The President of the National Industrial Court (NIC), Hon. Justice B.B Kanyip has dismissed a suit filed by the Lawyers Alert Initiative for the Protection of the Rights of Children, Women and the Indigent, seeking an order of Court to compel employers of labour (Ministries, Agencies and Departments, including the Private Sector) to develop and register HIV & AIDS workplace policy.
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This is contained in the Judgement of the Court dated 10th day of June, 2020 which was made available to TheNigeriaLawyer (TNL).
It would be recalled that on the 21st day of February 2019, the Applicant through an Originating Summons in Suit No. NICN/ABJ/37/2019, had earlier on prayed the Court for the following four orders:
(1) A declaration that employers of labour (Ministries, Agencies and Departments, including the Private Sector) are bound to develop and register HIV & AIDS workplace policies.
(2) A declaration that the respondent is bound to ensure compliance with the provisions of section 21(1) (2) of the HIV and AIDS (Anti-Discrimination) Act, being the oversight body saddled with the responsibility of ensuring compliance with the Act.
(3) An order of court directing the respondent to ensure that employers of labour (Ministries, Agencies and Departments, including the Private Sector) develop and register HIV & AIDS workplace policy within 30 days of this order.
(4) And for such further orders as this Honourable Court may deem fit to make in this case.
Meanwhile, the Court at its first sitting on 3rd day of June, 2019 raised the question whether the Applicant has the right to institute the action in which the Court called on the parties to address it in writing on the issue.
However, the 1st Respondent , Attorney General of the Federation(AGF) greeted the suit with a preliminary objection which was premised on two grounds that, the Applicant has no cause of action and that the suit was filed without following due process prior to being instituted .
Therefore, the 1st Respondent argued that the Applicant on the strength of the evidence before the Court has not disclosed any reasonable cause of action to warrant the matter being heard and more so, the Applicant has failed to comply with the condition precedent under Section 26(1) of the HIV and AIDS (Anti-Discrimination) Act 2014, which requires any prospective Applicant that intends to institute an action under the Act to first write the AGF.
In opposition to the preliminary objection, the Applicant contends that the suit before the Court is a fundamental right action in the interest of the public and that the 1st respondent’s failure, negligence and refusal to compel the employers of labour to register their HIV and AIDS Workplace Policy with the 2nd and 3rd respondents as per section 21 of the HIV and AIDS (Anti-discrimination) Act 2014, has resulted in monumental damages which necessitated the suit and therefore, it has a right to institute an action on the strength of the fundamental right enforcement procedure rules. Also, it contends that the condition precedent under section 26(1) of the Act is inapplicable to it.
Having listened to the submissions of the both parties, the Court heard the preliminary objection alongside the originating summons because in the view of the Court, “the issues they raise coincide with each other.”
Firstly, the Court ruled that the notion of the Applicant that the provision of the fundamental right enforcement procedure rules compel the reliefs it seeks is incorrect.
“The reference by the applicant to section 24 of the Fundamental Rights (Enforcement Procedure) Rules 2009 as imposing a duty compelling public and private employers of labour having five or more employees to adopt and lodge their HIV and AIDS Workplace Policy with the 2nd and 3rd respondents is most unfortunate. This is because the Fundamental Rights (Enforcement Procedure) Rules 2009 did not by any stretch of imagination impose any duty compelling employers of labour to adopt and lodge their HIV and AIDS Workplace Policy with the 2nd and 3rd respondents.”
In addition, the Court ruled that the Applicant has not disclosed sufficient reasonable cause of action to justify the suit. The Court held:
“Additionally, did the applicant disclose any cause of action or reasonable cause of action in this suit as filed?
“This Court had noted that the applicant did not disclose the locus it has to bring this action as it did. The applicant is not an employee or an employee or ganization (trade union) to justify it filing this action as it did. Neither did the applicant disclose what injury it suffered to warrant it coming to court as it did. Lastly, that the questions raised for determination and the reliefs prayed for suggest that what have been raised are hypothetical and academic issues devoid of any real injury to warrant filing this action.”
