- Post 02 July 2012
- Last Updated on 03 July 2012
- By Ahaoma Kanu & Esther Egbe
Early this year there was a strike, if not the most popular strike, before then, there was a court order from the National Industrial Court (NIC) trying to stop the strike but it later went on. What I want to ask is this; don’t you think that the way labour brazenly went ahead and did the strike somehow belittles the National Industrial Court?
May be to start with, you will like to know who you are talking to. I am Justice Babatunde Adeniran Adejumo, I am the President of National Industrial Court and you want to talk on whether the court generally gave an order that the labour, that is NLC and TUC, should not embark on strike and still they went ahead on the strike and weather that belittles the court or not. I think before you get to that question you are supposed to know what does the court do and how does it do things that it does. Well, the National Industrial Court was established by the National Industrial Court Act 2006 and later, it was made a court of superior recognition by the third alteration to the Constitution 1999 that become operational on the 4th day of March 2011. If you look at section 7 of the National Industrial Act 2006 as well as section 2.54c to the third alteration to the 1999 constitution as amended. The court has the jurisdiction to entertain all matters relating to the work place; labour, employments, industrial related strike, lock out. All those being used as related to work place, starting from an employment and they are quite enumerated. When that issue came, a matter was filed before the court through the Attorney-General of the Federation, who is the chief law officer of the federation, that the labour union, that is the NLC and TUC, issued a communiqué and pasted it on their website that they will be calling their members out on strike and that all Nigerians should stockpile food in their houses because the strike will be total and indefinite and that the banks and businesses should not be allowed to open. The Honorable AG rushed to court asking the court to stop them from carrying that threat out pending when the motion on notice they have filed could be heard so that the parties would be given hearing. This matter was heard by a panel of three judges of this court of which I chaired; I chaired the panel, Justice Kanyip was a member and also Justice Esowe.
We looked at the motion and the affidavit supporting the ex parte application and discovered that it was true that the unions named in that motion have listed some things named in that motion that would happen and would not allow people to move and that banks would not work and so on and we came to the conclusion that before they get there on Monday, it is better for them to appear before the court so the court can hear them as well as the government side before the court would be able to do justice to that. We gave that order in that motion.
You see, in considering an ex parte, the motive behind ex parte order is to allow status quo ante to be maintained pending when the parties in that suit would be heard so that the court would then intervene. This court is established to ensure industrial harmony in Nigeria. In any country the world over, labour courts are like Industrial courts or whatever name it is called in different jurisdictions; they have them all over the world. The purpose of the court is not only to adjudicate between the parties before it or amongst the parties before it alone. The purpose is to adjudicate among the parties before it and to consider the consequential effect of its decision on the larger society; when you say the larger society, it is the Nigeria society. If you make an order, will it be only settle the issue between the parties alone? Or will go beyond that and to ensuring that there is fairness and justice; there is peace, industrial harmony for the generality of the people. That is one of the very crucial roles of a labour court of this nature. We looked at it, the way the labour unions proposed to go, that if they are allowed without hearing the other side and trying to see what the court could do, one it could lead to total paralysis of the Nigeria economy. Two, Nigeria as a country will suffer irreparable damages, the reputation of the country before the international community will be dented and not only that, some criminals could hijack the situation and use it in their own nefarious ways. So it behooves the court to ensure that all this damages are not allowed. Not only that, people will suffer untold hardship; for instance if you tell people to stockpile food in the house, that there would be no movement and that banks would not work, some people are not salary earners. They earn and live on a daily basis; it is what they earn when they go out to work that they will use to feed their families. If such people who have no money to stockpile food in their own homes are not allowed to go out and do what they know how to do lawfully, it would create untold hardship on their families and before you know it, many things will go wrong. That is one. Another is that people sell in their private homes, now if they sell and the banks are not operating, robbers and other level of criminals will have field days robbing them in their private homes or in their shops and take away whatever they have made. All these may lead to a state of lawlessness and hence, the court said they (labour unions) should come so that we listen to you and also hear from the government. And don’t forget, under section 20 of the National Industrial Court Act, the provision there is that the court will have the power to encourage the parties to settle amicably. If the parties are not appearing