Nigeria: Nigeria Employment Law Review

Last Updated: 20 January 2017
Article by Olawale Adebambo, Folabi Kuti and Ifedayo Iroche

I INTRODUCTION

Employment law in Nigeria is not founded on the provisions of a single statute. Rather, it is dispersed in different legislation that together provides the framework. While there is an unsettled discussion as to whether the Labour Act (LA) extends beyond unskilled and manual workers, it nonetheless remains the governing law for labour matters.

Nigerian law allows freedom of contract in upholding and binding employers and employees to their agreements. There are also various statutory provisions of which parties must take cognisance when contracting; the laws regulating pensions and tax for instance, are not within the scope of contractual freedom.

Section 20 of the Trade Dispute Act (TDA)1 establishes a specialised court, the National Industrial Court (NICN), with exclusive responsibility for handling employment-related disputes; the Constitution of the Federal Republic of Nigeria 1999, as amended (CFRN)2 further endorses the NICN's authority and jurisdiction. The Industrial Arbitration Panel (IAP) also set up by the TDA is responsible for settling any dispute referred to it by the Minister of Labour and Productivity (the Minister). Any objection to an IAP award is taken before the NICN. Appeals from the NICN lie as of right to the Court of Appeal on questions of fundamental rights contained in Chapter IV of the CFRN in relation to matters under its jurisdiction.3

II YEAR IN REVIEW

Sole proprietorship remains attractive to the Nigerian populace in view of the mismatch between the rate of unemployment and availability of paid employment. Statistics reveal that, in terms of the age distribution of owners of such enterprises, 93.3 per cent are aged 36 and above, while the 15–35 age group accounts for 6.67 per cent.4 An analysis of some 5,000 enterprises (4,615 with legal status) in a Report of the Nigerian Social Statistics Report produced by the National Bureau of Statistics in the year to end 2012, show the dominant business structures in Nigeria:5

The 2012 Report also presents a rundown of industrial disputes between 2004 and 2008. In 2004, there were 36 disputes; this increased to 189 in 2006 and almost 300 in 2008. In 2004, 26 of the disputes led to strike actions, compared with 93 in 2008. A total of 127,377 workers were involved in the disputes of 2004 whereas in 2008, 868,907 workers went on strike. Overall, 2.63 million man-days were lost in 2004, compared with 8.97 million in 2008. Community, social and personal services recorded the highest number of disputes at 231,067.6 A number of employment-related disputes relate to trade unions and collective bargaining agreements (CBAs); whether these are a mandatory requirement and their enforcement.

III SIGNIFICANT CASES

With the mandate given to the NICN to consider and apply best international labour practice when adjudicating on matters within its jurisdictional competence,7 2014 saw a significant number of cases handed down by it highlighting the need for a constant interplay of equity and fair play in the workplace.

i Protection of employees in cases of unfair labour practices

The facts of Mr Shittu Habib v. Coral International Limited8 and Abel Abel v. Trevi Foundation Nigeria Limited9 present interesting examples of the NICN intervening to afford equity to workers injured in the course of their work where the employers, in an apparent bid to avoid liability for compensatory damages, contended that the workers were not under their employment as at the time of the accident. The court, in both cases, noted that even though the claimant did not show any letter of employment, a contract of employment could be properly inferred from the conduct of the parties; in the Abel case, the fact that the claimant had been doing some work for the defendant for which the defendant paid an 'allowance', coupled with the issuance of a work identity card.

The court further invoked its equitable jurisdiction to assist the hapless employee in the Habib case by awarding monetary compensation to enable him obtain surgery to remove metal from his leg.

Also worthy of note is the commendable effort of the NICN at expanding the hitherto seemingly inflexible principles of common law (deeply engrained in the nation's labour jurisprudence) to accommodate far-reaching results for the aggrieved employee. Where it was established that an employer, without just and established cause, impugned the integrity of an employee and based on this impugnment, went ahead to peremptorily terminate his employment,10 the NICN not only condemned the act as an unfair labour practice, but also held that such a detestable practice cannot be adequately compensated by the right to payment of a month's salary in lieu of notice which the wrongfully terminated employee would ordinarily have been entitled. Relying on applicable provisions of the CFRN and the National Industrial Court Act 200611 that enable the Court to award damages as a relief for the unfair labour practice of unfair dismissal and further stating that the Court can take guidance from the more elaborate provisions of foreign statutes as to appropriate remedies when a proof of unfair dismissal is established, the court awarded the claimant five months' salary as general damages, in addition to one month's salary in lieu of notice.

In The Registered Trustees of Union Bank & Anor v. Union Bank Of Nigeria &Ors,12 the court held that as the practice of payment of a 13th month (ex gratia) salary had carried on uninterrupted for 23 years, it had become a custom between the parties, such that a party could seek its enforcement through judicial process.

Giving lucid conceptual clarifications on the power of the employer to suspend or dismiss an employee; the legal consequences of 'suspension'; and when an allegation of conflict of interest can be made against an employee, and the corresponding duty on the employer to establish the allegation of conflict against the dismissed employee, the court in Mr Peter Olasunkanmi Atoki v. Ecobank Nigeria Ltd13 held that the defendant bank failed to establish the conflict of interest and professional misconduct against the claimant to its satisfaction.

Despite the excitement of a new process for settling labour grievances that is arguably pro-employee, it is instructive to mention that the cases of Awodusi Gbenga & Ors v. Total Data Limited14 and Mr Osamota Macaulay Adekunle v. United Bank for Africa Plc15 do not necessarily support this position.