Significantly, the Court further noted that if the grouse of the Applicant is to enforce a fundamental right action then, the National Industrial Court does not have the requisite jurisdiction under the Law to entertain such matter.
“If the applicant’s case is a fundamental rights case and it is relying on the Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to section 46 of the 1999 Constitution, then the applicant is in the wrong Court.
“Section 46 of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to it does not contemplate the National Industrial Court (NIC).” The Court held.
Furthermore, the Court ruled that the Applicant has not placed sufficient evidence before it to ascertain some of the claims it alluded to.
“[T]he applicant argued that the 1st respondent’s failure…has resulted in monumental damages. And that the “damages” refers to the HIV discrimination at workplace, which has become rampant and which has led to the dismissal of employees who are HIV positive.
“The question is: who are these employees that have been dismissed because of their HIV status? The Court was not told.” The Court held.
“So, as far as this suit is concerned, there is no evidence before the Court showing the victims or culprits of discrimination on the basis of HIV status as the applicant argues. The end product is that this suit remains incompetent as filed. And I so hold.” The Court added.
More significantly, the Court ruled that the Applicant is not a registered trade union and thus, it lacks the competence to bring the suit as it did on behalf of HIV employees or workers.
“In the instant case, the applicant is not a trade union…So not being a registered trade union, the applicant has no business coming to this Court as a claimant/applicant as it did. It has no locus whatsoever to be before this Court. I so hold.” The Court held.
On the rationale for the above position,the Court clarified that:
“Except for subject matter based jurisdiction, this Court has consistently held that bodies not registered as trade unions have no locus filing any suit as claimants on behalf of workers or employees.
In other words, only registered trade unions have the locus to come before this Court on behalf of workers. In this regard, associations that are not registered as trade unions but are nevertheless registered under some other law such as under Part C of the Companies and Allied Matters Act (CAMA) and so have the capacity to sue and be sued, are denied the right of audience at the NIC”
Besides, the Court clarified that contrary to the contention of the 1st Respondent, the alleged requirement to notify the AGF before instituting an action under the Act is unfounded. In the view of the Court:
“What I gather from this is that the requirement of notifying the Minister of Justice of an impending suit is for purposes of determining whether to conduct an inquiry under section 24 or not.
“It is not a pre-condition for bringing the suit itself as the 1st respondent seems to think. Failure to notify the Minister of Justice of the impending suit cannot affect the competence of the suit. In the instant suit, therefore, the failure of the applicant to notify the 1st respondent of this suit does not make this suit incompetent. I so hold.”
“[The wrong complained of must have “directly affected” the individual or the group. How has the applicant been directly affected in this suit? The Court is not told.” The Court added.
Also, the Court ruled that the Applicant failed to show by evidence that there exists employers of 5 or more employees who have failed to adopt the Work Place Policy on HIV/AIDS in order to warrant the grant of the reliefs.
“In like manner, the applicant in the instant suit did not reveal the employers employing 5 or more persons in order to show the obligation to adopt the workplace policy on HIV and AIDS. This failure on the part of the applicant is fatal to its case, which case is liable to dismissal. I so hold.” The Court held.
Finally, the Court ruled that the Applicant’s suit is a mere academic exercise and dismissed the suit with a cost of #300,000 to be paid within 30 days of the delivery of Judgement.
“On the whole, the claimants did not prove their case. What the claimants put before the Court as their case is nothing but one that is in the main speculative, conjecture, academic and hypothetical…The instant case is accordingly liable to be dismissed. It is hereby dismissed. Cost is put at Three Hundred Thousand Naira (N300,000.00) only payable by the applicant to the 1st respondent within 30 days of this judgment.” The Court held.
Meanwhile, the other parties in the suit are the Minister of Labour & Employment and the Ministry of Labour & Employment.
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