before the courts, how do we settle the issue amicably? Hence there was a need to make that order at that time to arrest a chaotic situation and save the order of the day. Now, coming to whether they obeyed or not, it is never the duty of the court anywhere in the world over to go out and start policing whether its order is obeyed or not. Once an order is made, it has been made; if you like obey or not, the provisions are there in the law books to handle the situation. And once a judge makes an order, he must not embark on a voyage of discovery to see whether his orders are obeyed or not. That becomes the duty of another agency of government who has that power to ensure that enforcement of laws and orders are made. So for this, we are not bothered whether they obeyed or not; ours is to make an order against any of the parties before the courts. Maybe I would explain to you that Nigerians misconstrued what really happened at that period; the AG came to court seeking an order to arrest that ugly situation of total strike, and total breakdown of law and order, the court did not make an order stopping anybody from a protest. A protest in law, so far it is a lawful and a peaceful one is a process of making government become aware of the displeasure of the citizens who have elected or appointed them to those things that government is doing that they do not like. They can protest, lawfully and within the law. So no court talk less of the labour court will ask the citizenry like the civil liberty organizations not to embark on demonstration. Even if it is not peaceful, it is not our responsibility that is not our jurisdiction, another court and another agency has responsibility of that. But what we are saying is that people want to embark on strike and when you look at the law, it’s so clear that the court shall have the jurisdiction to ensure and make order to see that people do not embark on strike or lockout, it’s not just strike; strike is by the unions why lock out is by the employer of labour. They too cannot lock out their employees. But before you go on strike there are procedures you ought to follow. If I may refer you to the provisions of section 254c it says, notwithstanding anything to the contrary to the provisions of section 251,257 and 272, containing in this constitution and any other law, the court has the jurisdiction to hear such cases that relate to the labour and adjudication shall be an exclusive jurisdiction and these includes (a) leading or connected with labour including trade unions, industrial relations and matters arising from the work place. The conditions of service including health, safety etc, that the court shall have the position to handle any matter relating or connected with the grant of any order restraining any person or body from taking part in any strike or lockout or any industrial relation or any conduct in contemplation or in furtherance of a strike, lockout or any matter connected therewith either lockout, either strike, either contemplation, either in furtherance of any of these, either lockout or strike; this court has the constitutional jurisdiction to deal with such matters.
Since the establishment of this court, how has the court fostered a very conducive atmosphere for labour, employers of labour and employees and what landmark judgments has the court delivered?
If you look at the Nigerian industrial relations atmosphere in Nigeria for the past couple of years, you see that the number of strikes have reduced because the parties know that there is a court where they can approach for justice against the unions or against the workers or against the government or any employer of labour. If you talk about landmark judgments, for instance, the Union Bank issue is another case people talk about. In the Union Bank issue, the NLC issued an ultimatum that they would going to picket the Union Bank Headquarters and branches throughout Nigeria. The bank rushed to court and asked us to stop them from picketing pending when they would be heard, both of them. They stated in their prayers that Union Bank is an ailing bank then of which the Central Bank was trying to bail out, that if this action by labour is allowed, that the action may lead to a total collapse of the bank and customers throughout the country will suffer. We looked at the application and discovered that the bank, yes, if you picket the Head Quarters of the bank and all the branches nationwide, one, the bank is an ailing bank the CBN was trying to ensure that the bank does not collapse so that Nigeria people don’t suffer. Now if we allow it to picket as they were proposing, it means that, one, many people will be ready to get out their money from the bank and the bank will collapse. Two, many customers of the bank throughout the country who have little money in the bank; some may be sick and would want to buy drugs; blood etc and may send people to the bank to collect money which they can use for their own survival. If all the banks are picketed, a lot of people who have little money to collect will not be able to access the bank and this will add an untold hardship. And not only that, what will be the fate of workers if the bank collapses? Even the workers who the union is trying to protect their interest will eventually suffer. Many people are international businessmen and they use Union Bank and may owe their customers in other countries some money of which they would want to pay through wire transfer and all that, if we allow the action of the union, what will be the fate of those businesses? So the court came to the conclusion that instead of picketing, wait; come let us hear both parties and try to settle the dispute. Some people may not like that but to me, it