In the former case, the claimants were employed under individual and separable contracts with, inter alia, differing salaries and emoluments and conditions of service. Only the first claimant was called to testify. The court had to invoke its equitable jurisdiction to rely on the documents 'front loaded' but never tendered in evidence16 to avail the fourth claimant of the relief sought on the substantive suit. There was no such document before the court to avail the remaining 142 claimants of any relief. The court held that: 'Failure of the other Claimants except 1st and 4th to lead evidence in proof of their claims has fatally damaged same [...]. The claims of the 1st and 4th Claimants succeed in part while those of the other claimants fail and are dismissed accordingly.'

In the Osamota case, the claimant only sought declaratory reliefs, which by law, cannot be executed, being merely declaratory as to the rights and obligations of parties. But that was not the only pitfall. The specifics were not clearly stated or established. The Court noted disapprovingly that even though the claimant sought a declaration that he was entitled to 'all his entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office' from 17 September 2009, when he was suspended, to the date of the judgment, those were not shown in specific terms: 'I must stress that since the claimant's "entitlements, salaries, allowances, bonuses, emoluments and other perquisites of office" have not been proved before this Court, this Court cannot make any order in their regard.'

ii Jurisdiction

The circumscribed jurisdiction of the NICN as an exclusive labour dispute resolution forum came up for consideration in a few cases in the year under review. In many decisions on this point, the NICN reiterated that its prescribed jurisdiction does not extend to matters with claims dealing with tax, pensions and allied issues that the aggrieved employee often claims as ancillary to his principal claims. In Miss Odiette Hope v. Jopa Energy Ltd,17 the court declined the invitation to exercise jurisdiction over a tax related relief contained in the claim before the court.

In Sir HUC Chukwudire & Ors v. Governor of Imo State & Ors,18 the NICN also had an opportunity to affirm its inelastic jurisdiction as not extending to tenancy-related issues. The NICN has similarly refused to adjudicate over matters involving contractual relationships between an independent contractor and the hirer.19

Non-compliance with a condition precedent to the court exercising jurisdiction on a relief conferred on an employee under the Employee's Compensation Act 2010 was successfully raised and argued in Mr Mashood Ilupeju v. PZ Cussons Nigeria Plc.20

iii The final instance court

A litigant who is not satisfied with the decision of the NICN can only appeal as of right where the decision relates to questions of fundamental rights as contained in Chapter IV of the CFRN or in criminal cases where they relate to matters upon which the NICN has jurisdiction. Appeal in other matters shall only lie from decisions of the NICN to the Court of Appeal as may be prescribed by an act of the National Assembly and with leave of the Court of Appeal.

Click here to view the full article

Footnotes

1 Chapter T8, LFN 2004.

2 Section 254C (2).

3 Section 243 (2) of the CFRN. 4 National Bureau of Statistics website: Job Creation Survey Report (www.nigerianstat.gov.ng/ pages/download/186).

5 Ibid.

6 National Bureau of Statistics website: Social Statistics Report in 2012 (www.nigerianstat.gov. ng/pages/download/170).

7 Section 245C (1) (f ) of the CFRN 1999, as amended.

8 Unreported suit No: NIC/PHC/79/2013 delivered on 26 June 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=625); The NICN held that an employee need not necessarily prove his employment by a written employment letter to maintain a claim against an employer.

9 Unreported suit No: NIC/PHC/55/2013 delivered on 26 June 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=626).

10 Unreported suit No: NICN/AB/03/2012 Godwin Okosi Omoudu v. Prof Aize Obayan & anor, judgment delivered on 10 October 2014 (http://judgment.nicn.gov.ng/cont-dtl. php?contC=694).

11 Section 254D [2] of the 1999 Constitution [as altered] and Sections 14 and 19 [d] of the National Industrial Court Act, 2006.

12 Unreported suit No.NICN/LA/555/2012, judgment delivered on 17 October 2014 (http:// judgment.nicn.gov.ng/cont-dtl.php?contC=702).

13 Unreported suit No. NIC/LA/103/2011, delivered on 12 June 2014 (http://judgment.nicn. 13 Unreported suit No. NIC/LA/103/2011, delivered on 12 June 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=651).

14 Unreported suit No: NICN/LA/490/2013, judgment delivered on 24 August 2014 (http:// judgment.nicn.gov.ng/cont-dtl.php?contC=677).

15 Unreported suit No: NICN/IB/20/2012 judgment delivered on 21 May 2014 (http:// judgment.nicn.gov.ng/cont-dtl.php?contC=616).

16 The front-loading system is a requirement under the High Court Rules designed to ensure full research and knowledge of the facts of a case, with processes relating thereto and full preparation of evidence being brought to the attention of the court before the hearing of a suit. Both parties are required to file alongside the pleadings certain supporting items, ensuring full and upfront disclosure of their respective cases.

17 Unreported suit No: NICN/LA/408/2012, judgment delivered on 31 March 2014 (can be accessed at http://judgment.nicn.gov.ng/cont-dtl.php?contC=579). Similar decisions were handed down in Ganiyu Kolapo Rafiu v. Sara Foods Ltd, Unreported suit No: NICN/ LA/388/2012, judgment delivered on 30 September 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=579); Mr Henry Nwosisi v. Bridgeways Global Projects Ltd, Unreported suit No: NICN/LA/147/2013, judgment delivered on 9 October 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=641); and Ms Edith Ejiogu v. Mainstreet Bank Estate Company Ltd, Unreported suit No: NICN/LA/48/2013, judgment delivered on 9 June 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=579).

18 Unreported suit No. NIC/OW/07/2013, judgment delivered on 30 June 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=635).

19 Unreported suit No: NIC/LA/294/2012, judgment delivered on 6 May 2014, (http:// judgment.nicn.gov.ng/cont-dtl.php?contC=618).

20 Unreported suit No: NICN/LA/406/2012, judgment delivered on 29 April 2014 (http://judgment.nicn.gov.ng/cont-dtl.php?contC=592).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions