Industrial disputes are bound to occur between employees and employers, the problem which then arises is the settlement of such disputes. Failure of settlement efforts often aggravates the disputes resulting in strikes which sometimes further degenerate into chaos and anarchy. When this happens, it does so at the expense of the socio-economic stability of the nation. One of the best, if not the best way of settling these disputes is the option of settlement through the court system. In Nigeria, the National Industrial Court was established to adjudicate on disputes emanating from industrial relations/labour market and ensure that there is a solution to them. The major advantage of judicial settlement is that it is final and guarantees peaceful industrial relationship and promotes industrial growth. This paper discusses: industrial disputes and their effects on the economy and security of a nation and specifically discusses the National Industrial Court as a veritable tool for enhancing the Nigerian industrial dispute system. The paper also discusses the pitfalls in the National Industrial Court Act 2006 and makes recommendations for the improvement of the Act to facilitate the achievement of the noble objectives for which the National Industrial Court was established.
Industrial Disputes And Their Resolution:
Trade disputes generally centre on labour market, price level and government monetary/fiscal decisions. Others include union organisation and security, work rules, safety, and job security disputes. They also include disputes on pension, discrimination on grounds of sex and health such as HIV status etc.
Unions through collective bargaining seek to resolve these disputes in favour of their members. When this fail, as it often does in Nigeria they resort to strikes. Strikes in themselves have deadly effects among which are:
They pose a threat to the macro-economy in free market economies such as Nigeria's
During strikes there is always reduction in supply of goods and services to consumers, thus, causing the consumers to bear the costs as higher prices and lower consumption and government/firm incurs higher costs in carrying out its functions, thus, huge losses are incurred (by consumers, and higher price is charged), that is, millions of naira are lost each day of the strike.
Social ills such as: armed robbery, stealing, smoking of hard drugs etc. are experienced during the period of strike in the nation as idle workers and students seek to keep themselves busy. As the saying goes, an idle man is the devils workshop.
Many lives are lost when essential workers like doctors and nurses embark on strike.
People are shot and killed during strikes as was the case in Aba in 1949 during a coal workers strike.
The basic truth is that: As the actions continue the public become more and more irritated and frustrated by the inconveniences and hardships these strikes cause.
Meanwhile government in order to check the labour unions embark on tough measures which only further deepens the crisis. In all this the main culprit is the economy and security of the nation.
There is no gain saying that from history, none of the developed economies have been able to grow without a stable industrial mechanism for settlement of industrial disputes. Moreover, Nigeria is and has always been in dire need of foreign investment. But no reasonable foreign investor would like to invest in an economy where the relationship between the employer and employee is not cordial and peaceful. It is for this reason that the National Industrial Court was created to handle special matters which are connected with the economic growth, industrial relations development, peaceful coexistence between and among labour and employers of labour as well as labour policy formulator i.e. the government.
In the next section the paper looks at the emergence of the National Industrial Court and trace how it has evolved to its present status as a court of superior record in Nigeria.
The Emergence of The National Industrial Court
The National Industrial Court was established in 1976 by Section 19 (1) of the Trade Disputes Decree No.7 of 1976. Section 19(1) of 1976 Act provides that the Court shall have jurisdiction and power as conferred on it by the said Law or any other Act with respect to the settlement of trade disputes, the interpretation of collective agreements and matters connected therewith.
In 1992, the Trade Disputes Act was amended by the Trade Disputes (Amendment) Decree No.47 of 1992. By virtue of Section 5 (a) thereof and the Court became a Superior Court of Record, with the status of a High Court.
In order to raise the status of the Court and to expand its jurisdiction to meet emerging challenges in labour/industrial relations, the National Assembly in the exercise of its statutory duties enacted a new National Industrial Court Act on 14th June, 2006 which was assented to by then President Chief Olusegun Obasanjo, GCFR. The Act therefore, takes its root from the powers derived by the legislators who made it from the Constitution. In view of pitfalls in the legislation which shall be discussed later it should be noted from the onset that the Act is subject to the provisions of the Constitution of the Federal Republic of Nigeria.
The National Industrial Court Act 2006
The National Industrial Court is not one of the courts directly established by section 6(5)(a) of the Constitution. As earlier mentioned: it is a specialised court created by an Act of the National Assembly. The Act states that the court shall be a Superior Court of Record with powers of the High court. The court consists of a president and not less than twelve judges. It provides that the President of the court shall be ranked the same with the Chief Judge of the Federal High Court and the salary payable to the Chief Judge of the High Court shall be payable to the President of the Court and to its judges. The President of the court and the judges are appointed by the President of the Federal Republic of Nigeria on the recommendation of the National Judicial Council Subject to the confirmation of the appointment by the Senate in the case of the president of the Court only. To be qualified for appointment as a judge or President of the Court, a person must have been qualified as a legal practitioner for a period of not less than ten years and must have a considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria. A non-Law graduate of a recognised University of not less than ten years standing with a considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria may also be appointed as a judge but not as the President of the Court.
