1.0 Introduction
Labour related issues are weighty issues as they have economic implications on the country. It is therefore necessary that the government, through legislative framework, protect labour interests and provide an effective avenue for the resolution of disputes that arise therefrom. The establishment of the National Industrial Court of Nigeria (NICN) as a superior court of record vested with jurisdiction to determine labour related disputes was a step in the right direction for the economy. However, in recent years, issues as to its jurisdiction have been raised particularly as it concerns the jurisdiction to hear and adjudicate over tortious claims that arise in the workplace. It is this issue that this article will seek to address.
2.0 Jurisdiction of the National Industrial Court
Section 7 of the NIC Act confers exclusive jurisdiction on the NICN in civil causes and matters relating to labour, trade unions, environment and conditions of work; determination of issues relating to industrial action, question as to the interpretation of any collective agreement, the Constitution of any trade union amongst others. The National Assembly is also empowered to confer such additional jurisdiction on the court in respect of incidental or supplementary matters. Section 254C of the 1999 Constitution (as amended) expands the jurisdiction of the court in several respects. For instance, it has powers to adjudicate over matters connected with international best practices in labour as well as application or interpretation of international labour standards. Both provisions also extend the jurisdiction of the court to adjudicate over matters that are incidental to the matters over which the Court has jurisdiction. The question that begs for answer is what matters will constitute ancillary issues or to put it in other words, do the provisions of the Constitution and the NICN Act envisage a strict and narrow interpretation of the ancillary powers of the court so that it cannot adjudicate over certain matters irrespective of the fact that they are closely related to matters over which the court has jurisdiction? Can the NICN, for instance, adjudicate over a matter in tort as incidental to its jurisdiction over labour related matters, when the tort occurred between an employer and employee? It is these issues to which we will seek to find answers. In determining the extent of the ancillary powers of the NIC, we will consider few cases where the Court of Appeal has made pronouncement on the issue.
In Ecobank Nigeria Limited –v- Mrs. Winifred Effiok Osu[1] the Appellant placed a restriction on the Respondent’s account after paying her post resignation entitlements into the account. All the cheques issued by the Respondent on the account were dishonoured, whereafter the Respondent brought an action at the NIC claiming amongst other things damages for defamation. The NICN assumed jurisdiction in respect of the claim for defamation on the grounds that it was incidental to the claim bordering on labour and employment. On appeal, the Court of Appeal stated that the NIC did not have jurisdiction to entertain the claim on defamation as that was a standalone cause of action in law and it could not be lumped with an employment-related claim. We are hard-pressed to disagree with the finding of the Court of Appeal on this matter for reasons which we shall consider anon.
Jurisdiction is a creation of statute and it is the statute that creates a court that can limit its jurisdiction[2]. It is our submission, with all due respect, that if the Court of Appeal had adverted its mind not only to section 254C of the 1999 constitution but also sections 7 and 14 of the NIC Act, it would have reached a different conclusion in Ecobank’s case (supra). The court seemed to suggest in its judgment that the jurisdiction of the NIC can be sufficiently determined by sole reference to the Constitution and nothing else. By a refusal or failure to consider the provisions of the NIC Act in determining the scope and extent of the NIC’s jurisdiction, the Court of Appeal seemed to suggest that the conferment of any jurisdiction by an Act of the National Assembly on any court created by the Constitution is vacated if such jurisdiction is not equally conferred on the court by the Constitution that created it. This would seem to be turning the law on its head as Acts of the National Assembly and the Constitution are not mutually exclusive but are able to exist side by side and the Act of the National Assembly may make provisions for details not captured by the Constitution. The powers granted by the Act of the National Assembly, whether the Act was enacted before or after the promulgation of the Constitution, is never in contention as the powers are complementary to the provisions of the Constitution and the question of invalidity will only arise where there is inconsistency[3]. Since the court’s jurisdiction can be extended by statute, it is only right for the court in determining the issue of jurisdiction to look to both the Constitution and the statute that make provision for the court[4]. It is on this point that we submit that the Court of Appeal erred in not considering the provisions of the NIC Act.
A look at the provisions of sections 7 and 14 of the NIC Act, as well as section 254C (1)(a) and (k) of the 1999 constitution which the Court of Appeal relied on in reaching its decision will reveal that claims of tort can well be brought in an employer-employee dispute. We will reproduce the said provisions for ease of reference.
Section 7(1)- The court shall have and exercise exclusive jurisdiction in civil causes and matters-
- relating to-
- labour, including trade unions and industrial relations; and
- environment and conditions of work, health, safety and welfare of
labour, and matters incidental thereto.
Section 14- The court shall, in the exercise of the jurisdiction vested by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatsoever as any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided[5].
Section 254C(1)- Notwithstanding the provisions of section 251, 257, 272 and anything contained in this constitution and in addition to any such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
- relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the federation and matters incidental thereto.
