By Oluwapelumi Mojolaoluwa, Mofoluwawo, LLB, BL, LLM (UK)
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The National Industrial Court of Nigeria (NICN) sits at the junction of Chapter 4 of the Nigerian Constitution and the Nigerian Labour Act, as an impartial arbiter. As a special court clothed with the power to decide all disputes arising from the latter and disputes arising from the intersection of both laws, it often has to grapple with the challenge of enforcing procedure whilst simultaneously doing justice, and doing it efficiently. Two cases differently decided illustrate this challenge- Hope Bealeemabari Alagara v. SSS & Ors and Afamefuna Nwankwo v. Onitsha South Transport Co. Ltd. & Ors. Although the former is a ruling and the latter, a judgment, it is nonetheless instructive to examine the differing disposition of the court in both cases, to determine the expediency or otherwise of it all.
In Alagara v. SSS, a dismissed SSS officer challenged her dismissal for refusing to sing the national anthem. She brought the action via Originating Summons, a mode of commencement of action typically designed for instituting non-contentious cases involving settled facts or interpretation of written law, the Constitution, or other legal documents. Hope Bealeemabari Alagara, a member of staff of the State Security Service (SSS), was suspended and subsequently dismissed for disobedience to lawful order, discreditable conduct, and insubordination. The incidence that led to her dismissal was that she being a Jehovah’s Witness, declined to sing the National Anthem when asked to do so and while on maternity leave, as her religious beliefs prohibited her from singing it, though she showed respect by standing when it was sung or recited. She sued the SSS and some of its officers, and sought a declaration that her dismissal was unlawful, reinstatement, payment of salaries, and damages, inter alia.
The Defendants, however, raised preliminary objections which introduced severe factual conflicts. In fact, the commencement procedure came into question because the Defendants’ counter-affidavits and objections created substantial conflict of facts which the court decided could only be resolved by oral testimony. The defendant’s preliminary objections put forward the following arguments:
- That the suit was statute-barred according to the Public Officers Protection Act which stipulates that an action must be commenced within three months of the commission of the act complained of. They also contested the effective date of the Claimant’s dismissal.
- That the Claimant had not exhausted all internal justice mechanisms within the State Security Service Regulations before filing the suit.
- That the originating processes were not properly served on majority of the Defendants.
In response, the Claimant then filed a reply against their preliminary objection, as well as a further affidavit in support of her originating summons, and a written address. In further response, the defendants curiously filed a process titled ‘reply on points of law to Claimant’s written address in response to Defendants’ preliminary objection’ as well as ‘defendants’ further counter affidavit in opposition to the Claimant’s further affidavit, and a written address in support of Defendants’ further counter affidavit and in response to new issues raised in the Claimant’s reply. The defendants also filed a further notice of preliminary objection with an affidavit in support and a written address.
Given how contentious the case had now become at this early stage, the court decided that the matter could not be justly determined solely on affidavit evidence and that oral evidence would be required to resolve the conflicting facts. As such, it relied on Order 3 Rule 17 (2) of the National Industrial Court (Civil Procedure) Rules 2017, and ordered a conversion of the originating summons to a Complaint. Specifically, order 3 rule 17 (2) states:
‘Where in the opinion of the Court, a suit commenced by Originating
summons raises substantial issues and dispute of facts, the Court shall not
strike out the matter, but may order its conversion to Complaint and direct the
parties to file and exchange pleadings and conduct the trial of the case in
accordance with the Rules of the Court governing trial.’
Filing a Complaint i.e writ of summons would give parties the latitude to file and exchange pleadings, allow them call witnesses to give oral evidence and be cross examined by the other party. It would give each party ample opportunity to state their own case, and to counter the other party’s case hence, the court’s stance. Essentially, the court cured a procedural defect with this ruling, by insisting on compliance with its civil procedure rules, in light of the substance of the case. Form, because of substance.
Moving on to Nwankwo v Onitsha South Transport Co. Ltd, a case commenced by originating application, Mr. Afamefuna Nwankwo, a commercial driver for the Onitsha South Transport Company Ltd claimed that he was on duty one day when he heard that his wife had died. As a result, he travelled to Cross-River State to bring her corpse back to Anambra State for burial, keeping the company vehicle with him for about 50 days. He claimed to have told his employer to come and pick up the vehicle, but they failed to do so. When he finally returned to work on March 27, 2019, two officers of the company beat him up with bamboos, sticks, and punches, subjecting him to inhuman treatment, before dragging him to the police where he was detained from March 27, 2019, until April 11, 2019 for 15 days. He claimed the police refused him bail, insisting he must pay N750,000, the amount the company claimed he owed for the 50 days he was gone at N15,000 per day, before release.
The defendant company however denied they were ever notified of his wife’s death. They claimed that he, the Claimant, had absconded with the vehicle for 50 days, switched off his phone, and was untraceable, prompting them to report a case of missing vehicle and stealing to the police. They later found him on a tip-off using the vehicle for commercial activities. They denied beating him; that he willfully surrendered and was conveyed to the police station in the vehicle. They argued his 15-day detention was due only to his inability to produce a surety for bail, not because they demanded money. The key issue for determination was whether Mr. Nwankwo’s fundamental rights, his right to personal liberty and dignity of the human person, were violated by his employer and the police. He prayed the court for a declaration that his torture and unlawful arrest were illegal and asked for N900,000 as general damages for torture, inhuman and degrading treatment, N1,000,000 as general damages for unlawful detention, and a public apology. The defendant argued that reporting a crime is a civic duty and that they were not responsible for how the police handled the matter as they could not tell the police how to do their job; neither were they responsible for the unlawful detention.