The Court has jurisdiction to hear labour, trade dispute, employment matters and all other matters relating to trade activities, interpretation of the trade union constitutions and matters related to that.
Section 21 states that the court shall have jurisdiction throughout the federation and Section 24 (3) states cases could be transferred from the state or Federal High Court to the Court and the Court can also transfer cases to those courts. By virtue of Section 16, 17, 18 and 19, the Court has the jurisdiction to hear and make prerogative orders on matters that would come up.
The constitution of the Court is not less than three judges when sitting, however the president of the Court may appoint a single judge of the Court to sit and hear interlocutory applications or a preliminary matter in any proceeding. The Act empowers the President of the Court to create Judicial Divisions for the Court so that the Court may perform its statutory duties of dispensing justice most effectively. In exercise of these powers the Court now has the following Judicial Divisions for the effective performance of its duties: Lagos, Abuja, Enugu, Kano, Jos, Ibadan, Maiduguri and Calabar. The President of the Court has the power to make rules, to effect the provisions of the Act. Pursuant to this the National Industrial Court Rules 2007 were made for the Court to guide lawyers and litigants coming to court.
It is very clear from the above provisions of the Act that the Court has been adequately repositioned to function as an effective tool in Trade dispute resolution in Nigeria. And it is indeed doing well so far.
With the creation of judicial divisions earlier mentioned: justice has no doubt been brought nearer to the people and similarly the risk, stress and expenses incurred by stakeholders seeking redress in the Court has been reduced. The recent appointment and swearing in of more judges for the Court means more panels will be sitting at different locations in the country and again justice has been brought closer to the people.
It is also gladdening to note that building of staff capacity has been embarked on by the Court. In the words of Hon. Justice Adejumo:
"We are building on the staff capacity. We have international sponsors for them to be trained abroad. Reasonable numbers of them have been trained within and outside the country. If you look at where we are coming from, we are not doing badly."
The National Industrial Court Act 2007 is however, not with out its pitfalls and problems and this shall be discussed in the next sub heading.
The Pitfalls of The National Industrial Court Act 2006.
Like every human creation the Act establishing the National Industrial Court has its defects some of which shall now be discussed.
The National Industrial Court As a Superior Court of Record
The provision of the Act that:
"The Court shall be a superior court of record" is unarguably the most well discussed of these defects. It has been rightly noted that this provision of the Act is inconsistent with the provisions of section 6 (5) of the 1999 Constitution of the Federal Republic of Nigeria which lists the superior Courts of record as recognised by the Constitution. This list clearly does not include the National Industrial Court. It has also been held by the Court of Appeal in
Kalango v.
Dokubo and
Attorney General Oyo state v.
NLC cumulatively that,
inter alia, the National Industrial Court is not a superior court of record listed in the 1999 Constitution and a good deal of the provisions of its enabling statute, the Trade Disputes Act 1990, as amended by Decree 47 of 1992, are unconstitutional. It is thus submitted with due respect to the makers of the Act that the provisions of Section 1 (3) of the Act not withstanding: The National Industrial Court is still not a superior court of record. It has thus further, been submitted that the Court should ordinarily be under the supervisory powers of the High Court.
b. The Exclusive Jurisdiction Of The National Industrial Court
Section 7 (1) of the Act states that "
the Court shall exercise exclusive jurisdiction in civil causes and matters" which are listed in subsections (a) to (c).
this again is inconsistent with the clear provisions in respect of powers of the High Court of a state in section 272 of the 1999 Constitution. In
AG Oyo State v.
NLC the Court of Appeal Ibadan Division held that:
"
The conferment of exclusive jurisdiction on the National Industrial Court over trade matters in the Trade Dispute Act is unconstitutional being in conflict with the provisions of Sections 1 (1),(3), 6(6)(b),251,272 and 315 of the Constitution of the Federal Republic of Nigeria,1999. The combined effect of the sections is that the State High Court has concurrent jurisdiction in trade dispute matters with the National Industrial Court or other court established under the Trade Disputes Act" It is thus submitted that the jurisdiction of the National industrial Court is at best concurrent with that of the High Court.
c. Transfer Of Cases Between The National Industrial Court And The High Court
The Act provides that:
"Notwithstanding anything to the contrary in any enactment or law, no cause or matter shall be struck out by the Federal High Court or the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was not brought in the appropriate court in which it ought to have been brought, and the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this subsection be deemed also to include the power to make rules of court for the purposes of this subsection."
The effect of this provision is that when a matter is wrongly brought in the Federal High Court, the High Court of a State or of the Federal Capital Territory it shall not strike it out but must transfer it to the National Industrial Court if it is within the competence of the National Industrial Court. A similar provision in Sections 22 (2) and 22 (3) of the Federal High Court Act on transfer of cases between the Federal High Court and the State High Court have been interpreted by the Supreme Court. In
Aluminium Manufacturing Co. Ltd V.
