The National Industrial Court: Regulating Dispute Resolution In Labour Relations In Nigeria

By

Andrew Obinna Onyearu

andrews.solicitors@virgin.net

Trade and industrial disputes generally originate from interaction within an organised labour market.  Government monetary and physical policies also play a significant role in developing this framework.  Union activities, pension issues and employment conditions usually contribute the balance of the framework.  The role that Trade Unions play in negotiating disputes between employers and their members is also a key feature of these relationships.  It is the breakdown in this negotiation process that produces postures which leads to disputes.    Strike actions remain the most easily recognisable form of relationship breakdown in labour law.  The adverse effects of strikes are commonly known.  The loss of productive man hours; attendant difficulties in meeting demand for services within the period; breakdown in communication, law and order as well as major threats to economic development are all known features of strike action. 

Inefficient management of industrial disputes compromises socio-economic stability of countries.  In developed economies therefore, the mechanism for easier resolution of these disputes is often clearly identified.  It is probably to replicate international best practices and create a contemporary dispute resolution mechanism that gave impetus to the establishment, in its previous and current forms, of the National Industrial Court.  Its brief appeared concise – to adjudicate on all issues emanating from industrial relations and labour market breakdown.  As was to transpire, the course to attaining this objective has been a difficult but critically necessary one.

The National Industrial Court was established in 1976.  Section 19(1) of the Trade Dispute Decree No. 7 of 1976 creates the court.  This legislative direction has been reinforced by more specifically tailored legislation, the National Industrial Court Act.  Section 7(1) of the National Industrial Court Act provides that the court shall have an exercise jurisdiction in several courses and matters relating to labour, including trade unions and industrial relations; environment and conditions of work, health, safety and welfare of labour, collective agreement, any circumstances relating to or seeking orders to restrain any personal body from taking part in any strike, lock out or industrial action or any conduct in contemplation or in furtherance of a strike, lockout or any industrial action; any question as to the interpretation of any collective agreement; any award made by an arbitral tribunal in respect of a labour dispute or an organisational dispute; the terms of settlement of any labour dispute, organisational dispute as may be recorded in any memorandum of settlement and any award, or judgement of the court and states that the court has jurisdiction and power to hear cases arising from labour, trade dispute, employment matters and all other matters relating to trade activities.  It is also charged with the responsibility of interpreting trade union contributions.  Its operational mechanics provide that the President of the court may appoint a single judge to sit and determine interlocutory applications or preliminary matters in any other cases before the court but in substantive terms, the sitting panel of judges to hear any of its cases must comprise no less than three including the President.  To engender its growth and spread, the President of the court is also empowered to create judicial relations so that the statutory functions of the court may be administered more effectively.  In consequence of this power, the court now has judicial divisions sitting in Lagos, Abuja, Enugu, Kano, Jos, Ibadan, Maiduguri and Calabar.   To regulate its day to day conduct, the president of the court is also empowered to make rules of court to give effect to the statutory obligations imposed by the various regulating legislation.  In this regard, the National Industrial Court Rules 2007 have been made and these provide guidance for litigants coming to the court.  These major developments, along with others that have been initiated and driven by its current President, Mr Justice Babatunde Adejumo, have seen the court’s institutional development grow in geometric proportions to become, as expected, a specialist court of considerable value and significance in Labour and Employment Law.

To achieve this importance, it has and continues to be confronted by some of the digressional challenges that innovative judicial initiatives customarily suffer.  The much vexed issue about the status of the court as a superior court of record has been the subject of justifiable criticism by the court’s protagonists.  Simply put, their argument is that section 6(5) of the 1999 Constitution provides a complete list of superior courts of records in Nigeria and that the National Industrial Court is not one of the listed courts.  Only an amendment, they contend, to expand the list can correct this defect.  Accordingly, the provisions of both the Trade Disputes Act 1976 (as amended) and crucially, the latter National Industrial Court Act 2006 declaring its superior court status, are incapable of curing this defect.  Indeed, this much was confirmed by the Court of Appeal in the oft-cited decisions Kalango –v- Dokubo (2003) 15 WRN pg 32 and Attorney General, Oyo State –v- National Labour Congress (2003) 8 NWLR pg. 1 in which the courts held that the court is not a superior court of record.  Added to this is also the criticism that the court does not have exclusive jurisdiction in relation to the areas that it covers.  Its exclusive jurisdiction status is, these cases say, affected by the application of section 272 of the 1999 constitution to the extent that its jurisdiction is, at best, concurrent.  In other words, it shares jurisdiction in relation to these matters in both the state and Federal High Courts. 

The issue about its position as a superior court of record should be treated as moot.  There appears, within the judiciary, to be common ground of understanding that the court; its value and benefits as well as its role in labour relations are overwhelmingly desirable and necessary.  Until such time as the constitutional differences are addressed by an appropriate amendment, courts whose intervention is sought in cases that ought to be dealt with by the National Industrial Court can and should enact the spirit of section 24 of the National Industrial Court Act 2006 dealing with transfers to and from State and Federal High court to the National Industrial Court.  Section 24(2) directs that no case which should originate in the National Industrial Court shall be struck out by the court purely for the reason that such a case was started in the Federal High Court or the High Court of a State.  The converse provision is in section 24(3) which provides a similar position in relation to cases wrongly started in the Federal High Court or the State High Court.  Section 24(4) provides that where orders are made in relation to transfers either from or to the National Industrial Court from the Federal or State High Court, those orders shall operate as a stay of proceedings and shall not be the subject of any appeal.  In effect, an ideal way to deal with this situation is that applications for supervisory relief should be determined summarily by upholding the finality of the decisions of the National Industrial Court and establishing regulatory precedents.  In this way, applications whose sole purpose is to undermine the decisions of the National Industrial Court should be met with an endorsement of the specialist role that the court has and will play in the development of labour law jurisprudence in Nigeria. 

The single biggest constraint, even in the justice sector, affecting the work of the court is the limited public awareness of its role.  Government, legal practitioners, employers of labour, trade unions and employees have a narrow and consequently inadequate understanding of the court; its role and working practices.  Without prejudice to its limitations, legislation has clearly defined its role in labour law and relations in Nigeria to the extent that the failure to engage it, especially by practitioners advising clients, should be considered professional negligence.  The necessity to acquire better understanding and functional familiarity of the court’s significance should be such that its better understanding must become of mandatory use in labour related issues. 

The full and greater appreciation of the court’s role must become a matter of urgent priority.  The work of its President, Mr Justice Adejumo has been prodigious and remarkable in forcing increased appreciation of the role of the court.  It is incumbent on those within and outside the legal profession who can be affected by labour issues to complement that work and to strive to increase the awareness of access to the court in an area of law that is clearly specialised and designed to maximise effective dispute resolution in labour relations.