IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: WEDNESDAY APRIL 17, 2024
SUIT NO: NICN/EN/35/2021
BETWEEN:
ENGR. CHIBUZOR ALBERT AGULANA.………………..CLAIMANT
AND
DR. FABIAN OKONKWO……………………..………….DEFENDANT
APPEARANCES:
1.
O. S. AKEGOR, HOLDING THE BRIEF OF G.E. EZEUKO SAN, – FOR THE CLAIMANT.
2. ADETUNJI OSO – FOR THE DEFENDANT.
JUDGMENT
INTRODUCTION
COMPLAINTcommenced this suit
November 12, 2021 and it was accompanied with Statement of Facts
[SF], in which the following reliefs were claimed:
1.)
N400,000,000 (Four Hundred Million Naira) as damages for libel.
2.)
N200,000,000 (Two Hundred Million Naira) as exemplary damages.
3.)
10% Interest on the judgment sum till the date of payment of the
judgment sum.
4.)
AN ORDER directing and compelling the defendant to retract the said
libelous statement and tender a written public apology to the Claimant,
published in three National Newspapers to wit: The Day, Vanguard and
Daily Sun Newspapers and file the said publication in an affidavit to
be deposed by him in court. The said Newspaper publication should be
read publicly at the PRODA, Federal Ministry of Science, Technology and
Innovation and a video of same to be circulated on various social media
platforms.
5.)
AN ORDER OF PERPETUAL INJUNCTION restraining the defendant from further
defamatory statement and publications against the claimant.
Against the above, the defendant filed Statement of Defence
and Counter Claim
[SD&CC] 7 th December 2021, to
which the claimant replied by
Claimant’s Reply to Statement of Defence and Counter-Claim of the
Defendant
[RSD&CC] filed 31 st March 2022.
Thus, pleadings were completed and issues joined. Let me now go to summary
of the pleadings.
SUMMARY OF THE PLEADINGS
A: Summary of the SF
The claimant pleaded that, he was an employee of
Project Development Institute
(PRODA) Enugu and that; his employment had
statutory flavour by virtue of the Federal Service Rules 2009
[FSR] and other instruments. He pleaded his
unblemished work trajectories and his towering academic achievements
together with his good public image. He pleaded the nexus of the defendant
with PRODA as the Director-General [DG]
and the malice of the defendant towards him and that; on 27 th
August 2021, the defendant wrote a dismissal letter addressed to him, which
contained defamatory statements and had it published to diverse third
parties within the workplace and to his business associates and the general
public, by pasting same on conspicuous places in the workplace and that,
all the accusations verging on crimes and dishonesty made therein were
false because, no court had ever convicted him and neither was he invited
to any panel or queried on the allegations raised in the dismissal letter.
The claimant pleaded that, the directors of the company he was alleged to
have extorted wrote to categorically deny ever making a complaint to the
PRODA. He pleaded that the defendant lacked the vires to write the
dismissal letter as at the time he wrote it, the Board having been dissolved
at the material time. He pleaded that he was not in office during
COVID-19
Pandemic in line with the directive that, officers of his rank work
from home and that besides, his trade union was equally on strike within
this period, while no letter of posting was served on him. The claimant
pleaded that, instead of serving the dismissal letter on him personally,
the defendant maliciously pasted it on conspicuous places in the workplace
with the intent of defaming him and thus, negatively impacted his standing
as a civil servant. He pleaded that by these, he has suffered injuries and
that all attempts to make the defendant to retract the said malicious
publication, the defendant had been unyielding and maintained the malice
aforethought. He pleaded he therefore filed this action with the reliefs
claimed. That ends the SF, I move to summary of the
SD&CC
.
B: Summary of the SD&CC
The defendant counterpleaded paras 2, 4, 5, 6, 8, 9, 10 & 14 of the
SF that, the governing board of the defendant ordered the defendant
to issue the claimant a query on 31 st May, 2021 for absence from
duty without leave and, the claimant replied it 27 th June 2021
and that, the defendant dealt with the claimant in his official capacities
honestly, in good faith, within the scope of his official duties and
without malice. The defendant further counterpleaded para 4 of the
SF
that the dismissal letter was never published to the claimant’s associates
or the general public, but only to those in the line at the workplace that
needed to be copied officially. The defendant thereafter counterpleaded
justification, fair comment and privilege and gave the particulars. The
defendant also counterpleaded that the claimant was invited to appear
before the Board after his reply to the query and he failed and that; he
was accordingly dismissed in line with the order of the Board.
The defendant also counterpleaded that the claimant had equally sued the
PRODA’s Board and the defendant herein jointly in another suit at
the Abuja Division of this Court on the same set of facts, which showed
that, he knew the defendant herein acted as agent of the PRODA.
The defendant counterpleaded that the Board was extant at the times
material to the cause of action herein. The defendant counterpleaded
against the jurisdiction of this Court to entertain this action. On the
basis of the foregoing, the defendant counterclaimed for frivolities,
embarrassment and irritation caused by the abuse of process and the cost of
defending the frivolous suit. Thus ended the SD&CC. I move to
the RSD&CC.
C: Summary of RSD&CC
The claimant replied on the issue of non-existent of the
PRODA Board
, stoppage of salary and malice at the material time by pleading a letter
dated February 07, 2022. The claimant replied the issue of double suits on
the same issues that, the second suit was a collective action by all the
staff of the defendant on the abuse of power by the defendant, which had
been attended to, particularly in the letter dated 7 th February
2022. The claimant thereafter turned to the CC and counterpleaded
that, the defendant acted outside the colour of his office in malice and
could not therefore be regarded as the PRODA’s agent and pleaded
the letters dated 21 st January 2022 and 7 th
February 2022, which showed that, the Board itself complained against the
defendant for failing to summon meetings. Thus, the claimant ended his
RSD&CC by urging the Court to find for him and dismiss the
CC
. That ends summary of the pleadings. I move to summary of proceedings.
