on the National Judicial Commission (NJC) to step in and deal with blatant deviant behaviour among its members. But let’s come back to the issue of labour justice and public interest.
The NICN may have been envisioned as a specialized superior court of record with the aim of having its divisions everywhere in Nigeria, but this vision, in my view, is yet to be achieved.From its website, the NICN currently has twenty-eight (28) divisions outside the Abuja division. This means that eight states are left without any division of the NICN. Regrettably, that includes my state, Kwara, where the presence of the court is no more than a Registry located at 13A Offa Road, Ilorin. This lack of national spread not only raises the issue of awareness and accessibility but also limits the court’s ability to serve all segments of the population effectively.
There is another issue that relates to a crisis of mission, though not of its own making. In creating the NICN in the mid-seventies, the military government at the period envisioned sustainable rapid industrialization of Nigeria which they reasonably believed would make industrial disputes inevitable. For instance, between 1975 and 1985, Nigeria experienced significant industrial growth driven by the oil boom and government-led initiatives aimed at diversifying the economy. This period saw the establishment and expansion of various manufacturing companies across different sectors, including food and beverage, textiles, cement, pharmaceuticals, and more.Unfortunately, that sector is now almost comatose.
I began from the premise that the NICN has done quite a bit to advance labour jurisprudence in Nigeria based on my rudimentary research. But, as attested to by Justice Adejumo, the work of the Court is not known to most Nigerians. Even lawyers are not particularly conversant with it, according to some legal experts. In his book, ‘Rocheba’s Labour Law Manual (with International Conventions of Occupational Health and Safety)’, Enobong Etteh who has edited several Nigeria Labour Law Reports alluded to this. “A good number of the lawyers that appear before the court (NICN) do not appreciate the law and practice of the court. And consequently, they carry on as if what obtains in the regular courts necessarily obtains in the NICN,” Etteh wrote. “This is far from being so as the NICN is a specialised court permitted to regulate its procedures and proceedings as it thinks fit, and is not bound by any rules of evidence, although it may inform itself on any matter in such manner as it thinks just.”
However, the biggest challenge to labour justice has come from the regular courts. Between 2010 and 2024, the NICN has had a number of its decisions overturned, particularly by the Court of Appeal and the Supreme Court. These reversals often stemmed from jurisdictional challenges, misinterpretation of labour laws, and procedural issues. I will highlight three of such notable cases and what they mean for labour justice in Nigeria. The first is the case between Skye Bank Plc (now Polaris Bank) and Victor Iwu. The NICN had ruled in favour of the claimant regarding wrongful termination of appointment. But the Supreme Court overturned the NICN decision and clarified that the Court of Appeal has the jurisdiction to hear all civil matters from the NICN, not just those related to fundamental rights.
Considering that there were already two conflicting judgements of the Court of Appeal regarding appealability of the NICN on the issue under reference, this ruling overturned the prevailing belief that decisions of the court were final except in cases involving human rights or criminal matters, thus opening the door for more NICN decisions to be appealed. There are implications for this decision. I know that this may not sound well to lawyers but I am of the view that the NICN should have both original jurisdiction and final say on some issues pertaining to workers. Especially those relating to compensation for injury or disease and wrongful dismissal. Allowing all cases instituted at the NICN to be subject to appeal may not bode well in a country like ours. While it is conceded that the right of appeal may encourage NICN judges to be careful about their decisions in cases before them, some unscrupulous employers could use the right of appeal as a punitive measure or a delay tactic.
The second case is that between Chevron Nigeria Ltd and Mr. Titus Oyegun. While the NICN ruled in favour of the employee in a wrongful termination claim, the Court of Appeal overturned the decision, arguing that the NICN overstepped its jurisdiction by addressing certain contractual matters that should have been handled by the High Court. I am of the opinion that the decision of the Court of Appeal upturning the decision of the NICN should be tested at the Supreme Court. I do not believe it is in the interest of labour justice to exclude contractual matters from the jurisdiction of the industrial court.
In the third case between Arik Air Ltd and Mr Gabriel Igbinigie, theNICN had ordered the reinstatement of the claimant and awarded compensation. The Court of Appeal overturned the decision on grounds that the NICN exceeded its jurisdiction by ordering reinstatement. This was based on the time hallowed labour principle that you cannot force a willing employee on an unwilling employer. I understand the point the appellate court is trying to make but I still do not believe the ruling will serve the end of labour justice. In such circumstances, I would prefer punitive damages and compensation for aggrieved workers as a deterrent to arbitrariness on the part of employers.
The next point I want to make may sound a little bit heavy but there is a perception among some stakeholders that the judges of the NICN tend to be biased, especially in favour of the government. That is understandable since the jurisdiction conferred on the NICN dictates that a good percentage of its cases will involve government as employers of labour. The challenge is that a labour court considered biased may be unhelpful to workers. I must, of course, state here that the allegation of being pro-government cannot be sustained by any credible evidence.
When the federal government secured an injunction restraining the Nigeria Labour Congress (NLC) from proceeding with its proposed nationwide strike last year, the Congress accused the court of a “continuous weaponisation of the instrument of Exparte injunction in favour of government.” According to the NLC President, Joe Ajaero, “that is against the interests of Nigerian workers.” However, it should be noted that in several instances, the government has also attacked the judgments of the court. I remember the former Governor of Kaduna State, Mallam Nasir El-Rufai saying that one of the biggest mistakes Nigeria made was to establish the NICN, citing instances when judgements were entered against the government in favour of workers. So, if neither the government nor the NLC appear comfortable with the NICN, then the court must be doing something right. However, while the perception of being pro-government may be baseless, it can undermine public confidence in the court’s impartiality and fairness.