Nigerian Ports Authority The Supreme Court held that The Federal High Court was right in the instant case to have transferred it to the Lagos State High Court. The court also held
obiter that: the Lagos State High Court Has no power to transfer a case to the Federal High Court. It can only strike out a case it has no power to try.
The position therefore, is that: While the Federal High Court can transfer a case to the State High Court pursuant to Section 22 (2) of The Federal High Court Act the later can not transfer to the former pursuant to Section 22 (3) of the same Act. Rather the State High Court should strike out a case if it has no jurisdiction to try it.
It is therefore, submitted that, Similarly, the State High Court can not transfer a case to the National Industrial Court. The proper thing do is that the State High Court should strike out a matter if it has no jurisdiction to try it. The rationale for this is that Section 24 (3) of the National Industrial Court Act is inapplicable to the State High Courts. Therefore, by the provisions of Section 24(3) of the National Industrial Court Act, the individual State law will have to be examined to determine whether the High Court Law or rules of the State or indeed, any other law of that State confer such powers of transfer on the State High Court Where no such powers are conferred (and there seem to be any so far), The proper procedure is to strikeout the matter.
Recommendations
(a). The most obvious recommendation in view of the foregoing is that the National Industrial Court should be included in the proposed amendment of the 1999 Constitution to make it a superior court of record. Prof. Egerton Uvieghara succinctly put forward the case for the Courts inclusion in the Constitution as follows:
"Yet it is not only desirable but imperative that the court be a superior court of record. This for, at least, three reasons. The first and the most important of these reasons is that not being a superior court of record, the court is subject to the supervisory powers of the High Court. Thus, writs of certiorari, mandamus or even prohibition may issue against the court. Indeed, these orders have been employed to thwart or even stultify the work of the court. It has to be borne in mind that expeditious and effective resolution of Industrial Disputes promotes Industrial Harmony and therefore stability, which in turn ensures rapid economic growth. The nation, rather than individuals stands to benefit.
The second reason is that the court is constituted by, at least, three Judges with a presiding Judge who has the same qualifications and, therefore, status, of a High Court Judge. The third reason has to do with the dignity and standing of the court. It is of extreme importance that the court be accorded and treated with utmost respect if it is to be able to discharge its functions creditably".
Further, reasons are that: labour matters are in the Exclusive Legislative List in Part 1 of the Second Schedule to the 1999 Constitution as Item 34. The National Industrial Court is a Federal Court having jurisdiction throughout Nigeria. It is thus best suited to handle all labour matters.
As a specialized court, the National Industrial Court understands all the nuances in industrial relations/ labour law and practice. As a superior court of record, it will be in the best position to adjudicate on such matters.
Lastly, the Court commands the respect of all the stakeholders and social partners in labour - government, labour and employers. This will be lost if it is appreciated that decisions of the court will be subjected to judicial review.
(b). This paper also humbly recommend that well qualified staff be appointed to assist the judges of the Court as they seek to administer justice. There is no doubt that an efficient work force will help to ease the task of the Court.
(c). The Court does not seem to be well known like the other courts in the country. This much has been admitted by its President. In his words:
"Nigerians do not know much about the Industrial Court, and as a court, it can not go on advertising but we owe it a duty to bring it to the knowledge of the public."
This paper recommends that deliberate efforts should be made to bring the activities of the Court to Nigerians so that they will appreciate the indispensable need for the court as a final arbiter in trade disputes in Nigeria.
Conclusion
Trade disputes will always occur, hence, there is a need for a functional dispute resolution mechanism which is acceptable and just to all disputants. In the absence of such a mechanism there is breakdown of law and order and the macro-economy of the nation suffers and security also breaks down. The National Industrial Court of Nigeria has been put in place to effectively enhance the Nigerian Dispute Resolution Mechanism and it is so far doing fine. A correction of the errors in the Act setting up the Court will further aid its work thereby bringing about the much needed stability of the country's economy.
References
Afolayan, A. F. and Okorie, P.C. (2007):
Modern Civil Procedure Law, Lagos, Dee-Sage Nigeria Limited.
Constitution of the Federal Republic of Nigeria, 1999.
Ekanem, O.T and M.A. Iyoha. (1999):
Microeconomic Theory, Benin city: Mareh Publisher.
Memo presented to the National Assembly by Hon. Justice Adejumo during the aborted attempt to amend the 1999 Constitution during the last Assembly:
http://www.thisdayonline.com/archive/2004/02/15/20040215jud01.html Nigeria: Industrial Court, Necessary for Economic Development, An interview with the President of the Court Hon. Justice Babatunde Adejumo on the 4 th of January, 2008 published in the Vanguard on line:
http://allafrica.com/stories/200801040354.html Nkoro, E., (2005):
Activities of Organized Labour In a Deregulated Economy: a Case Study of Nigerian Economy, http://searchwarp.com/swa20455.htm last accessed May 8, 2007.
The history of the National Industrial Court as posted on the courts website:
http://nic.gov.ng/History.html last accessed on May 9, 2008
Trade Disputes Act, Chapter T8, Volume 15, Laws of the Federation of Nigeria, 2004.
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