SUMMARY OF PROCEEDINGS AND EVIDENCE
The case came up first before me February 17, 2022. The motion to
regularise the defence processes was granted unopposed on 6 th
April 2022. The case was opened 22 nd June 2022 with Solomon
Iwu-Ijike as CW1 who adopted his
Written Statement on Oath
[WSO] made 31 st March 2022.
CW1
tendered Exhibits C1 & C2 and closed his evidence-in-chief while the
learned Silk’s junior took over the conduct of the trial. The case
proceeded immediately to Cross-Examination [XX]
of CW1 by the defence.
Under XX, CW1 admitted knowing the claimant and that, he
was elected as PDP’s candidate after his dismissal from
PRODA
after prevaricating that he resigned. He said his opinion of the claimant
plummeted after the dismissal letter and that, he called the claimant on
the issue and he protested his innocence and that; the fact that he was
elected some months later showed his constituency took him as a man of
integrity because, the truth has prevailed. He answered that nonetheless,
the claimant suffered damage to his reputation immediately after the
publication though; he was later able to prove his innocence to his
constituency. CW1 admitted that only the PRODA Board could
discipline him and that; there was nothing in the picture in Exhibit C1
that showed the person that pasted it. CW1 admitted too that, he
had nothing to show that, the claimant had been absolved of the allegations
against him. He also agreed that a staff is different from the agency and
that; the defendant wrote Exhibit C1 in his official capacity. The
XX
was brought to an end without re-examination while CW1 was discharged
thereafter. And the case was adjourned to the next day.
The case came up 23 rd June 2022 and CW2, the claimant himself,
testified in-chief by adopting his WSO made 12/11/2021 and the
Further Written Statement on Oath [FWSO]
made 31/03/2022 and tendered Exhibits C1 to C10 without objection and was
immediately handed over for XX [NOTE THAT THERE ARE TWO
SETS OF EXHIBITS C1 & C2 DIFFERNTIATED BY CW1 AND CW2 ATTACHED TO THE
MARKINGS]. Under XX, CW2 admitted he was jobless and that;
this was because, he tendered his resignation sometime February 2022 to the
DG who doubled as the Secretary to the Board but that however, the
DG could not act in that capacity without a Board sitting. CW2
said the DG couldn’t carry out instruction of the board that is
illegal, as he has to refer such illegal instruction to the Minister for
proper guidance. CW2 in reaction to Exhibit C8 dated 21/01/22 said, he did
not know when the defendant became Acting DG and that, the
letter did not emanate from him but that he got it from the office.
To the question that the defendant was still Acting DG as
at 21/01/2022, CW2 answered that, his union was still on strike at
that date. But he admitted Exhibit C8 was addressed to the defendant as the
DG PRODA by name Fabian Okonkwo. To the question that
CW2 would not know who pasted the dismissal letter, he replied
that the defendant signed it and copied all HODs and the Security
of the institution and equally leaked it maliciously. CW2 admitted that the
Federal Ministry of Science and Technology [FMST]
dissolved the Board of PRODA sometime in March 2021. CW2 admitted
Exhibit C9, via the PRODA Board, suspended his dismissal. CW2
answered that the effect of Exhibit C9, which suspended his dismissal, is
that he had been absolved of all the allegations against him, as all his
rights as a staff had been restored.
CW2 said he stood by Exhibit C9 as the state of affairs on his
dismissal because; no further communication had been received on the issue.
CW2 read the last para of Exhibit C9, which said CW2 was still
under investigation, and said, there was a difference between being
investigated and being indicted. CW2 said he got the query from the
DG
via WhatsApp and replied 27/06/22by drawing the
DG’s attention to the SGF’s directive that, no official
communication should be made on WhatsApp and that, his union was on
strike and that, no further official message would be answered until the
call off of the strike and that; he also denied the allegations and
attached some documents. He stated he made the DG to know that he
merely answered the query as a mark of respect for his office and not that
he was legally obliged and warned sternly that any further official
communications not routed properly would not be honoured.
On the question that CW2 instituted another suit in Abuja against both the
PRODA and the defendant on the same issue, CW2 said, it was a
union matter instituted on behalf of the unlawfully dismissed staff and
that, he was one of these staff and that; his present suit is about
defamation and not about protecting his employment. CW1 said the matter of
his election by the PDP at the primary to contest to represent his
constituency is still in court being that the primary was challenged and
that, he would be committing contempt of court to answer the question about
who won the primary. But at the prompting of the Court, he said he was
declared the winner. The XX was closed at this stage without
re-examination while the claimant’s case was closed and the CW2 discharged.
The matter came up for defence on 19 th October 2022 and
Engineer Dr. Fabian Okonkwo, the defendant, testified for himself as
DW1
but could not proceed further because of issues connected with the
WSO
. It could not go on the next date too because of application for
adjournment. It came up next 30 th March 2023 and the defence
moved an application to deem the WSO filed as properly filed and
served. The application was opposed. The Court dismissed the objection and
deemed the WSO as properly filed. Thereafter, the DW1
continued his evidence-in-chief and he was reminded of his previous oath.