was a very good decision in the interest of the Nigerian economy. There was another case involving a government institution that wanted to sack almost 1000 workers and they workers rushed to court and asked that we should not allow them to sack until the issues are heard and settled. We issued an order restraining the government agency not to sack the workers like that until when we can hear both parties. There is also another case where a lot of pensioners came to the court saying that the government under a policy increased what they should be have been earning as pension and when they retired, it was peanuts and the government asked that a certain group of people should have theirs increased but the employers of labour in that sector of government tried to expand the number of people thereby reducing what they ought to have been paid. They explained that the policy was for pensioners who retired as from the 1990s upwards but the government was trying to include those who retired in the 1980s to the scheme. It meant that what these people take will go down because the number contemplated now is higher. They now said no, it was not the aim of the increment. They asked that we should stop them and acting on that, we stopped them. We told them that you cannot do that until we hear you. There are a lot of cases like that that we have settled; a lot of them. But recently, I read in the papers, though I am not concerned with newspaper publications, that in the oil sector, the National Industrial Court (NIC) has been encouraging employers of labour in the oil sector to punish people who are in the unions. But that is not the fact. We search our anti-labour practice because the constitution says that nobody should be allowed to embark on anti-labour or unfair practices. So we have done a lot to stabilize the issues concerning these. And if you listen to what Mr. President said after signing the Third Alteration on the fourth of March 2011, he said that one of the purposes for which the court was established is to stabilize the industrial sector to encourage both local and international investors to come in because they have a standard in their country and they would expect that standard here. And to ensure that the country prospers if there is industrial harmony, the economy improves. Don’t forget, we are judges; I have been a judge for the past 15 years now and I have sworn to uphold the law and the constitution, to do justice in accordance with the law without fear or favour, not to allow my personal interest affect my official conduct and my decisions. If all the judges have sworn to this then we cannot do anything contrary to derogate our integrities. But every day, any day a judge goes to the court room and comes out, the line of his enemies will be increased by one because somebody must lose while another wins. So every day your line of friendship diminishes while the line of your enemies elongates because somebody must lose.
The NIC also has jurisdiction on matters relating to environment conditions of the work place and all that. Now taking the oil spillages happening in the Niger Delta areas, can these matters be brought before your court?
Yes and no. Oil spillages divides into two; the work environment itself could be affected and the communities. That’s aspect of the communities is not for this court; it is for the Federal High Court but if I am working in a place and there is oil spillage somewhere and it affects that environment of work, the workers can come. Under the environment, according to section 7 of the NIC act, it is not conducive; maybe its slippery, it can cause health problems, you can approach this court to say this is happening in my work place. But if it is outside of the work place, we do not have that jurisdiction.
What is your reaction on the allegation PENGASSON made that the NIC is delaying matters in some cases?
I don’t join issues with people who comment because the Nigerian constitution gives everybody the right to freedom of expression. But when you are expressing your freedom of expression, it should be fair, it should be cautious and it should be reasonable. Now, PENGASSON said we are delaying cases without bringing proofs of the cases we are delaying. One of the areas of the law is that the court also appeals to is fair hearing. If a case is filed, the other side must be given fair hearing. There is a procedure and if any case is delayed by any of the judges, which I don’t know anyway, they have the right to write to me to complain; to state the number of the case, the facts of the case and to challenge. And if they feel judge is not handling a case well, they have a right to put me on notice. I have never heard a complaint from them or heard a company named or that of a judge. I have not heard any information in the form of notice or complaint that someone was paid. I can vow for my judges, there are not here to take money and will never do so; we are trying our best to make them as comfortable as they can be within the availability of funds. I know that cases are not easy to be taken once a judge has more than 100 cases in his court; he cannot duplicate himself and will do cases according to the procedures. If a case is pending and someone says he wants to file this or amend that, the judge cannot say no. They have never come out to be official but instead keep going to press and some journalist took the story and never bothered to get reaction from the other party according to the ethics of journalism and went to publish. That is gutter journalism and we will not lose focus.
What is the court doing in terms of generating awareness of its existence so that Nigerian workers will be aware that there is a court they can approach?
