Jurisdiction of the National Industrial Court and ASUU Strike

A Case of How Not to Resolve a Trade Dispute

This article by Professor Abiola Sanni, SAN attempts to interrogate and reconcile the apparent conflict in the provisions of the Trade Disputes Act 2004 (TDA) and the National Industrial Court Act 2006 (NIC Act), with regard to jurisdiction on trade disputes

ntroduction

Trades disputes are sui generis, and not suited for adversarial proceedings where the parties appear in the court and engage in contentious arguments and rigorous legal subtleties to win. Rather, a preferred approach is the Alternative Dispute Resolution (ADR) mechanism including mediation, conciliation, arbitration and administrative enquiry, where the adjudicator(s) adopts an inquisitorial method of fact-finding to understand the parties and help them come to a decision. This is contrary to what is playing out in the Federal Government of Nigeria v Academic Staff Union of Universities (FGN v ASUU), where His Lordship, the Honourable Justice Polycarp Hamman, a Vacation Judge speedily heard and granted the FGN’s application for injunction, despite the Preliminary Objection of ASUU challenging the jurisdiction of the Court to entertain the matter. The trial Judge became functus officio after reading his order, as the case had to be re-assigned to another Judge who is yet to be known. Aggrieved, ASUU has appealed to the Court of Appeal against the interlocutory order. With this background, the substantive case has lost momentum and aggravated the situation, while the students, lecturers, parents and the nation are suffering the consequences.

Sequel to my earlier intervention available at https://www.linkedin.com/posts/ascolp_asuustrike-nigeriaeducation-asuu-activity-6980139209390985216-ahbu?utm_source=share&utm_medium=member_desktop, I attempt, in this piece, to interrogate and reconcile the apparent conflict in the provisions of the Trade Disputes Act, Cap T8 Laws of Federation 2004 (TDA) and the National Industrial Court Act 2006 (NIC Act), with regard to jurisdiction on trade disputes. The former leans in favour of ADR mechanisms and only permits a recourse to the NIC in limited special circumstances. The latter echoes proceedings of a regular court, with pockets of provisions on ADR mechanisms as exceptions to the rule. The question is, how may the apparent conflict be resolved in the overall interest of the society?

The Laws

The TDA is trade disputes-specific legislation, which expressly prohibits commencement of cases in respect of trade disputes in a court. Section 2(1) of the TDA provides:

“……….. 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, and accordingly, any action which, prior to the commencement of this section is pending in any court shall abate and be null and void”.

Sections 4-9 of the TDA establishes a framework for a bouquet of ADR mechanisms from which the parties and the Honourable Minister of Labour and Productivity may choose the option that is most suitable in the circumstances, to avert a particular trade dispute. In TIDEX (NIG.) LTD. v NUPENG (1998) 11 NWLR (Pt. 573) 263, the Court of Appeal held the jurisdiction of the court on trade dispute is ousted. According to the Court:

“Since the commencement of the TDA, no civil proceedings whether intra or inter union in respect of trade disputes can be entertained, such pending actions will abate and shall be null and void. [Udoh v Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139 at 148 referred to]”.

It is remarkable to note that, the NIC initially owed its existence to the TDA, Part II of which established the NIC and vested it with limited jurisdiction in respect of trade disputes. The NIC under the dynamic leadership of retired Honourable Justice Babatunde Adejumo, the former President of the NIC, had repositioned the NIC to play a more dynamic role in labour matters, by leading the efforts which culminated in amending the Constitution of the Federal Republic of Nigeria 1999 vide the Third Alteration. Section 7(1)(a) of the NIC Act vests the NIC with exclusive jurisdiction on civil cases relating to “Labour, including trade unions and industrial relations”, which of course is wide enough to include trade disputes. However, the words “trade disputes” were employed in Section 7(c)(ii) & (iii) thus:

7. The Court shall have and exercise exclusive jurisdiction in civil causes and matters

(ii) Any award made by an arbitral tribunal in respect of a labour dispute or an organisational dispute,

(iii) The terms of settlement of any labour dispute, organisational dispute as may be recorded in any memorandum of settlement. (Emphasis mine)

Section 17 goes further to vest the Minister of Labour and Productivity with power to take further pre-emptive action, by referring trade disputes to the NIC.

