By Folabi Kuti SAN
From a war in Europe, to looming global recession, the aftershocks of a multi-year pandemic, and an imminent national election at home, economies the world alike took a bruising in 2022. For the most part though, businesses, industries, and nations have stayed agile and resilient while embracing innovation. In this time of breaking new ground, there were significant decisions of courts impacting on the emergent world of work. Within the medium’s constraints, this paper will examine the far reaching, the, respectfully, eyebrow raising, and much in-between – of the labour court- the National Industrial Court of Nigeria’s (NICN) noteworthy decisions in 2022.
Two decisions in the year under review, underscored the lingering threat of the COVID-19 pandemic; not only on the public health and its coordinating systems, but on relations in the world of work. The first, a convenient and thinly-disguised veil by the defendant to avoid meeting obligations to pay outstanding salaries (citing the harshness/after-effect of COVID-19 on revenue) in Mr. Bamidele Nnamdi Niyi v Diya, Fatimilehin & Co. (Unreported Suit No. NICN/KD/31/2021, the judgment of which was delivered 14 October 2022; per Hon.Justice S.O Adeniyi). In the second case, Mr. Ganiyu Rasak v Liquid Bulk Limited (Unreported Suit No. NICN/PHC/103/2020, the judgment of which was delivered 09 February 2022; per Hon.Justice N.C.S Ogbuanya), an employer attempted to justify terminating the claimant’s employment on account of the latter’s ‘job abandonment at workplace’. That is, the employee’s physical absence from a designated physical workplace during government imposed lockdown measures; implemented to curtail the spread of the disease. In both cases, the Court incisively determined that the facts did not lend themselves to excusing the defendants, and thus the defence(s) could not withstand the heat of judicial scrutiny.
Chief Sebastine Hon SAN, FCIArb v National Assembly & Anor (Unreported Suit No. NICN/ABJ/142/2022, the judgment of which was delivered 15 July 2022; per Hon.Justice O.A Obaseki-Osaghae) had as its focus, the stagnation of judicial officers’ remuneration and conditions of service since 2008. Suffice to say, it took the intervention of the self-same judiciary to command the National Assembly, the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC), and the Attorney General of the Federation (AGF) to urgently initiate measures to ensure salaries and allowances of judicial officers in the country are reviewed upward. The Court even went so far as to state the exact amount that all judicial officers should be paid; from the Chief Justice of Nigeria, down to all judges of the various High Courts.
The decision in Shell Petroleum Development Company of Nigeria Limited v The Minister of Petroleum Resources & 2 Ors. (Unreported Suit No. NICN/ABJ/159/2018, the judgment of which was delivered 28 July 2022; per Hon.Justice B.B Kanyip, PhD, (President,NICN) heralds a marked revival of interest in, inter alia, the propriety (or, otherwise) of the Minister of Petroleum’s (mandatory) approval/consent as a condition precedent to determining employment relationships in the oil and gas industry. The Court pointedly held that Guidelines made further to the provisions of the Petroleum Industry Act, 2021 (PIA) are valid and applicable to employment contracts within the petroleum industry. This decision’s reverberating echoes are, however, far from paling inaudibly. Suffice to say that the last may not have been heard of the all-too-significant allied issues raised and resolved in the matter at first instance.
Another emphatic and consequential decision was handed down in Nigeria Labour Congress & 2 Ors v The Governor of Kaduna State & 11 Ors (Unreported Suit No. NICN/ABJ/149/2021, the judgment of which was delivered 9 June 2022; per Hon.Justice O.A Obaseki-Osaghae) The court held that a state executive is not invested with constitutional power to establish a Judicial Commission of Inquiry into matters related to, or connected with any labour, employment, trade unions, or industrial relations circumscribed by Section 254C of the Constitution. It remains the case that only the National Industrial Court of Nigeria (NICN) has jurisdiction to exercise any adjudicatory role in relation to these matters; to the exclusion of any other Court or tribunal.
