DOES THE NICN HAVE THE POWER TO APPLY UNRATIFIED INTERNATIONAL LEGAL INSTRUMENTS RELATING TO EMPLOYMENT?

The application of what is constitutionally expressed as “international best practices in labour” and “international labour standards” by the National Industrial Court of Nigeria (NICN) has been the subject of serious controversies. In recent times, the NICN has been consistent in its idea of upholding and applying the principles of international best practices and international labour standards in resolving employment-related cases. This is notwithstanding the weight of legal arguments being fired from different angles in a bid to shake its resolve. One of such arguments is that the NICN lacks the jurisdiction to apply any legal instrument in the form of international convention, treaty, or protocol unless it is ratified (adopted and signed), and then domesticated (re-enacted by local legislation) in Nigeria.

In Suit No: NICN/YEN/48/2016: Joseph Johnson Osayande v. SPDC, the NICN, Port Harcourt Division, hit what appears to be the last nail on the head regarding this issue. In a well-considered Judgment delivered on 20 April 2023 by Honourable Justice N. C. S. Ogbuanya, the Court reinforced the position that the principles of international best practices and international labour standards have come to stay. But it will interest you to read how the Court navigated what I consider a huge test before arriving at its conclusion. Before then, let’s take a look at what the Constitution says.

What does the Constitution say?

The relevant provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are sections 12(1), 254C (1) (f) & (h) and 254C (2).

Section 12(1):

No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

Section 254C (1) (f) & (h):

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- (f) relating to or connected with unfair labour practice or international best practices in labour; (h) relating to, connected with or pertaining to the application or interpretation of international labour standards…

Section 254C (2):

Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.

The Issue

In Osayande v. SPDC, the NICN was called upon to decide whether the Court can, in the determination of the suit, apply the International Labour Organization (ILO)’s Termination of Employment Convention (C158) of 1982 (“ILO Convention 158 on Employment Termination”).

Conceptual Clarifications

The Court took time to consider this issue. In doing this, the learned trial Judge, Ogbuanya J., had to make some conceptual clarifications which set the pace for not only answering the question, but also inspiring the reasoning behind the answer the Court arrived at.

Ratification and Domestication

To ratify an international legal instrument by a country means to adopt and sign that instrument as a member of the international organisation in question. Meanwhile, to domesticate such international legal instrument means to re-enact it by local legislation.

The Court was of the opinion that section 12(1) of the Constitution reproduced above contains general provisions which apply to all forms of treaties or international legal instruments; while section 245C (2) (also reproduced) contains specific provisions which apply only to international instruments relating to labour, employment, workplace, industrial relations or matters connected to these. Ogbuanya J. reasoned:

The modifying impact of S. 254C (2) on S. 12 (1) of the Constitution is clear, to the extent that it excluded the operation of S. 12 (1) on issues covered by S. 254C (2), being also the later provision.

Relevance of the distinction:

You may be wondering the relevance of the above distinction. The Court was quick to show this. According to Ogbuanya J.:

While international instruments not covered in S. 254C(2) must not only be ratified but also domesticated pursuant to S.12(1) of the Constitution, the international instruments covered in S.254C(2) of the Constitution are applicable by mere ratification by Nigeria, and thus, have no need for domestication.

Therefore, international instruments relating to labour or employment ratified by Nigeria can be applied by the Court even if not domesticated by way of re-enactment.

Direct and Indirect Application; Ratified and Unratified

Before you are tempted to conclude that unratified international instruments relating to labour or employment is inapplicable, you need to see yet another distinction drawn by the Court.

The Court held that ratified international instruments relating to labour or employment can be directly applied by the Court; while unratified international instruments relating to labour or employment can only be indirectly applied by the Court in the interest of justice.

In applying the above principles, the Court had to decide the legal status of the particular international legal instrument which the Claimant sought to rely on in the case. This was the ILO Convention 158 on Employment Termination, Article 4.

The Court found that the ILO Convention 158 on Employment Termination has not been ratified by Nigeria. The Court relied on the evidence of one Charles Yoila (a Legal Practitioner and Deputy Director, Directorate of Legal Services, National Assembly, Abuja) who appeared as Subpoenaed Witness from the National Assembly, and testified as Defendants’ Witness No.3 (DW3).

Nigeria is a member of ILO since 1960 and has ratified about 40 international labour Conventions. But as found by the Court, the ILO Convention 158 on Employment Termination is not one of such ILO Conventions ratified by Nigeria.

The Court however was of the position that the Court can indirectly apply the ILO Convention 158 on Employment Termination relying on the provisions of section 254C (1) (f) & (h) which empowers the Court to apply the principles of international best practices and international labour standards. The principles are likened by the Court to common law principles which evolved over time. Thus, “being a harbour of principles and best practice of international labour standards, S.254C (1) (h) and (f) is quite different from that of S.254 C (2), which deals with codified instruments.”

How the NICN applies unratified instrument

How the Court intends to indirectly apply unratified international legal instrument such as the ILO Convention 158 on Employment Termination is what follows below. The reasoning of Ogbuanya J. is compelling and it’s worth quoting in full:

Thus, in a concerted search for appropriate principle to use to resolve a matter under S.254 C (1) (f) and (h) of the Constitution, this Court is therefore not precluded from using any labour-related international instrument even though not ratified, the only caveat, being that such unratified legal instrument (convention, protocol, recommendation) is not to be presented as if it is being directly applied. Rather, its principles can be lifted and applied under S.254 C (1) (h) and (f), instead of quoting it as if directly applicable under S.254 C (2) of the Constitution. This is the subtle difference in application of ‘unratified’ vs. ‘ratified’ Conventions in the evolving labour law jurisprudence. Thus, if it involves a ratified Convention, the Court is obliged to apply it directly and rely on S.254C (2) of the Constitution, but if unratified, the Court only needs to use the principles enunciated in the legal instrument, as it is not to be directly cited, but the principles merely lifted, and such an instrument can be mentioned merely as to reference the codified instrument(s) the principle(s) were lifted from.

Thus, the Court held that it has the jurisdiction to adopt and apply the principles of employment termination set out under Article 4 of the unratified ILO Convention 158 on Employment Termination pursuant to section 254C (1) (f) & (h) of the Constitution.

Conclusion

What I perceive from this Judgment is that it appears nothing can separate the NICN from considering and applying principles of international best practices and international labour standards to employment cases. This is irrespective of the source. See other cases such as Ebere Onyekachi Aloysius v. Diamond Bank Plc (2015) 58 NLLR (Pt. 199) 92 and Bello Ibrahim v. EcoBank Plc (Suit No. NICN/ABJ/144/2018).

In support of the Court’s position, I believe that one of the exciting developments in Nigerian Labour Law is the firm determination of the NICN to always recognise and apply international best practices and international labour standards to employment matters in deserving cases.