But rather unfortunately, the country missed the opportunity provided by that exercise constitutionally to streamline the jurisdiction of the various courts. The decision of the apex court, the Supreme Court of Nigeria in NUEE v BPE delivered on the 25th of February 2010 which held mainly that it is unconstitutional for any statute other than the Constitution to confer exclusive jurisdiction on resolution of trade disputes on the National Industrial Court has brought to the fore again the need, indeed the urgency, to deal with the jurisdiction of the National Industrial Court once and for all. It is against this background that one attempts to address the issue of the jurisdictional confusion militating against the proper functioning of the National Industrial Court. It is sincerely hoped that the National Assembly would find the time to reflect on the issues raised here.
A Brief History of the National Industrial Court
It is perhaps fitting to begin with a brief history of the court. The court was established in 1976 to deal with trade disputes and help create a sustainable basis for industrial harmony. This rationale can hardly be faulted. There is now a global recognition of the fact that regular courts being too acculturated in strict legalism are not suited to adjudicate industrial disputes many of which by nature are interest-based, and for that reason require some elements of conciliation, arbitration and flexibility. In short what many jurisdictions have done in the words of Sir John White is to set up labour courts that are ‘courts of law industrially informed’. There can indeed be nothing more tragic than having with due respect industrially uninformed judges pretending to resolve trade disputes. But that is the situation that the 1999 Constitution has thrown industrial relations in Nigeria.
But before we examine the defects of the Constitution in relation to the National Industrial Court (NIC), let us complete the legal history of the court. The Trade Disputes Act, Cap 432, Laws of the Federation of Nigeria, 1990 that creates the Court gives it the following jurisdiction:
– section 15 of the Act confers on the court original jurisdiction to entertain application seeking the interpretation of the provisions of a collective agreement. For the avoidance of doubt, a collective agreement is defined by section 47 of the Act as any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between an employer or a group of employers and a trade union or trade unions.
– Section 24 of the Trade Disputes Act provides that a right of appeal shall lie to the court from the award of the Industrial Arbitration Panel (IAP) in cases of intra-union disputes arising from the organisation and running of a trade union as laid down in the union constitution or inter-union trade disputes arising from the restructuring of trade unions established under the Trade Unions Act.
– The NIC also has exclusive jurisdiction by virtue of section 20 of the Act to make awards for the purpose of settling trade disputes and to determine, among other things, questions as to the interpretation of the terms of settlement of any trade dispute as recorded in a any memorandum during or after the process of conciliation.
– In 1992, the jurisdiction of the court and its status were altered. The trade Disputes (Amendment) Decree No. 47 of 1992 expanded the jurisdiction of the court to include intra and inter-union disputes. Specifically, the Decree now deemed to be an Act of the National Assembly by virtue of section 315 of the Constitution provides that that no person shall commence an action, the subject matter of a trade dispute or any inter or intra union dispute in a court of law. In other words, the jurisdiction of the regular courts to handle matters listed by the Decree was ousted. The Act also confers on the court the status of a superior court of record.
– In 2006, the National Assembly having been persuaded that the National Industrial Court is desirable in the industrial relations sphere, passed the National Industrial Court Act of that year. The Act in its section 7 confers exclusive jurisdiction on the court on a wide ranging number of labour issues[3]. The Court is also made a superior court of record. Now although, the BPE decision construed the Trade Disputes Amendment Act of 1992, there is little doubt that the principle of that decision is so extensive as to have a destructive implication for the 2006 Act as well.
Constitutional Listing of the NIC Imperative
The question now is: what is the way forward? The legislature must intervene to restore the desirable exclusive jurisdiction of the NIC in labour matters. The advantage of that is that disputes can be resolved without the excessive legalism of the regular courts. Also, litigants would be more at home with judges whom they know are quite familiar with industrial practice and whom they can trust for that reason. The way to proceed is for the legislature to list in the Constitution the NIC as a court of superior record in order to prevent its processes and decisions from being subject to judicial review and the almost interminable appeals in regular appellate courts that that entails. By the same token, a detailed provision on the court’s jurisdiction should also be inserted in the Constitution. In addition, the Constitution should also permit the Court and the Court of Appeal in all cases to grant leave to appeal and not just when questions of fundamental rights are involved. This would balance the flexibility required by not making all matters in a labour dispute appealable except in the discretion of the NIC and the Court of Appeal and the need to test the decision of the NIC so it can swim in the same judicial stream with the other courts.
Alternatively, the South African approach can be adopted. In that jurisdiction the Constitution reticently provides for courts without listing all the types of courts and their jurisdiction. The power is reserved, rightly in our opinion, in the legislature to set up new courts and define their status and jurisdiction. That approach may commend itself to those who believe that a constitution should make some allowance for flexibility. Whatever may be the case, the time has come for the jurisdictional confusion with regard to the NIC to be removed.
Aturu, a lawyer wrote this piece from Lagos.
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