The court in Mr. Donald Nosiri v Royal Exchange Plc & Anor (Unreported Suit No. NICN/LA/498/2020, the judgment of which was delivered 3 February 2022; per Hon.Justice Elizabeth A. Oji, PhD) considered the contours of the duty to exercise contractual discretion in good faith. It held that parties must exercise discretion reasonably, “in a manner consistent with the purposes for which it was granted in the contract.” The court held that the defendant acted arbitrarily and discriminatorily in paying the Group Managing Director (GMD) his terminal benefits in line with company policy, while denying the claimant; who was terminated on the same date, his severance benefits package.
In Jennifer Nwovike v Smashinvest Integrated Services Limited & Anor (Unreported Suit No. NICN/LA/609/2019, the judgment of which was delivered 20 October 2022; per Hon.Justice I.G Nweneka), an official query with penal sanctions culminated in the termination of a claimant’s employment. Her offence was associating with a former employee of the 1st Defendant. The court found the termination to constitute an infringement of the claimant’s fundamental right of freedom of association. Mrs. Ogechukwu H. Ogbaka v Ohha Microfinance Bank Ltd (Unreported Suit No. NICN/EN/03/2020, the judgment of which was delivered 13 December 2022; per Hon.Justice O.O Arowosegbe) expounds on peremptory termination, amounting to unfair labour practice and the emergent legal regime of unlawful dismissal in master-servant employments; where the employer goes on to libel the employee.
Making a consequential order of reinstatement, the court frowned at the victimization of the claimant in Sonny Ekedayen v Rasheed Olaoluwa & Anor (Unreported Suit No. NICN/LA/569/2015, the judgment of which was delivered 8 December 2022; per Hon.Justice R.H Gwandu) ; in circumstances where the claimant found his employment with the 2nd defendant terminated for refusing to either resign or proceed on ‘voluntary’ early retirement. In Sopeyin Olasupo Arif & 3 Ors. v Greenwich Registrars & Data Solutions Limited (Unreported Suit No. NICN/LA/608/2019, the judgment of which was delivered 26 September 2022; per Hon.Justice I.G Nweneka) the court also condemned as unfair labour practice, the defendant’s termination of the claimants’ employments in a manner where redundancy could be inferred; without negotiating appropriate redundancy payments. The defendant was subsequently ordered to negotiate appropriate redundancy payments to the claimants.
In Mrs Adebomi Motunrayo Orogun v Heritage Bank Plc & Anor (Unreported Suit No. NICN/LA/502/2019, the judgment of which was delivered 23 March 2022; per Hon.Justice Elizabeth A. Oji, PhD) the court had occasion to interpret an Employee Reference Form to be nothing more than what it purports to be, and certainly not a guarantee, indemnity, or any form of security document imputing liability to the third party providing the reference.
The decisions in Irokanulo Obioha Samuel & 53 Ors, v National Orthopaedic Hospital Enugu & 4 Ors. (Unreported Suit No. NICN/B/13/2014, the judgment of which was delivered 15 February 2022; per Hon.Justice O.O Arowosegbe) and Umah I. Orji & 4 Ors. v University of Nigeria & 3 Ors (Unreported Suit No. NICN/EN/01/2021, the judgment of which was delivered 17 March 2022; per Hon.Justice O.O Arowosegbe) dealt with a novel issue of employment class action. The former case addressed an action not properly initiated as an employment class action, having failed to meet the mandatory condition precedent of certification. The latter focused the sacred mandate of the Court in employment class actions, where appropriately invoked, with the authorization of the class represented.
Eric Ivivie Baror v Polaris Bank Ltd (Unreported Suit No. NICN/ABJ/159/2018, the judgment of which
was delivered 24 November 2022; per Hon.Justice B.B Kanyip, PhD, OFR, (PNICN) is a remarkable
decision for more reasons than one. In arriving at the most recent of Court of Appeal decisions on the
jurisdiction of the NICN over claims for defamation/torts (declaring that the labour court is not vested
with such jurisdiction) the court reviewed the spate of conflicting decisions of the appellate final court
on the point. The decision under reference also piercingly considered the defendant’s unlawful
conduct in booking outstanding overdraft balances owed it by some of its customers, against the name
of the claimant. In addition, it pronounced on the claimant’s entitlement to reference letters with
regard to future employment, reflecting a proper and accurate recommendation by the defendant to
a 3rd party, etc.