Let me now come to the issue of jurisdiction. As the ILO has succinctly put it in their publication, ‘Overview of procedural for access to labour justice in judicial dispute resolution institutions’, access to labour justice should not only be viewed from the perspective of labour courts and the right to have a claim examined by an impartial judge. It should also encompass access to a fair procedural regulation which enables real conditions of equality before recuring to the judiciary. The emerging regime in labour justice globally is ensuring effective labour dispute prevention and resolution, in law and practice. That’s because the notion of access to labour justice, according to the ILO, “encompasses judicial and non-judicial mechanisms and institutions dealing with the prevention and resolution of individual and collective labour disputes.”
Here, I must commend the establishment of the Alternative Dispute Resolution (ADR) Centre of the NICN to resolve certain labour related disputes using the process of mediation and/or conciliation. Since an effective labour justice system accommodates other active players, the exclusive jurisdiction of the NICN as guaranteed by the Industrial Act and Constitution may be unhelpful. Exclusive jurisdiction doesn’t, in my view, enhance access to justice for workers. For instance, the history of the labour court in England shows how refusal by the major labour unions to appear before it ultimately led to the labour court ceding the majority of its powers to administrative tribunals.
Meanwhile, I find it disturbing that in conversations about labour justice in Nigeria, there is hardly any thought given to the informal sector. Yet, as of the first quarter of 2023, according to the National Bureau of Statistics (NBS) ‘Nigeria Labour Force Survey’, 92.6 per cent of workers in Nigeria were in informal employment. If you exclude agriculture from this sector, going by the survey, we still have 89.4 per cent of our people in informal employment. How can we exclude such a huge percentage of workers from access to justice and social protection and imagine we can develop our society? Take farmers for example. Because of their vocation, they are both employers and employees who feed the nation. Their incapacitation by reason of insecurity and natural disaster has resulted in nationwide shortages of foodstuffs, high cost of food crops and hunger in the land, impacting all Nigerians. Yet, they are excluded from any form of labour justice or social protection.
What the foregoing suggests is that in Nigeria today, labour justice is designed more for the formal sector. We need to redress this anomaly by the instrumentality of law and policies. Can there be a law mandating that at least 75% of the labour justice standard applicable to the formal sector also be made applicable to the informal sector? With that, we can address issues like unwritten contract agreements regarding wages, hours of work, and other indices of labour justice enjoyed by the formal sector. At present, there is no such law. These are some of the issues that should concern the National Assembly whose members seem obsessed with where and how Mr Bobrisky was sleeping when serving his jail term.
I am also aware of the principles of the Common Law of Contract that make some oral contractual agreements enforceable. So, may I ask: Will this court or any tribunal for that matter adjudicate on the hypothetical case of an office clerk whose employer refuses to pay him the meagre amount orally agreed by both parties, and then lays him off after working for 13 months? Will our court not be technically rigid by asking for a document evidencing labour agreement?
To enthrone labour justice, there is need for effective enforcement of labour laws. But it is important to also note that labour laws in Nigeria are complex and with outdated provisions that make their interpretation and application challenging. This complexity has often led to unpredictable judgments and uncertainty in labour relations and justice. There is therefore an urgent need to align these laws with current realities and international labour standards.
As I take my seat, let me briefly speak to the issue of compensation for injury or disease contracted at the workplace. Based on the duty of care to which workers are owed by their employers, the Employee Compensation Act of 2010 provides comprehensive compensation to those who sustain injury from accidents at the workplace. There is a brilliant disquisition of the Act by Mr Ajibola Olaosebikan, a lawyer. “Despite the existence of robust legal frameworks, several challenges persist in the realm of employee compensation in Nigeria. Enforcement of labor laws can be inconsistent, especially in smaller enterprises or informal sectors where oversight is limited” he wroteafter reviewing all the provisions in the Act. “This inconsistency sometimes leads to exploitation and unfair practices, such as inadequate wages or denial of benefits.”
Many countries have devised creative ways by which workers in the informal sector can access justice, especially when in distress and there is no reason why we should not learn from them. In Canada, for instance, they have the Workplace Safety and Insurance Board (WSIB), an independent trust agency operating under the Ministry of Labour for small businesses that employ staff like nannies, babysitters, gardeners, bar attendants etc. Regulated by the Workplace Safety and Insurance Act (WSIA), it is a collective liability insurance to which employers subscribe. It provides compensation to employees in the event of a workplace accident.
Finally, we must understand that public interest is served when workers are not only fairly treated but also economically empowered. But in a society where there is weak enforcement of labour laws to protect workers, it is easy for employers to evade legal responsibilities. That’s why and how most of the banks and oil sector companies now deploy graduates as casuals who are paid peanuts and deprived of the opportunity to become mainstream workers.
This is an issue that should be addressed by relevant stakeholders.
What the government, at all levels in Nigeria, must understand is that a system that ensures labour justice also fosters cohesion as addressing grievances in the workplace can prevent social unrest and promote harmony. To the extent that public interest is tied to ensuring a humane interpretation of socio-economic rights, relevant authorities must ensure that workers’ rights are respected, fair wages are paid, and safe working conditions provided. All of these are geared towards balancing the rights of workers with the economic and social well-being of society as a whole. Prioritizing labour justice, therefore, is a public interest imperative.
Credit: Olusegun Adeniyi