One cannot help but notice the copious use of the words with which the ancillary jurisdiction of the NIC is captured under section 254C. If as it is stated that the lawmaker does not use any word in vain[6], one is left to wonder the scope of the words with which the ancillary jurisdiction of the court is expressed. The will of the framers of the constitution is sufficiently revealed in the repetitive use of the words ‘incidental to’ ‘connected therewith’ and other similar words used to express the ancillary jurisdiction of the NIC and it is safe to conclude that although a matter may ordinarily be an independent cause of action but because the facts that gave rise to it are employer-employee based, then it becomes incidental to the matter bothering on employer-employee relationship. It was for the Court of Appeal in Ecobank’s case to give effect to the will of the framers of the constitution as expressed under section 254C[7]. For a matter to be connected with an action brought before the court, it must be so intertwined that it naturally flows from the matter brought before the court. A key question to ask in determining if the matters are intertwined is this: If the employer-employer relationship was not in existence, would the tort have occurred? If the answer would be in the negative, then it is submitted that the tortious claim is so intrinsically connected to the employment related dispute that it is easy to see how the tort becomes incidental to the employment dispute and why it will be the intention of the framers of the constitution to have them decided together. Also, the dispute in Ecobank’s case (supra) arose from the payment of employee gratuity and benefits which is evidently captured under the provision of section 254C(1)(k).
By a more fortified reasoning, section 14 of the NIC Act empowers the court to grant “all remedies whatsoever” the parties are entitled to in respect of any legal or equitable claim. To argue that reliefs for tortious claims cannot be granted when an employment related matter is being determined by the NIC is to ignore the clear provisions of the law as claims in tort are either legal or equitable, depending on the particular tortious claim. The intention of the legislature which the court is expected to give effect to is further clearly revealed in that section i.e. the avoidance of the multiplicity of actions as long as what is in dispute is a labour issue. One wonders why this will be difficult to see upon a consideration of that section, thus the reiteration of our position that the Court of Appeal would have reached a different decision if it had as much as considered the provision of section 14 of the NIC Act. The Court of Appeal in reaching the decision in Ecobank’s case relied on its previous decision in Dr Emmanuel Akpan v. University of Calabar[8] where the court per Otisi JCA stated as follows:
“A claim cannot be considered as ancillary to the main claim when it is completely removed from the subject matter of the main claim… a careful examination of the provisions section 254C of the 1999 constitution, as amended will not reveal that its powers extend to entertaining a claim in tort, at all. A claim in tort cannot be considered as being ancillary to a claim for wrongful dismissal when brought before a court which has its jurisdiction limited by statute… a claim for defamation stands on its own. The learned trial judge therefore rightly declined jurisdiction over the appellant’s claim for defamation.”
Similarly, in Bisong v University of Calabar[9], decided by the same panel of Justices and on the same day, the court used the same words in stating that the NIC cannot exercise jurisdiction in tortious liability, notwithstanding that it flowed from an employer-employee relationship. In the twin matters, the court did not consider the provisions of section 7 and 14 of the NICN Act. In 2018, however, two years after the decision in Akpan’s case and Bisong’s case, the Court of Appeal in Medical and Health Workers Union of Nigeria v. Dr. Alfred Ehigiegba agreed with the position we took above i.e. that the National Industrial Court has ancillary jurisdiction to deal with any subject-matter that is intertwined with its primary jurisdiction conferred under the Act and the 1999 Constitution irrespective of the fact that such subject-matter would ordinarily constitute a different cause of action[10]. However, the case of Ecobank v. Effiok Osu (supra) which was decided in 2020 and being later in time will constitute the extant position of the law.
3 .0 Conclusion
We cannot help but throw our weight behind the Court of Appeal’s decision in MHWUN’s case above as the truest reflection of the intention of the framers of the Constitution in the consistent use of the words that make for the ancillary jurisdiction of the NIC. It is also correct that in consideration of the jurisdiction of any court, resort must be had to the Act of the National Assembly establishing the court as well as the Constitution; which was what the Court of Appeal failed to do in the line of cases that denied the jurisdiction of the NIC to hear claims for tort as part of its ancillary jurisdiction. The position of the law where there are two conflicting decisions of the same court is that the latter in time prevails as the law[11], thus, we may be stuck with the decision in Ecobank v Osu (supra), until the Court of Appeal is able to reverse itself. It is also necessary that the Court of Appeal harmonises its decision on this point so as to avoid a situation where various divisions of the court will keep handing out conflicting judgments on the same point seeing that by virtue of section 243(4) of the 1999 Constitution, the decisions of the Court of Appeal on appeals from the NIC are final[12]. Alternatively, it is hoped that the case of MHWUN will proceed on appeal to the Supreme court, since it was a case that originated in the High court not the NIC and the Supreme court will have the opportunity to set the law straight.
[1] CA/L/963/2016 (unreported) in which judgment was delivered on 24 February 2020.
[2] Garba v. Mohammed (2016) LPELR-40612(SC)
[3] Amadi & Anor v. INEC & Ors. (2012) LPELR-7831 (SC)
[4] Garba v. Mohammed (supra).
[5] Emphasis mine
[6] Aroh v Odedo & ors (2011) LPELR-9202
[7] Marwa & ors v Nyako & ors SC. 141/2011, where the court stated that the duty of the court is to give` effect to the will of the legislature. See also Tukur v Government of Gongola State (1989) 4 NWLR (Pt. 117) 517
[8] (2016) LPELR-41242 (CA)
[9] (2016) LPELR-41246 (CA)
[10] (2018) LPELR- 44972 (CA)
[11] CBN v Zakari (2018) LPELR-44751(CA); Osakwe v. Federal College of Education (2010) 3 SCNJ page 529 at 546
[12] See also Skye Bank plc v Victor Iwu [2017] 6 SC (part 1)