The decisions in Temitope Oloyede v Cummins West Africa Ltd (Unreported Suit No. NICN/ABJ/54/2017, the judgment of which was delivered 22 July 2022; per Hon.Justice E.N Agbakoba), Mrs. Tamar Adigbonon v Eko Electricity Plc (Unreported Suit No. NICN/LA/88/2017, the judgment of which was delivered 3 February 2022; per Hon.Justice Elizabeth A. Oji) , and Marshal Ofeh Ejikeme Ikpor v The Corps Marshal & Chief Executive, FRSC & Anor (Unreported Suit No. NICN/ABK/04/2014, the judgment of which was delivered 28 July 2022; per Hon.Justice O.O Arowosegbe) handed down around the same period, also presented a few controlling ratios on the court’s jurisdiction in employment-relations defamation.
The decision in Interswitch Limited v Mr Christopher Esumeh (Unreported Suit No. NICN/LA/295/2020, the judgment of which was delivered 28 February 2022; per Hon.Justice I.G Nweneka) reinforces the NICN’s appellate and supervisory jurisdiction over an arbitral Tribunal within jurisdictional scope endowed in Section 254C [3] of the 1999 Constitution; and to entertain an application to set aside a ruling or decision of the arbitral Tribunal. Still on its jurisdiction, FRN v Ogieriakhi Joyce Amenze & Anor (Unreported Suit No. NICN/BEN/1C/2021, the judgment of which was delivered 13 October 2022; per Hon.Justice A.A Adewemimo) saw the court assert an infrequently invoked criminal jurisdiction to convict the defendant on a two-count charge of complicity in human trafficking, punishable by the provisions of section 16(1) of the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015.
The thoughtful and thorough expositions in Ifesinachi Akim Onuaguluchi v IMT, Enugu (Unreported Suit No. NICN/EN/10/2022, decision handed down on October 20 2022; per Hon. Justice O.O Arowosegbe) Abubakar Bayu v Prof. Abdullahi Mahdi (Unreported Suit No. NICN/GMB/003/2018, the judgment of which was delivered 16 June 2022; per Hon.Justice Mustapha Tijjani) and Muhuyi Magaji Esq. v Kano State Government & 5 Ors (Unreported Suit No. NICN/ABJ/347/2021, the judgment of which was delivered 14 December 2022; per Hon.Justice O.O Oyewumi) grappled with the state of law (almost in a flux) as to the applicability of limitation law(s) to employment related claims.
At the appellate level, the Court of Appeal, Ilorin Division laid down a commanding ratio in unreported Appeal No. CA/IL/20/2021 Mr. Victor Adegboye v United Bank for Africa, delivered on April 14, 2022. The Court emphatically held that the National Industrial Court of Nigeria (NICN) has latitude to depart from strict application of the adjectival law of evidence in deserving cases where the interest of substantive justice would be served.
Unfair Labour Practice(s) & Compensatory Damages
The NICN’s power of adjudication over fact patterns depicting unfair labour practice(s), along with its ancillary power to award compensatory damages, is now fairly settled. What has gradually evolved from the cases in recent years, is the court’s benchmarking of the quantum of damages as against a commensurate number of years’ worth of salaries the successful claimant would have been entitled to, had employment continued. It is now almost certain to discern a pattern in the award of compensatory damages.
The decision in Mr. Abdul-Hakeem Olasewere v Airtel Networks Limited (Unreported Suit No. NICN/IB/90/2014, the judgment of which was delivered 7 April 2022; per Hon.Justice J.D Peters) generated not a few concerns over the quantum of damages- millions in tow. The ensuing award of 60 million naira as general damages represented an equivalent of 2 years’ salaries. The cold facts revealed a finding of wrongful termination of the claimant’s employment and the attendant stigma on his character and stellar career and future employment prospects. In particular, the claimant was tainted with guilt over an undisclosed allegation of ‘improper conduct’. Explicably so, an additional award of =N=100,000,000.00 (One Hundred Million) Naira, serving as a penal deterrent measure, was granted as exemplary damages.