A community reading of all the above provisions will clearly show that the general jurisdiction of the NIC under Section 7(1)(a) on labour-related matters is circumscribed by Sectiobs 7(c)(ii) & (iii) and 17 of the NIC Act, thus, making the powers of NIC in respect of trade dispute practically limited. The basis of this position is the principle of expresio unis non exclusio alterius. Against this background, there is no conflict between the provisions of the TDA and the NIC Act, as far as jurisdiction on trade disputes is concerned. Trade disputes are usually resolved through negotiation, which essentially involves give and take. In my humble view, Section 17 TDA simply expects the Minister to refer the Mediator’s Report under Section 6 to the NIC, which would have helped to narrow the issues and speed up the resolution of the case. Rather, the FGN proceeded to file originating processes together with an application for interlocutory injunction, thus, conflating the speedy and efficient inquisitorial mechanism of TDA with adversarial proceedings under the general jurisdiction of the NIC Act. It would appear that the FGN adopted this ‘ingenuous’ approach because there was indeed, no Mediator’s Report as envisaged by Section 6 of the TDA. While Professor Nimi Briggs Committee’s Report which is acceptable to ASUU but rejected by the FGN could have served this purpose, the FGN chose, for obvious reasons, to keep mum about that milestone document which is a product of productive dialogue over the period of strike.

There is something to be said about Section 53(3) of the NIC Act, which provides that its provisions shall trump that of TDA in case of any conflict. A supremacy clause in a statute, is not unique to the NIC Act. It is regrettably now fashionable for the National Assembly to insert such a clause as a catha blanche to cover their deficiencies in overlooking possible inconsistent provisions in other laws which ought to have been specifically repealed, for example, as done by Section 53(1) of the NIC Act which repealed Part II of the TDA. In my view, a supremacy clause is arguably unconstitutional, null and void, due to its inconsistency with the provisions of Section 1(3) of the Constitution of the Federal Republic of Nigeria which entrenches the principle of supremacy of the Constitution. Furthermore, a statutory supremacy clause is tantamount to a naked usurpation of judicial power under Section 6 of the 1999 Constitution, and a transgression of the permissible boundaries of separation of powers and checks and balances. There are well-established rules on how to resolve a conflict between the provisions of two statutes, one of which is that specific legislation will override a general one. Thus, in ORUBU v NEC (1988) 5 NWLR (Pt. 94) 323 SC, the Supreme Court had this to say:

“Where specific provisions of a statute are subsequent to general provisions the specific provision of the statute will prevail. [Akpan v State (1986) 3 NWLR (Pt.27) 225 referred to]; thus, the fact that the Local Government Election Decree, 1987 has made specific provisions on election to local government councils is sufficient indication that the unsuspended or modified provisions of the 1979 Constitution, including Section 220(i)(g)(ii) are not to apply to matters connected with local government elections. The maxim generalia specialibus non derogant applies”.

See also: MATARI v DAN GALADIMA (1993) 3 NWLR (Pt. 281) 266SC.

In any case, section 53 of the NIC Act does not come into play at all since the NIC Act is complementary to and not inconsistent with the TDA as argued above. Assuming without conceding that a conflict exists, I submit that it will be counter – productive to interpret section 7 of the NIC Act in a manner that will tolerate NIC to entertain jurisdiction on trade disputes beyond the limited scope allowed under sections 7(c)(ii) & (iii) and section 17 of the NIC Act.

Thus, it is incongruous for the FGN to secure an injunction restraining ASUU in respect of a strike which unfortunately had commenced, and in its eight month running. The average gestation period of a civil case in a Court is about 18 to 24 months. While time could be abridged to accelerate the hearing, the dimension introduced by the pending appeal at the Court of Appeal is another kettle of fish. The unintended consequences of the ‘spin’ by the FGN in approaching the NIC, must be manifest by now. It is not too late for the FGN to retrace its step and revisit the recommendations of Professor Nimi Briggs Committee, a Committee established by FGN under a credible Elder Statesman with cognate experience, to broker a compromise between the parties.

Conclusion

It is therefore, a fallacy to paint ASUU as rigid and uncompromising in the circumstances of this case. The FGN should accept the wise counsel of critical stakeholders under the headship of Professor Nimi Briggs, as a panacea for immediate resolution of the dispute pending the evolution of a more comprehensive framework. Enough of the FGN’s cutting its nose to spite its face.

Professor Abiola Sanni, SAN, Professor of Commercial Law, University of Lagos; Available for feed back at asanni@unilag.edu.ng, 08033958020