He thereafter adopted the WSO made 9 th November 2022.
Exhibits D1 to D4 were admitted against objections and the DW1
closed his evidence-in-chief and was surrendered for XX.
Under XX, DW1 said he came on board 7
th December 2020 and that; he was not the chief executive to
know whether the board was inaugurated 08/03/2018. He said he came on board
because the former DG was suspended. He said he was not aware the
Board had three years tenure. He admitted Exhibit C4 was addressed to the
Chairman of the Board and that; it was dated 05/08/2021. He agreed that the
tenure, by virtue of Exhibit C4, expired 07/03/2021 but demurred that,
there was another letter from the SGF He admitted too that, Exhibit
C8 was dated 21/01/2022 and addressed to him and that, the Board had its
inaugural meeting on 14/10/2021 while Board meetings were held once in a
quarter, unless there was overhead and that, when the overhead came, he
told the new Board Chairman to enable a meeting to be held 14/12/2021.
DW1 admitted he was accused of insubordination in Exhibit C8 but that
it was not true. He also said it was not true that he violated the
procurement law as reflected in Exhibit C8. DW1 said the dismissal
letter [Exhibit C1] was written on the authority of the Board meeting held
01-06/08/2021 as authorised by the Minister. He admitted Exhibit C1 [From
CW2] was written 26/08/2021 and that, Exhibit C4 was written by the
Minister 05/08/2021.
To the question that the claimant was not charged for the criminal
allegations, DW1 said that he merely communicated the position of the Board
to the claimant. The XX was closed and the defence closed his case
without re-examination. Thereafter, the case was adjourned for adoption of
Final Written Addresses [FWAs]. On 30
th November 2024 the claimant’s counsel’s motions to regularise
the claimant’s WA against the
Notice of Preliminary Objection
[NPO] and the second one to regularise the
claimant’s FWA were both granted in the absence of the defence on
the ground that, the defence had written to concede that the two motions be
granted. Thereafter, the case was adjourned for adoption of FWAs.
It came up as adjourned on 24 th January 2024 for adoption and
the Court ruled that, it would take both the NPO and the
FWAs
together for consolidated ruling and judgment.
Thereafter, the learned ADETUNJI OSO, of counsel to the
defendant, adopted the WA in support of the NPO and urged
the Court to strike out or dismiss the suit. The learned counsel referred
to the list of additional authority filed on 23/01/2024 and that, a copy of
the said authority had been given to the clerk. Thereafter, the learned
ADETUNJI OSO adopted the defendant’s FWA. Under
adumbration, the learned counsel drew the Court’s attention to the law that
the lower court is bound to follow the latest authority in case of
conflicts in the rationes decidendi from a higher court on the same
issue. He drew attention to the fact that, a case of defamation cannot be
made ancillary or connected to or related to or dependent on any other
cause of action and that; the additional authority cited, which copy had
been given to the clerk, being a 2020 case, is latter than the 2018 case
cited against his proposition and that, it reviewed all the previous cases
and overruled them thus, becoming the authority that the NIC
lacked jurisdiction over workplace defamation.
The learned counsel said besides, this case is a standalone case of
defamation and therefore, not ancillary or connected to anything. The
learned counsel argued that, apart from the admission that the defendant
authored Exhibit C1, there is no proof of any further ingredients of
defamation and that, publication could only be proved, by producing the
third party to whom it was addressed. The learned counsel also pointed to
the fact that, Exhibit C1 was not defamatory by virtue of Exhibit C9, as it
made the case premature, apart from justifying Exhibit C1. That ends the
adumbration from the learned defence counsel.
Thereafter, the learned O.S. AKEGOR for the claimant took
over the podium for adoption of the claimant’s WA against the
NPO
and FWA. The learned counsel identified the WA against
the NPO filed May 12, 2023 and the FWA filed May 16, 2023
and adopted both in urging the Court to dismiss the NPO and grant
the reliefs claimed in the substantive case. Under adumbration, the learned
counsel intimated the Court about being served just some few minutes to the
adoption of the list of additional authority without the name of the case
which prevented him from conducting a search to enable him appraise the new
authority and promised to supply the Court with further authority, if their
research yielded any. [THIS WAS NOT DONE]
Thereafter, the learned counsel said the decision on the NPO could
not be based on case law alone, as there are statutes to be construed and
moved to the substantive case on which he said, Exhibit C1 [From CW2] is
clearly defamatory by accusing the claimant of unproved crimes, while
publication was proved by evidence of pasting the defamatory dismissal
letter at conspicuous places in the workplace. The adumbration came to an
end and the case was adjourned for judgment March 21, 2024. It was not
ready on this date and was for that reason; adjourned off record
sine die
. Being ready, date was communicated to the learned counsel to the parties.
I move to summary of the Written Addresses [WAs]
on the NPO and the Final Written Addresses [FWAs]
on the substantive suit from both sides.
SUMMARY OF THE LAWYERS’ THEORIES OF THE CASE
A: The Defendant’s Lawyer’s Theory of the Case
This is located in two processes: the WA in support of the
NPO
and the FWA regarding the substantive suit and, the learned
ADETUNJI OSO franked both. I will summarise them together.
I start with summary of the WA in support of the NPO. It
has basically two grounds: The NIC has no substantive jurisdiction
to try the defamation in question and, the proper defendant is not before
the Court. The defence counsel formulated a lone issue to anchor arguments
on his theory of the NPO:
“Whether based on the limited jurisdiction conferred on this court as a
specialised court. [sic] The claimant’s case, founded strictly on tort
of defamation, not tied to any or connected with any trade or inter
union dispute was competently brought before the court [sic].”