On finding that the determination of the claimant’s employment during her maternity leave period was unlawful and discriminatory against her on grounds of gender, pregnancy, childbirth, and marital status, the trial Judge in Mrs. Nicoline Tresfon Ogidi Nwankwo v Mrs. Priscilla Olloh & Anor (Unreported Suit No. NICN/LA/674/2013 , the judgment of which was delivered 15 December 2022; per Hon.Justice O.A Obaseki-Osaghae) awarded the claimant an equivalent of three years gross salary as general damages. The case of Mrs. Sharon Philip v Notore Chemical Industries Ltd (Unreported Suit No. NICN/YEN/56/2015, the judgment of which was delivered 29 July 2022; per Hon.Justice N.C.S Ogbuanya) is also of moment here. The facts turned on workplace victimization culminating in the abrupt termination of the claimant’s employment. The sum of N5,000,000.00 (five million naira) was awarded as general damages for acts constituting unfair labour practice in circumstances involving the victimization of the claimant in the workplace by a superior staff. The claimant had testified against the defendant following a whistle blowing ethical and anti-corruption hearing that led to the latter’s suspension and failure of the defendant company to protect the claimant against retaliation by the superior officer.
Similarly, the court considered, inter alia, in Dr Orji Geoffrey Ikenna v Zitadel Medical and Diagnostics Ltd & 2 Ors (Unreported Suit No. NICN/LA/674/2013, the judgment of which was delivered 15 December 2022; per Hon.Justice O.A Obaseki-Osaghae) , the propriety of (the) termination of a medical practitioner on grounds bordering on professional and/or medical negligence, without a medical disciplinary hearing. The damages awarded on the successful outcome of the claimant’s case considered ‘the unsubstantiated allegation of professional negligence that has maligned the claimant’s personal and professional character’. The evidence was unchallenged. Somewhat of an incremental slant, the damages awarded in this case stood at an equivalent of (claimant’s) 18 months’ salary. In Mr. Edwin Attah v Saii Associated Ltd/GTE (Unreported Suit No. NICN/ABJ/363/2020, the judgment of which was delivered 5 May 2022; per Hon.Justice O.O Oyewumi), the court found that the termination of the claimant’s employment carried with it some stigma on the claimant’s person and character, and which allegation the defendant was not able to prove. A sum equivalent to the claimant’s two years’ salary was awarded as damages.
In Mrs. Tamar Adigbonon v Eko Electricity Distribution Plc (Unreported Suit No. NICN/LA/279/2021, the judgment of which was delivered 3 February 2022; per Hon.Justice Elizabeth A. Oji, PhD) , the claimant had been out of work for 6 years. Upon a finding of wrongful dismissal, the Court awarded the equivalent of 6 years’ salary as general damages for loss of earnings within this period. Similarly, in Mr Boyede Oluwafemi v International Tobacco Company Ltd (Unreported Suit No. NICN/IL/10/2020, the judgment of which was delivered 20 May 2022; per Hon.Justice K.D Damulak) , on a wrongful dismissal without a fair hearing and while a criminal allegation was still pending against the claimant, the court awarded damages of N10,000,000.00 (Ten Million Naira) against the defendant. In Hillary Lelekumo v Cardinal Drilling Services Ltd (Unreported Suit No. NICN/BEN/06/2020, the judgment of which was delivered 4 April 2022; per Hon.Justice A.A Adewemimo) the compensatory damages for constructive dismissal within the peculiar facts here- the placement of the claimant on standby without pay for over two years – two years’ salary was awarded to the claimant as compensation by way of general damages. Similarly, in Mrs Mercy Chinenye Odenze v Matrix International Academy (Unreported Suit No. NICN/GMB/006/2020, the judgment of which was delivered 30 June 2022; per Hon.Justice Mustapha Tijjani) and Yusuf Tijjani Yusuf v Corporate Affairs Commission (Unreported Suit No. NICN/ABJ/06/2021, the judgment of which was delivered 28 April 2022; per Hon.Justice O.O Oyewumi), the equivalent of two years’ salary was awarded as damages to the claimant in each of the cases, for breach of contract.