When the third alteration act was signed and passed by Mr. President, we produced, after being gazetted, about 10 000copies and distributed them to the trade unions, employers of labour, government agencies and many tertiary institutions as well as others interested to sensitize them and intimate them with the provisions of the act. We did not stop there; we organized seminars, workshops and symposiums across the country. We printed pamphlets that we distributed to a lot of people. We also did not stop there; we established divisions of the court and opened state registries where the court is not yet able to have a physical court presence due to scarcity of funds. We target having the court in the whole 36 states but right now, we have in about 16 states and in the other 20 states, we have registries there and we are sensitizing and educating people there. For instance, we sent books to the universities concerning the NIC; five copies each to all the universities across the country so that the unions and the students there will know. We also sent to the Law Schools and there are a lot of books that we are trying to make available to them. We are buying these books and distributing it because we want to make people know about the law and ignorance of the law is no defense. But due to scarcity of funds, we cannot go to the TV or radio media and you must have seen me on NTA One on One program; I have been a guest there for about two or three times, I also appear on Scale of Justice, another NTA program. Likewise, I do also educate people through AIT trying to sensitize the generality of the Nigeria people on what NIC is all about. Recently, Prof Agomo prepared a book entitled, Nigeria employment and Labour Relations Law and Practice. The author is a consultant to the International Labour Organization (ILO) on employment matters. We have been recommending the book to lawyers, to institutions and we have sent some copies to a lot of institutions. Anybody that needs that needs to know what NIC is all about needs to read that book. We have sent copies of the book to universities, colleges of educations, polytechnics, law school and a host of others because if people don’t know about it, how do they come and claim their rights? You see criticisms of the court do arise from ignorance; most people don’t know about the workings of the court. They perceive that this is the way it should go but a court has a way of operation. Also, a court of law does not solicit for cases; a court of law should not canvas for people to come and file, no. They file their cases based on the weight of facts and evidences, provable evidences and then you look at the law and come to a decision not minding whose ox is gored. But the issue here is, are people ready to take the advantage of the law? Or do they believe the law should be what they think it should be. There is a definite principle of law and once that law is law, you follow that law. We publicized in the newspapers of our state registries across the country to sensitize people to know where to go to file their cases as we are yet to be in every state. I think the court still needs time; the court has been here for some time, it’s about 33 years old but it was about nine years ago that I came here and I will say that started a new era in the court. Before I came we had fewer courts but in nine years, we now have 15 standard courts. We had about 127 staff then but today we have about 1200 staff, I think that we have made some progress.
One of the challenges of the conventional courts especially in the criminal justice system is that we see few judges handling a lot of cases and that has led to adjournments and increase in awaiting trial cases. Is this problem peculiar with your court? What challenges does the court face and prospects it has in the future?
The issue of file dockets which leaves a lot of cases unheard is peculiar to all courts in Nigeria starting from the Supreme Court, Court of Appeal, High Courts and even the NIC to also the Magistrate courts where it is even worse; I was a magistrate for 15 years so I can actually remember the situation. You see, what is causing this is that the number of judges is low; in Nigeria, we don’t have up to 2000 judges serving. Not up to 2000 including the Customary Court, Court of Appeal and Sharia courts, we are not up to 2000 servicing a population of about 160 million people. If you look at this statistics, you will see that there is a problem. Now, in the High courts, there are more than 3000 cases. We need to address this situation from so many angles, one, we need to talk to lawyers who will be asking for unreasonable adjournments and where you fail to give them such adjournments, they petition the National Judicial Commission (NJC) or start calling names. Two, we have to appeal to the judges ourselves that we should not allow lawyers and litigants to hold the court to ransom; we should be ready. We should be more ready to do the job than ever following the principle of not allowing lawyers and litigants to delay the handling of cases. But most importantly, the government has a lot of work to do; you cannot expect few judges to service millions of people. For instance, in this court today, we have only seven judges, plus myself making eight, servicing the whole country; all the ministries, all the parastatals , all the private sector and there are a lot of cases. Every week, we have not less than 80 cases and that is even because we are not too known. In a month, we have nothing less than 2500-3000 cases, now multiply that by 12 and you will have an idea what we are dealing with here and we are just eight judges. In about a year, I expect about 4000-5000 cases to be filed. There is no how a judge will sit in a week and take two cases and finish it; it is not possible because you will give interlocutory applications, motion to amend, etc. If you 10 cases per day, by the time you attend to all these, many issues come up in witnesses not appearing, etc. So in a week, you may not be able to finish five cases. It’s not possible. Now, if I have 250 cases per month, 3000 in a year and it’s divided by eight, you will get the number of cases one judge deals with and before those cases are handled, about more cases are filed. Before a judge finishes one case, 20 more are filed because it is a daily occurrence. People get sacked every day, people are disciplined every day in the work place and people challenge authorities’ everyday and this happens in public, government and private sectors. So this issue of the file dockets will continue to be until a situation whereby the government sits down and look at the problem. We can’t keep attributing blame to the courts, judges or lawyers, how many is the personnel doing the work? In Australia, we went there recently and we saw that that country with a population of about 25 million people had up to about 2000 judges including magistrate. But here, how many do we have and how many are we in population as a nation. So we need to focus on the judiciary and employ.