The court had two issues to decide; the issue of jurisdiction and the merit of the claims. But a third issue introduced by the court suo motu was the issue of mode of commencement of the suit, an overleaf of the issue of jurisdiction. The question raised by the court was whether a violation of fundamental rights could be challenged at the NICN via the Fundamental Rights (Enforcement Procedure) Rules 2009 (FREP Rules), even though the NICN has its own distinct rules for commencement of action. While the NICN derives its non-obstante jurisdiction over labor-related fundamental rights from Sections 254C-(1)(d) and 254F-(1) of the Constitution(CFRN), thereby subjugating the authority of Section 46 CFRN and the corresponding Fundamental Rights (Enforcement Procedure) Rules 2009 (FREP Rules), the NICN Rules themselves have somewhat constrained the commencement procedure. Order 3, Rule 1 of the NICN Civil Procedure Rules 2017 provides for originating motions as a form of commencement but does not state what types of disputes may be brought via originating motions, whilst Order 3, Rule 2(b)states that suits concerning the interpretation and application of fundamental rights must be initiated by complaint and not Originating application which the Claimant had used. Here was a cause of action the NICN was clothed with power to adjudicate brought through the wrong form.
This called into question the competing ideals of form and substance. While form is exceedingly important in the litigation process as can be seen in Alagara’s case where substance dictated the form, the court here held that form must give way completely to substance towards the end of justice. Underlining this position is the NICN’s adoption of informal procedures due to the nature of its litigants who according to the court, ‘often personally litigate their cases and being generally uninformed workers, cannot be expected to be in the know of the nitty-gritty of procedures.’ As a result, the Court relies on its constitutional and statutory vires, derived from S. 254D-(1) of the Constitution and S. 12-15 of the National Industrial Court Act, combined with Order 1, R. 4 & 9 and Order 5 of the NICN Rules to either borrow the rules of any other court where its own rules are inadequate or jettison its own rules if they impede substantial justice. This is in line with Saude v. Abdullahi, Abacha v. Fawehinmi and; FRN & Anor v. Ifegwu, particlularly Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 419, B-C and, 422, G; which states that
‘…it would not matter by what manner that the application has been made, once it is clear that it seeks redress for infringement of the rights so guaranteed under the Constitution.’
Consequently, the NIC held that the commencement of the suit via the FREP Rules was proper because it allowed the Court to ‘more conveniently and efficiently adjudicate the case’. Moreover, the gravity of the rights alleged to have been violated due to the alleged torture, unlawful arrest and unlawful detention, outweighed any procedural irregularities. In arriving at this judicious position, the court relied on Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228 (SC) where the Supreme Court held that:
‘When there is no provision as to the procedure to be followed in enforcing the jurisdiction conferred, the plaintiff is entitled to bring the case in the usual form of an action and have it heard. This is because courts make less fuss about complaints based solely on adjectival law that tend only to impede the attainment of justice…’
It did not stop at that, it further relied on FRN & Anor v. Ifegwu (2003) LPELR-3173 (SC), an expansion of the position in Abacha v. Fawehinmi which restricted the flexibility of mode of commencement to only where there is vacuum, to say that:
‘The manner in which the court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating court process seeks redress for the infringement of the right so guaranteed under the Constitution. The court process could come by the Fundamental Rights (Enforcement Procedure) Rules or by originating summons: see Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387. That seems to underline the concerns in regard to redressing a contravention of a fundamental right by liberalizing the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.’
From the foregoing, the decisions in Alagara and Nwankwo may seem inconsistent; strict insistence on procedure in one case, relaxed application in the other. But in reality, both judgments reflect a judicial standpoint hinged on swift, fair and efficient dispensation of justice. The court will insist on procedural compliance as it did in Alagara v SSS where it serves the interest of justice and will afford parties fair hearing; but it will overlook procedural compliance as it did in Nwankwo v OSTC Ltd where that serves the interest of justice and especially in the face of serious human rights violations. In Alagara, the procedural rule which required pleadings where facts are disputed was upheld because the use of Originating Summons would have denied parties the opportunity to call witnesses and cross examine each other’s witnesses, to resolve the dispute in their filed affidavits. In Nwankwo v OSTC Ltd, the procedural irregularity was overlooked because enforcing rigid formalities would have compromised the claimant’s ability to seek redress for serious constitutional violations. Substance over form, and then substance regardless of form. All towards the end of justice.
Oluwapelumi Mojolaoluwa, Mofoluwawo, LLB, BL, LLM(UK) is a Nigerian lawyer and Principal at OM Livingstones & Co. She can be reached at houseoflivingstones@gmail.com and on youtube – Bar Talk with Ola.
Hope Bealeemabari Alagara -Vs- The State Security Service & 4 Ors (Suit No: NICN/YEN/59/2017)
Mr Afamefuna Nwankwo -Vs- Onitsha South Transport Company Ltd & 5 Ors (Suit No: NICN/EN/23/2020)
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