In Miss Yemi Edokpayi v ABNL Limited (Unreported Suit No. NICN/PHC/146/2020, the judgment of which was delivered 31 January 2022; per Hon.Justice N.C.S Ogbuanya) the court condemned the capriciousness of disciplining the claimant by indefinite suspension spanning for 6 years, for a mere absence from duty for two days, and for which the claimant provided reasons in an answer to the query served on her. In addition to granting the sum of N2,000,000.00 (two million naira) against the defendant as general damages for acts constituting unfair labour practice, the court ordered the immediate payment of the sum of N7, 920,000.00 (seven million nine hundred and twenty thousand naira) representing the outstanding salaries/entitlements for the period of the claimant’s indefinite suspension, being a period of 6 years (72 months) at monthly earnings of N110, 000.00. The unfair labour practice of indefinite suspension (of employee) was also frowned upon in Mr Adegboyega Adewale v Fan Milk Plc (Unreported Suit No. NICN/IB/68/2015, the judgment of which was delivered 25 August 2022; per Hon.Justice J.D Peters).
Compensatory damages in the context of industrial accidents
The facts in Mr. Monday Ishmael v African Foundry Nigeria Limited (Unreported Suit No. NICN/UY/32/2018, the judgment of which was delivered 21 July 2022; per Hon.Justice M.A Namtari)
evoke deep empathy. The claimant was involved in an industrial accident in the performance of his work for the defendant, leading to the amputation of his leg at the prime age of about 22. The ensuing court’s judgment is, with respect, more likely to inspire critique than to serve as an authoritative guidance on the award of damages under any circumstances. On the face of the recorded judgment the claimant appeared to have asked for N50,000,000.00 million as special and general damages for the permanent injury suffered. The court proceeded to award more than the amount sought; in bestowing: ‘the sum of N70,000,000.00 (Seventy Million Naira) only as damages for the loss of his leg while working for the defendant.’
There is also the argument as to whether the peculiar facts and claim, neither seeking compensation under the common law tort of negligence nor under the Employees’ Compensation Act (ECA) 2010, or any other statutory duty, can be sustained in the evidential circumstance of res ipsa loquitur which the court found availed the claimant.
The illuminating position taken by the court in Mr. Charles Emeruwa v Mr. Adedamola Ayokunu Are & Anor. (Unreported Suit No. NICN/IB/44/2018, the judgment of which was delivered 7 March 2022; per Hon.Justice J.D Peters) confirms, sub silentio, that an action for compensatory damages for workplace injury may even where not held to have become stale or caught by limitation laws, may, nonetheless, become caught by the principle of estoppel by conduct. The claimant while in the employment of the defendants was attacked by armed robbers in the premises of the defendants sometimes in 1989. The attack led to the amputation of his left wrist. The cause of action arose in 1989. A demand was made on the defendants for compensation in 1993.The defendants replied to the claimant’s counsel offering a sum, with an enclosure of a cheque drawn on said sum. There was a gap in communication between the offering of the cheque in 1993, and an action filed in 2018 on a claim for compensation! The court held that the claimant’s undue delay had conveyed an impression to the defendants, and so was caught by the doctrine of estoppel by conduct. The right of the claimant to ventilate the action became hindered by his undue delay in bringing same.
The claims in Okere Nwanoruo Junior v Petmam Ventures Ltd & 2 Ors (Unreported Suit No. NICN/YEN/167/2016, the judgment of which was delivered 13 October 2022; per Hon.Justice P.I Hamman) were for damages and compensation for personal injury the claimant allegedly sustained which occasioned the amputation of his little finger, and for his pains and suffering. The claims failed as the claimant neither appeared in court to enable the court take judicial notice of the injury, nor called any medical evidence in support of the alleged injury’s existence. On a finding that the defendant failed in its duty of reasonable care towards the safety and wellbeing of the claimant while in the course of its employment, resulting in permanent injuries to the claimant, the court in Mr. Adamu Babangida v Slava-Yeditepe Projects Limited (Unreported Suit No. NICN/LA/530/2016, the judgment of which was delivered 28 February 2022; per Hon.Justice M.N Esowe) awarded the claimant the sum of N8,000,000.00 (Eight Million Naira) as damages.