Talking about the challenges we face as a court, there are a lot of challenges. One, if you say a court like this should have jurisdiction on labour, its presence should be felt in every state. If not, people will have to travel from far to come and file their cases. Someone who has been sacked should be able to have his case heard without additional stress and expenses. The law needs to be amended so that the court will have jurisdiction in each state so that from your local government it will not cost you much to come and file your case. Because of the educational level in the country, we cannot ask people to file online; many people don’t have access to computers, internet and even electricity. We have all it takes to file online but how many lawyers have this access and can afford it talk less of the poor man who has just been sacked and knowing that this court deals with 80 per cent cases of poor people. These are challenges.
Training of staff, training of judges, all these require money if you really want them to work according to international best standards.
Another challenge is lack of awareness. People are yet to come to terms with the NIC even the courts themselves. Some courts have not yet understood why the NIC should be a superior courts talk less of having exclusive jurisdiction. In the world over, in countries like Germany, Spain, England, Spain and so on, they have these type of courts otherwise their economy wouldn’t grow. These are the challenges.
Having stated that, where are we now? We are making progress. If you look at us 9-10 years ago and then look at us today, you will know that we have moved from a dead-end to a very healthy end and we still have to keep moving on. If we had only one and a half court and now we have about 15 courts and about five that is ongoing, I think the court is moving. If from where we had a few personnel to having what we have now, trained a lot of them etc, I think we are making progress.
Now where are we going? I would say in the next five years, the court would have moved faster than where we are. In the next five years, I expect that the court would have its presence in every state of the federation so that people can access the court. And I expect that in another five years, the Nigeria people would have been more educated in industrial issues to understand the court. Industrial education should be made part of the curriculum of secondary schools so that they teach people what industrial relations is; what is work place, work ethics and rights of workers. I think in the next five years, the number of judges in this court must have been increased seriously because without the judges, this court cannot deliver on its responsibilities. If we don’t want NIC to suffer the fate of the High courts in file dockets, then judges must be increased to an extent that the numbers of judges are reasonably enough.
How has it been being the President of this court so far?
It has not been easy; I cannot remember the last time in the past nine years that I slept earlier than 1 a.m. This court was described as a dead end. I will give you an example; if a child is crippled and cannot work nor do what his peers can do and you want to perform a miracle for that child to walk, the vigil must be very intensive for it to be possible. I was advised not to come here because it is a dead end but I said somebody must make a dead end a living end. Having known the degree of challenges before me, I had to work extraordinarily. I will tell you, in this life if you want to achieve anything above your peers, you must put in something extra. That is why it has not been easy. Files don’t stay on my table; I have overall control of the court and the supervision of the administration. It means statutorily, if there is a shortfall within the court system, I cannot exonerate myself. It is a serious matter but where there is a will, there is a way. A lazy man cannot work with me; I have been privileged to have worked under Justice Uwais and anybody that has worked with the old man cannot afford to be a lazy person. I know my watch word; procrastination is a thief. Whatever you can do now, do it; the next second might be too late. I don’t believe something is impossible, do it and do your best. The challenges are still on and we will work harder. In 2008, the Federal Government recognized me with a national honour, I was made an Officer of the Federal Republic (OFR); that shows that the government is watching. Sen. Mantu wrote something about me after the third alteration that I consider an impetus to me; he said that I should continue to work because people out there are noticing what we do because one day we will no longer be there but will be remembered by what we left as legacies. If I look back every day, I am happy because I build this court and our Head quarters are still ongoing in Abuja. If all these little progresses are recorded during my tenure, I am happy and shall still pray God gives me life to achieve more.