Arguing the lone issue, the learned counsel submitted that, the subject
matter of this case is not cognizable before the NIC because; the
NIC could only adjudicate trade dispute or dispute connected with
employment and physical conditions of work. The learned counsel cited the
Trade Disputes Act [TDA] without specific
sections and
CBN v. Oodo (2021) 18 NWLR (Pt. 1809) 461 at 512-513, G-B
and submitted that, the NIC cannot assume jurisdiction over tort of
defamation or any tort at all, torts, being a special class of actions,
with special ingredients, distinct from the ingredients of employment and
labour, as held in
Akpan v. Unical (2018) LPELR-41242 (CA) and Okafor v. Ikeanyi & Ors
(1979) LPELR-2418 (SC
). The learned counsel submitted that because, the claimant claimed for
reliefs in tort alone, unconnected with employment or labour, this Court
lacks jurisdiction.
The learned counsel, without any issue formulated thereto, jumped into
arguments on the alleged non-joinder of the proper defendant. The learned
counsel argued that, failure to join PRODA is tantamount to
failure to join a necessary party, thereby impacting the constitution of the
case and robs the Court of jurisdiction. The learned counsel cited
Mbanefo v. Molokwu (2014) 6 NWLR (Pt. 1403) 377 at 421, A-C
and submitted that, this suit could not be determined without the presence
of the PRODA; as the defendant acted at all material times for
PRODA, by carrying out the directives of the PRODA Board,
which the dismissal letter clearly indicated that the defendant acted for
PRODA. The learned counsel argued that, being that the defendant
acted on behalf of disclosed principal, he could not be sued and since the
claimant failed to sue the disclosed principal, this error is fatal to his
case. The learned counsel cited
Kings Planet Int’l v. CPWA Ltd (2014) 2 NWLR (Pt. 1392) 605
.
The learned counsel argued that the allegations that the defendant acted
without authority could only be substantiated the Board’s joineder,
likewise the assertion that the Board had been dissolved at the point of
the dismissal. The learned counsel submitted that Exhibit C8, dated
21/01/2022, which was addressed to the defendant months after the
claimant’s dismissal showed that, the defendant was DG of
PRODA
at the material time. The learned counsel argued that the decision to sue
the defendant alone reduced the action to personal suit and took it away
from employer and employee dispute.
The learned counsel argued that, Exhibit C9, which recalled the claimant,
did not deny the claimant’s dismissal, but only undid what the dismissal
letter did. The learned counsel submitted that the circumstances of this
case is novel in that, the claimant’s suit of defamation is unconnected
with labour/employment but purely between two natural persons without
joining the employer, which is fatal to the action; as the NIC
lacked jurisdiction where the employer or a trade union is not a party.
The learned counsel submitted that the jurisdiction of the NIC is
solely donated by the TDA and it cannot go outside it and cited S.
48 of the TDA and
NUT Niger State v. COST Niger State (2012) 10 NWLR (Pt. 1307) 89 at
106-107, F-C
on what trade dispute is and submitted that, the instant suit is not a
trade dispute but pure defamation. The learned counsel submitted further
that, the only time a worker could sue a worker is in intra-trade union
disputes, in which group action must be instituted and not individual
employee suing another employee. The learned counsel submitted that, where
individual employees are concerned, it is only the High Court that
has jurisdiction because of its unlimited jurisdiction, as the law cannot
create a special court for just two individuals. The learned counsel argued
that; because the claimant had resigned his employment, he no longer
enjoyed the status of employee and that; the case was not about the
claimant’s employment or workplace and cannot therefore activate the
NIC’s
jurisdiction.
The learned counsel argued too that, the claimant did not give the
particulars of the third party that read Exhibit C1 and the circumstances
under which he read it and that, nothing in the pleadings linked the
evidence of publication to the defendant or the circumstances under which
CW2? [CW1] read Exhibit C1. The learned counsel also argued that, there is
nothing to show that the defendant communicated Exhibit C1 to the claimant,
as the claimant was not one of the persons copied with Exhibit C1. The
learned counsel argued that, because the claimant admitted he was still
under investigation for the same allegations, this suit was premature and,
the alleged defamation was justified. The learned counsel submitted that,
since Exhibit C1 only said the claimant was dismissed for failing to defend
the allegations, no defamation was committed and that, even if otherwise,
the claimant is covered by the doctrine of qualified privilege, being that
the defendant performed the functions of his office. Thus ended the
WA
in support of the NPO. I move to the FWA on the
substantive suit.
B: Summary of the Defendant’s Theory of the Substantive Case
The learned counsel formulated a lone issue:
“Whether based on the claimant’s pleadings, evidence led and special
circumstances of this case, the claimant had discharged the onus of
proof on him to entitle him to the reliefs sought and whether even if
the case of defamation is established, the defendant is not entitled to
defences of qualified privilege and fair comments.”
The learned author of the FWA argued that, without publication to
a third party, outside the libeled person, libel couldn’t be established
and cited
Oyejike v. Anyyasor (1992) 1 NWLR (Pt. 218) 473 at 449
and
Standard Chartered Bank v. Ameh (2022) 15 NWLR (Pt. 1854) 559 at
595-596.
