ANALYSIS OF THE NATIONAL INDUSTRIAL COURT ACT 2006 UNDER THE NIGERIAN CONSTITUTION

ABSTRACT

The National Industrial Court (hereinafter referred to as the NIC) was established in 1976 by the Trade Disputes Decree No 7 of 1976 with jurisdiction to settle trade disputes, the interpretation of collective agreements and matters connected therewith. There were identifiable lapses in the status, powers and jurisdiction of the NIC that impacted negatively on its operations; the jurisdiction of the Court which was expressed to be exclusive was shared with the Federal and State High Courts, the Court lacked competence to make declarations and orders of injunction and thus seen as an inferior court. This state of affairs gave impetus to the enactment of the National Industrial Court Act 2006 (hereinafter called the NIC Act 2006) which granted the NIC a superior court status, with exclusive civil jurisdiction to deal with labour and other related matters. This NIC Act 2006 generated a lot of controversies in terms of the exclusive jurisdiction and superior court status granted the Court by the Act, in view of the constitutional provisions thereof. Consequently, the Constitution (Third Alteration) Act 2010 was enacted to remedy the situation. The perceived problem that motivated this study is the heated controversy generated by the inadequacies of the NIC Act 2006.The objective of this work is to ascertain whether the Constitution Third Alteration Act 2010 addressed those inadequacies of the NIC Act 2006 and achieved the goal of institutionalizing the NIC as a specialised court for the resolution of labour labour disputes and other related matters, employment, industrial relations, and other related matters. The method employed was to examine the provisions of the NIC Act 2006 and that of the Constitution (Third) Alteration Act 2010. This work found out that though the Constitution (Third) Alteration Act 2010 corrected some of the lapses of the NIC Act 2006 and expanded the jurisdiction of the NIC, there still exist loopholes identified among others to include the inadequate Constitution of the NIC by at least 13 (thirteen) judges and lack of prescription by an Act of the National Assembly for appeals to the Court of Appeal over its decisions. It was recommended among others that the NIC should be constituted of not less than 37 Judges and that the National Assembly should make a prescription for appeals to the Court of Appeal from the decisions of the NIC.

CHAPTER ONE

GENERAL INTRODUCTION

1.1. BACKGROUND TO STUDY

The National Industrial Court, was established in 1976, by virtue of the Trade Disputes Decree No. 7 of 1976 (hereinafter referred to as the TDA) which, Decree was later amended by the Trade Disputes (Amendment) Act 1992. Later, it was included as Cap 432 in the 1990 edition of the laws of the Federation of Nigeria with jurisdiction to settle trade disputes, the interpretation of collective agreements and matters connected therewith.

There were many obvious and identifiable lapses in the status, powers and jurisdiction of the NIC then that impacted negatively on its operations. The first, being the fact that, neither the 1979 nor the 1999 Constitution included the NIC as one of the courts in the country. Granted that section 19(2) of the TDA1990, which was inserted by Decree 47 of 1992 provided that, the NIC shall be a superior court of record. Lawyers and litigants disregarded these provisions by asking the Federal High Court to judicially review decisions reached at the NIC in a number of cases. The second is the referral requirement in commencing proceedings in the NIC which, means that, only the Minister of labour could initiate a case in the court in its original jurisdiction by way of referrals. The President of the NIC was required to preside over all the sittings of the Court. The practical effect of this was that adjudication of cases was totally dependent on the discretion and availability of the President. This means that, whenever, for any reason, the President was unable to sit, even if the Court could form a quorum, the case must be adjourned. The full import of this anomaly was brought to the fore in 2002 when the Court lost its President. For almost a year, the Court could not sit as a successor was not appointed.

There was also the problem of dual procedures for the appointment of the President and other Judges of the Court. The NIC was the only Court then in the country with dual control over the mode of appointment of its judges, the President of Nigeria appoints its President on the recommendation of the Federal Judicial Service Commission while the other members were appointed by the President of Nigeria on the recommendation of the Minister of Labour.

Apart from the foregoing, there was also the problem of the extent and scope of the subject-matter jurisdiction of the NIC. Though, Decree No. 47 of 1992 seemed to have brought within the purview of the NIC inter and intra union disputes, the courts held that, for the NIC to have jurisdiction over inter and intra union disputes, the disputes must qualify as trade disputes.

Case law also created a lot of problems for the NIC in that it was held that the NIC then could not grant declaratory and injunctive reliefs. The implication is that although, the TDA, established the NIC as a superior court, it lacked the essential powers of a superior court as it could not grant declarative or injunctive reliefs. The cumulative effect of the confusion created as to the scope of the jurisdiction of the NIC was that, several courts at the same time had concurrent jurisdiction on the subject matters in which NIC was supposed to have exclusive jurisdiction. This state of affairs resulted in conflicting decisions, absence of clarity and uniformity in the decisions of the various courts on virtually the same issue. This gave rise to a culture of forum shopping by litigants. This totally stalled the ideals for which the NIC was created in the first instance. A good reference point is FGN v Oshiohmole. The case was commenced at the FCT High Court and it was held that the Nigerian Labour Congress has power to call out workers to embark on strike.

