A Few Burning Questions on Enforcement of Fundamental Rights in National Industrial Court

Just like previous posts, I don't intend to bore the reader. Just straightforward discourse. We are all aware that with the amendments to the Constitution, the National Industrial Court (NIC) has now been upgraded to a Superior Court of Record. The implication of this upgrade is to 'move' all labour - related complaints to this special court. The Constitution therefore donates exclusive jurisdiction to the NIC in that regard under Section 254(C). Important to this post however is Section 254 (C) (d) which provides as follows;

254C (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to 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-
...
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine;

In clear terms therefore, any dispute as to the breach of  fundamental rights on labour related issues can only go to the NIC, Section 254(C) (1) has given that exclusive power. This in essence has arguably relegated the Federal, State and FCT High Courts powers to exclude labour related matters. Yes, I used the word 'arguably' Don't crucify me yet!

It is not in doubt that the drafters of the amendment to the Constitution meant real good with their intentions, but certain lapses were left undone. This is quite evident from the provisions of Section 46 which speaks for itself anyway in the following terms:

46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.

The trio of Subsections 1, 2, 3 to Section 46 (as it were) give a sort of contradictory pose to the donated powers given to the NIC by the same constitution under Section 254 (C). We should also have it in mind that the amendment procedure for Chapter IV has its own procedure, which has to follow the spirit of Section 9. Back to our post, first, Section 46(1) mentions 'High Court in that state'. I do not intend to go into the judicial authorities over the definition of  'High court', but safe to state that the Fundamental Rights (Enforcement Procedure) has remedied the situation when it defines a High court to be Federal or State High Court. The reason why we have options in filing in either of the two. However, can we still define 'A high Court in that state' as the 'National Industrial Court in that state'? Again, the FREP Rules, 2009 defines a  “Court” to mean the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja, well, it was made in 2009, while the amendment was made in 2011. Wouldn't an amendment of the Rules be necessary? 

Second, subsection 2 donates 'original jurisdiction to hear and determine ANY application'. Well, arguably again, the drafters needed to have reconciled the apparent misnomer and perhaps ought to have called for an amendment of  Chapter IV to bring the NIC fully on board.

The third issue with subsection 3 was actually what led me here. The Chief Justice of Nigeria makes Rules for the enforcement of Fundamental Human Rights. Before you lead my head to the guillotine this time around, I should quickly raise the alarm that the 2017 Rules of the National Industrial Court has also made provision on how to commence an action on interpretation or application of Chapter IV of the Constitution and IT IS NOT BY WAY OF ORIGINATING MOTION!. The question on how that could be a proper procedure is yet another argument for another day. Order 3 Rule 2 (2) of the 2017 NIC Rules provides as follows:

(2) Where any matter relating to Section 254C(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is to be filed before the Court, such matter, if — (a) it relates only to interpretation, shall be by way of Originating summons ; (b) it relates to interpretation and application shall be by way of Complaint.

Perhaps, just perhaps,  the reference to Originating summons in (2) (a) above was a typographic error, or better still, that the drafters could have meant 'originating motion'. A contrary position would not be wrong either that it is not. It is quite deliberate as it provides for an alternative with (2) (b). Head or tail, the issue is still, who has the powers to make the rules?

In an attempt to bring these issues to fore, the Court of Appeal, as far as I have gone, has made a sort of pronouncement on the issue, albeit tactically avoiding the clash in its Ruling on preliminary objection raised by the Respondent at the trial Federal High Court in  MRS. GLORIA LEWECHI ONYIRIUKA v. ATTORNEY GENERAL OF ENUGU STATE (2018) LPELR-45104(CA). The Applicant's claim was rooted in breach of right to freedom of discrimination and she approached the Federal High Court. Part of the contentions of the Respondent at the trial court was that the suit can only be properly filed at the National Industrial Court and not the Federal High court. The objection was upheld and the suit struck out, even though the trial court muddled up the issue of the reliefs not being solely rooted under Chapter IV. The position of the Court of Appeal was that the reliefs sought were purely on fundamental rights and thereafter ordered for a retrial before another Federal High Court Judge.

One would argue that perhpas the objector in the case did not get a fair resolution of his objection since his argument flows as follows;

Respondents Arguments:
The Hon. Attorney General submitted that the Federal High Court has no jurisdiction to determine matters relating to labour, employment or pecuniary/monetary entitlements arising from employment. Issue of labour, employment or monetary entitlements to an employee fall within the exclusive jurisdiction of the National Industrial Court, by virtue of Section 12(1)(a) and (d) of the National Industrial Court Act 2011 and Section 254C(1)(d) of the 1999 Constitution as amended in 2011. Furthermore, he submitted that Section 254C(1)(d) of the 1999 Constitution specifically provides that the National Industrial Court shall have jurisdiction on matters:-

(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine."

As usual, I'll leave you with part of the decision of the court on the point....

"?The appellant's claim is squarely and fittingly anchored on Section 42(1) & (2) and Section 46(1) & (2) of the Constitution of the Federal Republic of Nigeria, as amended. They each provide thus:- "42(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person - (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action or the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions. (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth." "46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress. (2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter." Unarguably, by virtue of Section 46(1) & (2) of the Constitution reproduced above, a High Court such as the Court below, albeit a Federal High Court, has an original jurisdiction to hear and determine any application made to it pursuant to the provisions of Section 42(1) & (2) of the same Constitution, premised on Chapter IV thereof, that an applicant's fundamental right has been or is being or likely to be contravened by any person. Olutola v. University of Ilorin (2004) 18 NWLR (pt. 905) 416; Jack v. University of Agriculture, Makurdi (2004) 5 NWLR (pt. 865) 208; The Nigerian Navy v. Garrick (2006) 4 NWLR (pt. 69); Zakari v. Inspector General of Police (2000) 8 NWLR (pt. 670) 666. The important thing to be considered by the Court is that the applicant's claim to enforce his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 2009 must be founded on the constitutionally guaranteed rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, as amended. In other words, where the main claim of an applicant is anchored on a breach or threatened breach of his fundamental right, the High Court has the jurisdiction to entertain and determine the application. Federal Republic of Nigeria v. Abacha (2007) LPELR - 8177 (CA); Surveyor General of Cross River State v. Jonathan (2014) LPELR - 23380 (CA). However, the converse is that where an alleged breach of a fundamental right is an ancillary or incidental claim and not a main claim, the jurisdiction of the High Court cannot be activated in considering such an application. Tukur v. Govt. of Gongola State (supra); Dongtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (pt. 717) 132 at 152; Federal Republic of Nigeria v. Ifegwu(2003) 15 NWLR (pt. 842) 113 at 132 - 135; University of Ilorin v. Oluwadare (2006) 14 NWLR (pt. 1000) 751. In the instant case, I have found that the main claim of the appellant at the Court below was for the enforcement of her fundamental right against discrimination on account of her ethnicity, place of birth. Therefore, the Court below possesses the jurisdiction to entertain and determine her application." Per YAKUBU, J.C.A. (Pp. 18-22, Paras. F-B)

Thanks for reading. As always, only constructive criticism are allowed, and all opinions in this post are of the writer alone.