The learned counsel cited
Fawehinmi v. Akilu (1994) 6 NWLR (Pt. 360) 387 at 456
to the effect that proof of publication is much more essential in private
or official defamation meant for the consumption of the general public. The
learned counsel argued that, for this reason, it is very important to give
the particulars of the third party and the circumstances under which he got
the publication and cited
Daily Telegraph Publishing Co Ltd v. Ekeuwei (2019) 14 NWLR (Pt. 1693)
455 at 483-484, B-G
. The learned counsel argued that the evidence of the claimant’s lone
witness was not pleaded. The learned counsel argued that the evidence of
CW2 [CW1] was inadmissible, as his name was not
specifically pleaded because the facts relating to it were not pleaded.
The learned counsel argued further that, for the evidence of CW2 to be
useful, it must be established that the defendant intentionally and
particularly published the defamation to the third party, more particularly
so, in respect of official communication; and submitted that, as such, CW2
was a busybody. The learned counsel argued that CW2 was not listed as one
of the persons to whom Exhibit C1 was communicated and just stumbled on it
by accident, and as such, he is not competent to give evidence. The learned
counsel cited Standard Chartered Bank v. Ameh[supra]. The
learned counsel cited
Yahaya v. Manichika (2000) 7 NWLR (Pt. 664) 300 at 314, F-G
on how to construe alleged defamatory words and the need to avoid strained
interpretation to arrive at the conclusion that the words were defamatory.
The learned counsel submitted that because the words were written in the
defendant’s official capacity to the claimant only, they were not
defamatory. The learned counsel cited
Katto v. CBN (1999) 6 NWLR (Pt. 672) 302
to the effect that, an employee cannot sue his employer on how his
employment was determined.
The learned counsel argued further that the claimant failed to demolish the
defence of qualified privilege, fair comment and justification and
submitted that; qualified privilege enures where it is possible to show
that duty placed the burden of making such statement to third parties on
the defendant and cited
Venn v. Access Bank Plc (2014) LPELR-24007 (SC)
. The learned counsel argued that the defendant satisfied all the
requirements of qualified privilege and referred to para 6(r)-(xvi) of the
SD&CC. The learned counsel submitted that, qualified privilege
presupposed that the defendant acted without malice and that, to dislodge
this, the claimant must specially plead express malice and cited
Bakare & Anor v. Ado Ibrahim (1973) 6 SC 205 at 212
and
Onyejike v. Anyassor (1992) 1 NWLR (Pt. 218) 437 at 451
. The learned counsel submitted that, as the claimant failed to rebut the
defence of qualified privilege, the defence enures in the defendant’s
favour.
The learned counsel cited
Ajileye v. Fakoyede (1998) 4 NWLR (Pt. 545) 184 at 195-296
to show that fair comment enures where it is found that the words
complained of were substantially true and submitted that, the words
complained of in the instant case were true, as the claimant was dismissed
for refusal to defend some allegations against him and the claimant did not
refute the fact by stating that, he actually defended the action. The
learned counsel argued that, the claimant ought to have appeared before the
Board to give the reasons he now gave and that, failure in this regard was
insubordination.
The learned counsel argued further argued that, though Exhibit C9 recalled
the claimant from dismissal, it nonetheless underscored the indictment by
maintaining that the claimant is still under investigation. The learned
counsel maintained that the claimant was a fugitive running away from the
allegations in Exhibit C1 because; he resigned in the face of Exhibit C9.
The learned counsel submitted that, the case is premature because; the
claimant ought to have awaited the outcome of the investigations ordered in
Exhibit C9; as he could not, in good conscience, expect the court to clear
him of the allegations for which he is still under investigation. The
learned counsel argued that the claimant, having admitted the allegation of
failure to report in his new station, the allegation is true. Thus ended
the defendant’s FWA. I move to the claimant’s theories of the case
as propounded in his WA against the NPO and his
FWA
.
Summary of the Claimant’s Counsel’s Theories of the Case
A: The Theory of WA Against the NPO
Learned G.I. EZEUKO franked the WA against the
NPO and formulated an issue similar to the one nominated by the
defence for the NPO. He argued that the jurisdiction of the
NIC
as donated by S. 254C-(1)(a) is not circumscribed to trade disputes alone;
as it is expansive and covers any civil matters arising from workplace, the
conditions of service, including health, safety, welfare of labour,
employee, worker and matters incidental thereto or connected therewith or
matters relating to or connected with labour and employment. The learned
counsel submitted that, this expansive civil jurisdiction accommodates
torts of defamation arising from workplace or connected with employment or
labour and between employees and cited
MHWUN v. Ehigiegba (2018) LPELR-44972 (CA)
. The learned counsel argued that, it was clear that both the claimant and
the defendant were employees of the PRODA and that; the dismissal
letter emanated from the workplace or from employment relations and that;
the defendant published the said dismissal letter, which contained the
defamatory matters. The learned counsel submitted that these showed
irrefutably that the cause of action arose from workplace and thus, grants
this Court jurisdiction.
The learned counsel contended that the assertion of the defence that the
NIC’s jurisdiction is limited to trade dispute was unfounded in
law in the face of S. 254C-(1)(a) of the Constitution and that; all
the authorities cited were irrelevant since they did not construe the non
obstante provisions of S. 254C-(1)(a) of the Constitution. The
learned counsel submitted that, it was also a misconception that the
High Court
has jurisdiction over workplace defamation in spite of the fact that, the
jurisdictions of both the High Court and the
Federal High Court
[FHC] were made subject to the non obstante
jurisdiction of the NIC. The learned counsel cited
CBN v. Oodo (2021) 18 NWLR (Pt. 1809) 512 and NDIC v. Okem Ent (2004)
10 NWLR (Pt. 880) 107
on the effect of non obstante clauses and submitted that, only the
NIC
has exclusive jurisdiction in this instance, irrespective of the nature of
the claim. The learned counsel further cited
MHWUN v. Ehigiegba
[supra]. The learned counsel submitted too that, the case of
Akpan v. Unical
[supra] cited by the defence, the date 2018 was wrongly cited, as it was
actually decided in 2016 and before MHWUN v. Ehigiegba
[supra] decided later in 2018 and submitted that,
MHWUN v. Ehigiegba
was thus, the more recent authority on the issue. The learned counsel
thereafter urged the Court to find that its jurisdiction is intact and
moved to the question of non-joinder of the proper defendant.
