USA Africa Dialogue Series - NIC-What prospects as a superior court of record in Nigeria?

NIC-What prospects as a superior court of record in Nigeria? By KAYODE KETEFE The National Industrial Court was established in 1976 under the Trade Disputes Act which endows it with the jurisdiction in civil cases and matters relating to labour justice in Nigeria. This includes trade union and industrial relations, matters between employers, their organisations, employees and their trade unions/representatives. It also has jurisdiction to hear and determine appeals from decisions of arbitral tribunals. Appeals also lie from the court to the Court of Appeal. One of the biggest controversies relating to NIC has been determining its precise place among other courts in the hierarchy of courts in Nigeria and especially determining whether it is an inferior or superior court of record. This arose from the fact that the court was not listed in both the 1979 and 1999 Constitutions as one of the 'superior courts of records'. The superior courts of record are which those are spelt out under Section 6 of the 1999 Constitution. Originally when TDA 1976 was amended via the promulgation of the Trade Dispute (Amendment) Decree No. 47 of 1992, it was declared a superior court of record with exclusive jurisdiction over trade disputes, inter and intra union disputes. However, this position was not carried forward as the Federal Military Government unfortunately omitted to include the court in Section 6(5) of the 1999 Constitution. Conflicting judicial decisions over the years as to the precise place, powers and jurisdiction have not also helped the matter as the clouds of jurisdictional uncertainty continue to hover over the court. However on February 25, 2011, the Supreme Court of Nigeria gave a landmark decision in the case of Bureau of Public Enterprise V. National Union of Electricity Employees (NUEE) when it held, in essence, that the National Assembly could not legally confer any powers on the NIC which are not recognised by the constitution. The implication of this being that the NIC's powers will be limited only to the scanty scope endowed on it by the Trade Disputes Act of 1976, even when modern exigencies dictate a more robust latitude of operations. This is because the ambitious Section 7 of the NIC Act 2006 which invests the court with wide powers was restrictively interpreted by the apex court in that case. The Supreme Court further held that unless the constitution is amended to incorporate the NIC, it could not be accorded the status of a superior court of record. By some commendable, though uncharacteristic speedy response, the two houses of the National Assembly last year successfully passed a bill called 'Constitution (Third Alteration) Bill, 2010." which has singular intent of incorporating the NIC in the amended 1999 Constitution. When the Senate passed the Bill last December, the Deputy Senate President and leader of the Ad hoc Committee on the Review of the 1999 Constitution, Mr. Ike Ekweremadu, put the issue succinctly when he said   'For the NIC to achieve the purpose for which it was established, the court must clearly and expressly be listed in the relevant sections of the constitution dealing with judicial powers and related matters' This 16-section bill has now been sent to all the 36 states Houses of Assembly for approval in consonance with section 9 of the 1999 Constitution.  The Lagos State House of Assembly for instance held a stakeholders forum on the bill on January 14 where almost all the participants eulogised the bill and urged the Lagos lawmakers to approve same. Speaking at the forum, the Presiding Judge of the Lagos Division of the NIC, Hon. Justice Benedict Kanyip, said 'As an institution directly involved in the proposed amendment, we have looked through the  Bill and found it meritorious, the amendments being sought will eliminate the confusions some people have about the jurisdiction of the court. 'We give the bill a favourable vote and hereby call upon the Lagos State House of Assembly to support it' On January 14, Edo State House of Assembly passed a resolution approving the bill. The Anambra State lawmakers had earlier passed the bill on December 28, 2010. It is naturally expected that the requirement of the approval by two-thirds (that is 24 states) of the 36 states of the Federation will be more than met. This writer sought opinion of experts on this issue of proposed amendment of the constitution to incorporate NIC, and well known authority on labour law who has published several books on the subject, Mr. Dosu Ogunniyi, wa among those who responded, he said 'The proposed listing of the NIC in the constitution portends good omen. For the mere fact that the NIC was not listed in the 1979 and 1999 Constitutions, it is being looked down on by other courts. This listing will improve labour law in Nigeria. And as it is, labour law is at the root of economic development because every other branches of law depends on it, be it oil and gas, libel, contract etc. It has been given greater emphasis in the developed nations because they value human resources. Our attitude to labour law in this country is a reflection of the value of respect we place on human lives. The recognition has the potential of raising labour law in Nigeria to the level of other parts of the world. You would realise that in the 4th edition of my book on labour law in 1991, I criticise the non-inclusion of the NIC in the constitution, and I did the same thing in the 2004 edition." Also, a Senior Advocate of Nigeria, Chief Gani Adetola-Kazeem said 'The NIC is a very important court in the administration of justice in Nigeria, especially as it relates to labour and industrial relations. Despite the strategic importance of this court, it was not provided for in the 1999 Constitution. 'NIC was established by the Trade Dispute Act and controversies had trailed its jurisdiction over the years. The present bill is seeking its listing in the constitution as a superior court of record with jurisdiction well spelt-out. 'I have digested the bill; the thrust of the bill is the listing of the NIC in the constitution while all the sections deal with the consequential amendments that would be engendered by the listing. This is a bill that it is worthy of support' A Lagos-lawyer, Mr. Bamidele Aturu, said "Listing NIC is in the constitution good for a number of reasons. First, as the only specialised court dealing with labour and industrial disputes, its decisions will no longer be subject to judicial review. 'Thus, the regular High Courts that are not as industrially informed as the NIC would no longer be in a legal position to nullify its decisions or stop it from entertaining cases as they could do at the moment. Trade unions, governments, employees, employers, labour lawyers and the general public would no longer be embarrassed by the utter confusion in this aspect of our jurisprudence. Second, the NIC would now be able to grant declaratory reliefs. The Supreme Court had, erroneously in my view, in the Western Steel's case held that the court could not grant declaratory reliefs as an inferior court' The chairman of the Ikeja Bar of the NBA, Mr. Adebamigbe Omole said 'It is a good thing because it will not only eliminate confusions surrounding the status of the court; it will also enhance the mechanism of labour and industrial relations in Nigeria. 'It is long overdue, but is better late than never, one looks forward to improved regime of resolution of industrial disputes in Nigeria Another Lagos-based lawyer with specialisation in the field of labour justice, ,  and founder of a NGO, Campaign for Labour Justice Reform in Nigeria, Mr, Enebong Etteh  said 'This bill is a reaction of the National Assembly to the Supreme Court decision delivered  on February 25th  2010, which stated that the National Assembly could not confer any jurisdiction on the NIC unless the 1999 constitution is amended. 'I commend the National Assembly for responding to the challenge posed by this decision by taking appropriate steps to ensure that the NIC is listed in the constitution with a well-defined jurisdiction. The bill is a welcome development' With this development, since it is trite that a stable mechanism for settling labour, employment and industrial relations matters is a sine qua non precondition for economic growth, one hopes that the proposed listing of the NIC, which is now being vested with all the powers of a High Court including the exercise of criminal jurisdiction on labour matters, will bring all the desired good expectations.

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