On appeal to the Court of Appeal, the Court ruled that the High Court of the Federal Capital Territory lacked the jurisdiction to entertain the matter being one of the matters under item 34 of the Constitution, that is; labour/trade disputes. The Court of Appeal then referred the case to the Federal High Court for determination. The Federal High Court, among others, relying on section 251 of the Constitution held that it lacked jurisdiction to entertain some aspects of the case. It, however, heard the matter on other grounds. With these conflicting decisions, it became clear that, there was a lacuna in the law as to which court, would have jurisdiction over trade disputes under item 34 of the Constitution. It therefore, became imperative for the National Assembly to find solution, to the problem in consonance with section 4(2) of the Constitution. To correct these states of affairs, the National Assembly enacted the NIC Act 2006 as “an Act to provide for the establishment of the National Industrial Court as a superior court of record and for related matters.” It vested the Court with exclusive jurisdiction over all labour related matters. The NIC Act 2006 is divided into six (6) parts, with fifty-five (55) sections.

However, the enactment of the NIC Act 2006 generated a lot of controversies in view of the obvious conflicts in the provisions of the Act with the provisions of the 1999 Constitution. The first conflict was on the superior court of record status granted the NIC by the NIC Act 2006, second was on the exclusive civil jurisdiction granted the court over labour, including trade unions, industrial relations and other related matters, third is the finality in the judgments of the Court which are not subject to appeal to any court unless matters related to fundamental human rights. The greatest of these problems is the one touching on the jurisdiction of the court as granted by the NIC Act 206. It was a recurring issue until the decision of the Supreme Court in The National Union of Electricity Employees and 1 Or v Bureau of Public Enterprises when the Supreme Court finally confirmed that the NIC is a subordinate Court and that it had no exclusive jurisdiction over the matters assigned to it under section 7 of the NIC Act 2006 and other enabling Acts on that behalf.

The Supreme Court held thus:

The least that has changed is that State High Court under section 272 now has power to deal with trade disputes it has previously lacked. It means therefore that Decree No. 47 of 1992 arrogating to the National Industrial Court a superior court of record without due regard to the amendment of the provisions of section 6(3) and (5) of the 1999 Constitution which has listed the only superior Courts of record recognized and known to the 1999 Constitution and the list does not include the National Industrial Court; until the Constitution is amended, it remains a subordinate court to the High court.

This decision dealt a heavy blow on the existence and operation of the National Industrial Court. The decision in effect meant that all the State High Courts, the Federal High Court and the High Court of the FCT shared concurrent jurisdiction with the National Industrial Court on the subject-matters on which it sought to have exclusive jurisdiction. It equally meant that all these courts could review the decisions of the NIC on application by either of the parties. In essence, the basis for the establishment of the court was effectively put on hold for the time, that decision lasted as lawyers and litigants had a field day, employing all the avenues provided by that decision to stall cases.

These conflicts which were impediments to the realization of the set objectives of the NIC Act 2006, necessitated various discourses and calls for solutions to enable the NIC achieve its set objectives. It was in response to those calls that a bill for the amendment of the relevant constitutional provisions was introduced and passed by the National Assembly. President (Dr.) Goodluck Jonathan gave his assent to this passed bill on the 4th day of June 2011, which is now known as the Constitution (Third Alteration) Act 2010. This research will examine that Act, with a view to asserting whether its intention of institutionalizing a specialized court with exclusive civil jurisdiction to expeditiously and judiciously deal with labour matters has been achieved.

1.2 STATEMENT OF THE PROBLEM

The statement of the problem shall bother on the fact that, in spite of the coming into force of the NIC Act 2006, and the Constitution Third Alteration Act 2010, there still exist loopholes in these laws which, if filled, will provide better, fair and just administration of labour matters in Nigeria.

1.3 RESEARCH QUESTION

This research will seek to address the question:
Whether the NIC Act 2006 and the Constitution (Third Alteration) Act 2010 achieved their goals?

1.4 RESEARCH METHODOLOGY

The methodology of research will embrace the qualitative approach with recourse to primary source materials based on relevant statutes, such as, the NIC Act 2006 itself, the 1999 Constitution of the Federal Republic of Nigeria as amended by the Constitution Third Alteration Act 2010. Also, secondary source materials based on Law Reports, Case Laws and the Received English Law made up of the Rules of Common Law and the Principles of Equity and Statutes of General Application which were in force in England as at 1st January 1990 will be used. In addition, Books of Authority, Encyclopedias, Journals and periodicals, Digests, Legal Dictionaries, News papers, Treatise and internet sourced materials will be very helpful.

1.5 OBJECTIVES OF THE STUDY

The set objectives of this research are as follows:

i. To understand how the NIC has developed over the years.

ii. To highlight some of the challenges that faced the NIC which necessitated the enactment of the NIC Act 2006 and appraise whether they were resolved by the Act.

iii. To identify the intention the Constitution Third Alteration Act 2010 and appraise whether the intention was realized.

iv. To identify the overall challenges of the NIC from the provisions of the NIC Act 2006 and the Constitution (Third) Alteration Act 2010 and to make recommendations on how to overcome those challenges.

1.6 SIGNIFICANCE OF THE STUDY

This topic is important in view of the apathy towards the NIC in resolution of labour disputes. Thus the NIC which ordinarily ought to provide comprehensive, conclusive and acceptable platform and mechanisms for the resolution of those labour disputes is not usually approached by the disputants, necessitating a research in order, to proffer probable solutions to remedy the situation.