The learned counsel argued that the tort of defamation, being a personal
action, the proper parties are before the Court and cited
Izejiobi v. Ebgebu (2016) LPELR-40507 (CA) 43
. The learned counsel argued that, the fact that the said PRODA
Board, which the defendant claimed to be the proper party, disowned the
defendant in Exhibits C8 and C9 showed that the defendant was on a frolic
of his own, which showed that the dismissal was not done in accordance with
due diligence and process of law. The learned counsel submitted that
therefore, the Board could not have been brought into the action. The
learned counsel argued that Exhibit C4 also confirmed that, the Board was
not in existence as at the time the defendant purportedly acted for it
hence, the PRODA and its Board had no hand in the defamation; and
the claimant could not therefore sue it.
The learned counsel cited Order 13, R. 14 of the NIC Rules and
Rivers State Govt. v. Barthgson Nig Ltd (2018) LPELR-49227 (CA)
to the effect that misjoinder does not defeat an action; as it is not a
jurisdictional point. The learned counsel argued that Exhibit C8 could be
reconciled with Exhibit C4; as the issue is that, as at the time the
defendant published the said dismissal letter, PRODA Board was not
in existence, having been dissolved in March 2021. The learned counsel
argued that, it was clear from Exhibit C8 that addressing the defendant as
DG was necessitated by the various petitions sent by the defendant
in which he addressed himself as the DG, to which Exhibit C8
replied. The learned counsel thereafter signed off by reaffirming that this
Court has the requisite jurisdiction and urged it to so find and hold and
that; the NPO is dismissed. That being the end of summary of the
theory of the claimant’s learned counsel against the NPO, I move to
the theory of the substantive case, as propounded by the learned claimant’s
counsel.
B: The Claimant’s Counsel’s Theory of the Substantive Case
Learned G.I. EZEUKO also franked the claimant’s theory of
the substantive case as formulated in the claimant’s FWA and
submitted two questions to prove the theory:
1.
Whether the statement as contained in Exhibit C1 is defamatory?
2.
Whether the defendant as at the time of making Exhibit C1 has the
authority to make same and if not, whether the action is malicious and
hence negates the defences of fair comment, privilege and justification
sought to be relied upon by the defendant?
Arguing issue 1, the learned counsel admitted that the
onus is on the claimant to show that the words complained of are actually
defamatory and listed the following elements, which the claimant must prove
in libel, which is actionable per se: 1. written words, which
referred to the claimant, and 2. published by the defendant, 3. knowing
that they were false; and 4. they were defamatory or impute defamation. The
learned counsel cited
Guardian Newspapers Ltd & Anor v. Ajeh (2011) LPELR-1343 (SC) and
Sule v. Orisajimi (2019) 10 NWLR (Pt. 1681) 513
. The learned counsel theorized that both sides agreed that the defendant
authored the dismissal letter concerning the claimant and addressed it to
the claimant and therefore, the 1 st and 2 nd
conditions as listed above were satisfied. The learned counsel furthered
his theory by arguing that, publication of defamation occurs when a
defamatory material is conveyed to a third party and cited
Olumoroti v. Idemoko (2017) LPELR-51546 (CA)
.
The learned counsel argued that the defamatory dismissal letter was pasted
at conspicuous places in PRODA, the workplace of both the
claimant and the defendant and that, it was not sent to the claimant
personally against the provisions of the FPSR, in spite of being
the claimant’s dismissal letter, but was instead, copied to all heads of
departments and pasted in all conspicuous places at the workplace, with the
malevolent intent of making it known to third parties and the general
public, other than to the claimant, to whom it was addressed. The learned
counsel argued that, CW2 testified on 26 th June 2022 that the
defendant published the defamatory dismissal letter and that; this was
corroborated by CW1, who was also a PRODA staff like the claimant
and the defendant. The learned counsel supported his theory by arguing that
the defendant never disputed the corroborative and direct evidence of CW1
under XX, making it credible and cogent and, submitted that by
virtue of
Daily Telegraph Publishing Company Ltd v. Ekuewei (2019) 14 NWLR (Pt.
1693) 484 and Omo-Agege v. Oghojafor (2011) 3 NWLR (Pt. 1234) 341
the CW1 was amongst the third parties to whom the defamatory dismissal
letter was published.
The learned counsel argued that, Exhibit C4 irrefutably proved that the
defendant wrote the dismissal letter without authority as both he, as the
DG and the PRODA Board tenure expired March 2021 and
submitted that, the lack of authority was further confirmed by the fact
that, on 7 th February 2022, the PRODA Board disclaimed
such authorisation, while the dismissal was recalled via Exhibit C9. The
learned counsel further his theory by arguing that, Exhibit C8 showed that,
no Board had sat since the dissolution of the previous Board in March 2021
and, the defendant refused thereafter to even call meetings of the new
Board. The learned counsel posed: how could the same Board that allegedly
gave the authorisation to dismiss the claimant recall the claimant and
suspend the dismissal for not representing its instruction? The learned
counsel theorized that, the logical inference is that, the defendant’s
actions were actuated by malice more so, that the FMST noted this
as the usual practice of the defendant to other staffers as evidenced in
Exhibit C8. The learned counsel submitted that this satisfied the third
condition of malice and moved to the issue of falsity of the publication.