A public interest litigation, NGO Coalition for Environment (NGOCE) & 12 Ors v Biase Plantation Limited (Vilmar Int Plc) & Anor (Unreported Suit No. NICN/LA/43/2021, the judgment of which was delivered 15 February 2022; per Hon.Justice Sanusi Kado), came before the court on behalf of applicants and plantation farm labourers of the respondent’s organisation including those who died in the course of their employment. The claim failed because the claimants failed to exhaust the grievance remedial measure to first approach the NSITF Board as provided for in the Employment Compensation Act; which the claim was based upon. Failure to exhaust the procedure under the Employment Compensation Act was also the albatross to a successful outcome of the injured claimant in Mr. Emmanuel Eshebrinama v God is Good Motors (Unreported Suit No. NICN/LA/225/2019, the judgment of which was delivered 5 September 2022; per Hon.Justice S.H Danjidda). However, in Mr Alex Ekeh v Setraco Nigeria Limited (Unreported Suit No. NICN/ABJ/312/2020, the judgment of which was delivered 14 October 2022; per Hon.Justice O.O Oyewumi) the defendant failed to report to NSITF the injury sustained by the claimant in the course of employment; as otherwise mandated by statute, and which thus occasioned the denial of compensation for the claimant. The court found against the defendant for the breach of these duties, and awarded compensatory damages. In Mr. Godwin Okunzuwa v Nigerian National Petroleum Corporation & Anor (Unreported Suit No. NICN/CA/46/2017, the judgment of which was delivered 19 May 2022; per Hon.Justice A.A Adewemimo), a claim for compensation for permanent incapacitation and loss of earnings occasioned by the claimant’s injury suffered while in the course of work, led to an award of the sum of N25,000,000 (Twenty-Five Million Naira only) as compensatory damages.
On a claim for workplace injury predicated on the common law torts of negligence of the employer/defendant, the injured claimant in Mr. Happy Uche v Axxon Energy Limited & Anor (Unreported Suit No. NICN/ASB/10/2019, the judgment of which was delivered 15 December 2022; per Hon.Justice J.I Targema, Ph.D ) proved the trilogy of duty of care, breach of the duty of care and resultant damage. The court awarded the claimant the sum of ₦15,000,000.00 (Fifteen Million Naira) only as damages for negligence for injury occasioning the loss of his lower left limb in the course of work. Contrariwise, the claims for industrial accidents in Mr. Uwe Sunday Ebong v CCECC Nigeria Limited (Unreported Suit No. NICN/AK/02/2019, the judgment of which was delivered 27 May 2022; per Hon.Justice K.D Damulak), Fredrick Ikhaghu v Euro Global Foods and Distilleries Ltd (Unreported Suit No. NICN/ABJ/345/2019, the judgment of which was delivered 30 September 2022; per Hon.Justice O.A Obaseki-Osaghae), Mr. Marshal Gowon v Al-Rissalah Printing & Publishing Co. Ltd (Unreported Suit No. NICN/KS/04/2016, the judgment of which was delivered 28 September 2022; per Hon.Justice S.O Adeniyi) and Norbert Chukwuemekah Nworah v Zenith Securities Ltd & 3 Ors (Unreported Suit No. NICN/EN/48/2019, the judgment of which was delivered 29 June 2022; per Hon.Justice O.O Arowosegbe) failed as the respective claimants failed to adduce credible evidence to establish their claims for negligence and the breach of the statutory duty alleged.
As the saying goes, something old and something new, in the outgoing year, the court has certainly kept faith with its guiding principles, while breaking new ground. And while some of its decisions seem destined to undergo the rigours of further appellate judicial scrutiny, others have simply reaffirmed the court’s reputation as one of the nation’s more vibrant judicial arenas.
Folabi Kuti SAN is a Partner in the law firm of Perchstone & Graeys, LP.