The learned counsel submitted that, since the defendant acted on his own
without authority, this proved he was actuated by malice.
The learned counsel referred to
Okolo v. Midwest Newspaper Corporation & Ors (1977) 1 SC 20
and posited that because, Exhibit C1 [the dismissal letter] was addressed
to the claimant with the accusations that the claimant was a fraudster and
embezzler of public funds, criminal imputations were thereby made against
him, yet the claimant was never reported to the police nor charged to court
for these or invited by the Board or faced any disciplinary action on
these, and the failure of the defendant to prove the allegations to the
hilt, as required under S. 135(1) of the Evidence Act and, by
Egejuru v. Medical & Dental Practitioners Investigation Panel &
Ors (2017) LPELR-42616 (CA)
, which says only courts can try and convict on crimes, since the claimant
had not been tried and convicted, the accusations were false. The learned
counsel cited
Omo-Agege v. Oghojafor [supra]; Daily Telegraph Publishing Company v.
Ekuewei
[supra] on the importance of the evidence of a third party that the
victim’s estimation was lowered by the defamatory publication in his
estimation and that, the CW1 gave this evidence.
The learned counsel cited
Akufere v. Sketch Publshing Co. Ltd (1971) I UILR 13 at 15 and
Iseramenya v. Ofodion (2020) LPELR-52236 (CA) 17, A
to the effect that, the mere fact that a victim of defamation rose above
public odium does not affect the fact that, he was defamed and submitted
that, the mere fact that the claimant was able to win primary election
despite the defamation, does not mean he was not negatively afflicted by
the defamation. The learned counsel argued that, besides, the claimant
established that the defendant defamed him in his workplace and that, the
defamation affected his financial credit because, the defendant on account
of the falsehood, removed his name from the payroll and that; the newly
inaugurated Board recognised this by restoring the claimant back to the
payroll via Exhibit C9 because; the defendant acted without authority and
without due process of law, which showed clearly that the claimant was both
defamed and suffered financial distress as a result. The learned counsel,
drawing strength from the foregoing, finally submitted on the issue that
the claimant met all the requirements of defamation and urged the Court to
so find. The learned counsel thereafter moved to his issue 2.
Under issue 2, which is about the negation of the defences
of fair comment, justification and privilege, the learned counsel argued
that, where these defences are set up, it implies the defendant’s admission
of the defamation but demurer that it was made upon a privilege occasion or
that, the defamation was actually true and fair comment. The learned
counsel submitted that the implication is the inversion of proof, which
made it obligatory for the defendant to prove the truthfulness of the
defamation and cited
Ojukwu v. Nnruka (1998) LPELR-5683 1 at 24-25 and Babalola & Ors v.
Otoki & Anor (2019) LPELR-46887 (CA) 8, C
. The learned counsel submitted on the strength of the above that, the
defendant must prove the commission of the alleged crimes beyond reasonable
doubt, otherwise, he is damnable and cited S. 135(1) of the
Evidence Act
and
Agwasim v. Beauty Ejivumerwerhaye (2001) FWLR (Pt. 1077); Bagobiri v.
Unity Bank Plc (2016) LPELR-41161 (CA) and Egejuru v. Medical &
Dental Practitioners Investigation Panel & Ors [supra] 13-14
. The learned counsel submitted that, the defendant has failed to prove the
truthfulness of the allegations or that; the claimant was investigated,
tried and convicted.
The learned counsel argued that the defence of justification must cover all
aspects of the defamation and that, the defendant failed to justify the
aspect of the defamation that the claimant was found guilty of crimes. The
learned counsel argued that, as Exhibit C8 is reconcilable with Exhibit C4,
the mere address of the defendant as DG in Exhibit C8, which was
in reaction to how the defendant addressed himself in his petition to the
Minister; the submission that there was no Board as at the time the
defendant wrote the dismissal letter and thus, acted illegally, was not
impacted and therefore remained unscathed. The learned counsel submitted
that, this proved abuse of office and malice and cited
Sule & Ors v. Orisajimi (2019) LPELR-47039 (SC) 12-15, B and Bakare
v. Ado Ibrahim (1973) 6 SC 147
. The learned counsel argued that, in line with the above authorities, the
claimant pleaded and proved malice in fact in paras 2,3&5 of his
RSD&CC
and gave evidence in line with these pleadings in paras 2-4 of the
FWSO
and 3,4&13 of the AWSO of CW1.
The learned counsel argued that, a careful study of Exhibits C4 & C8
showed the defendant’s departure from his lawful duties in order to harm
the claimant, which negates the lame defences and showed the defendant as
insubordinate to constituted authority and a cantankerous fellow. The
learned counsel argued further that, the action of the defendant in failing
to deliver the dismissal letter to him but quickly dispatching it to others
and pasting it on trees and walls showed further the malice in fact. The
learned counsel further his theory of malice in fact by citing the letter
written to the defendant to retract the defamation [Exhibit C6], which he
treated with contempt. The learned counsel cited
Iloabachie v. Iloabachie (2005) 5 SCNJ 84 at 293-294
to the effect that, the defence of privilege could only enure where there
was a moral or legal duty to make the defamatory statements to the third
party, and the third party incidentally has the same corresponding interest
to receive it. He submitted that, this shows that the publication to the
third parties without authority removes the toga of any moral or legal duty
from the defendant and removes the corresponding duty from the third parties
to hear or receive the information.
The learned counsel quipped about how the defendant, dismissed the claimant
on 26 th August 2021, after he and the Board had received the
notice [Exhibit C4] that dissolved the PRODA twenty-one days
earlier and that; the answer to this could be found in Exhibit C9 in which
the new Board suspended the dismissal on the ground that, the defendant
acted for himself and not the Board and also without following due process,
which signified malice and submitted that, a person found to have acted
with malice could not rely on the defence of qualified privilege, fair
comment or justification to escape liability for his illegal acts and cited
African Newspapers of Nigeria Ltd v. Coker (1973) LPELR-212 (SC) 21, B
. The learned counsel argued further that, the publication to third parties
without authorisation and to the general public and the pasting at places
not authorised to receive it, and not sending it to the claimant to whom it
was addressed, shows clearly that malice was implicated and cited
Basorun v. Ogunleye (2000) 1 NWLR (Pt. 640) 221 at 235-236
and submitted that, the defamation could not be said to be fair comment and
that, this conclusion is supported by Exhibit C9, which showed that the
defendant acted in abuse of his office.
The learned counsel consequently urged the Court to hold that the defences
of qualified privilege, fair comment and justification do not avail the
defendant. The learned counsel thereafter summarised the arguments in the
FWA in his conclusion and urged the Court to grant the reliefs
claimed. There is no Reply on Points of Law [RPL]
filed by the learned defence counsel but the learned defence counsel cited
Ecobank Nigeria Limited v. Osu, which he said was
delivered February 24, 2020 in the additional list of document filed. I
have earlier summarised the arguments on this in the summary of the
adumbration of the learned defence counsel. That ends summary of the
WAs
on the NPO and the FWAs on the substantive suit from both
sides. I must now go ahead to give my composite decisions on both the
NPO
and the substantive case.
But before then, let me state that I have carefully studied all the
pertinent processes filed in this matter and digested them. I have also
carefully taken in the pieces of evidence from both sides, including the
exhibits, both in chief and under XX. That I did these are
reflected in my summaries above. But I note that I did not summarise the
WSOs of the witnesses simply because, they were essentially
repetitious of the pleadings, which I have earlier on carefully summarised.
But I would make references to them wherever it becomes necessary. I have
also watched the demeanours of the witnesses and vividly recollect them. I
have also researched additional authorities to enable me tackle the
essentially recondite and novel issues that this case raised, particularly
in view of the conflicting decisions without discernible
rationes decidendi
in this area of the law from both the NIC itself and the respected
Court of Appeal. This is to enable me give decisions that evoke
catharsis and conviction to assist the Court of Appeal in settling
the controversies once and for all, perhaps the matter goes on appeal. It
is equally necessary to state that the judgment would be divided into two
parts. Part A shall deal with the NPO, and will
itself be divided into two segments: First Segment and Second Segment,
while Part B shall deal with the substantive suit. There I
now go.
CONSOLIDATED DECISIONS AND THE RATIONES DECIDENDI
Part A: First Segment: Decision on Lack of Substantive
Jurisdiction
The latest authority cited by the learned objector’s counsel on the issue
of NIC’s lack of substantive jurisdiction over “workplace
defamation” is: Ecobank Nig. Ltd & Ors v. Osu,
which was decided February 24, 2020. The latest authority cited by the
learned claimant’s counsel was MHWUN v. Ehigiegba, which
was handed down in 2018. And incidentally,
Ecobank Nig. Ltd v. Osu
did not take cognisance of MHWUN v. Ehigiegba but cited
Akpan v. Unical [supra] with approval, which was also
cited by the learned objector’s counsel with approval and, incidentally,
MHWUN v. Ehigiegba was latter than
Akpan’s
case. Akpan’s case was the very first
Court of Appeal’s authority holding that the NIC lacked
jurisdiction on workplace defamation and, it was decided May 13, 2016. It
upheld the NIC’s decision declining jurisdiction over workplace
defamation on the ground that, defamation was a standalone cause of action
and as such, could not be ancillary to employment. It could be seen that
the NIC itself kick-started the controversy. And within 2016 till
the moment, the NIC itself has not agreed within itself on this
issue as it continues to dish out conflicting decisions on the issue.
From the above, with the utmost respect, it is clear that there is no
discernible ratio decidendi in the conflicting decisions from both
the NIC and Court of Appeal on this issue. Naturally, I
made further researches to see if the issue had been rested in any further
Court of Appeal’s decision, the Court of Appeal being the
apex Court to the NIC. What my researches unearthed was even more
confounding. Rather than being settled, these further authorities
heightened the confusion. I came across a long array of authorities from the
Court of Appeal for and against, with most of them, with the
utmost respect, not taking cognisance of the Court of Appeal’s
previous decisions that said yes to NIC’s jurisdiction over
workplace defamation. It is needless to say that the NIC itself did
not fair better as it too, neither took cognisance of the latest
Court of Appeal’s
authorities on the issue or its own previous authorities. With grave
respect, there appears now to be two schools of thought from the judicature
on whether the NIC has civil jurisdiction over workplace
defamation and torts generally.
The first school is the
restrictive school of thought
while the second is the
expansive school of thought
. From what I could garner from my researches, the following 8 decisions of
the Court of Appeal represent the
restrictive school of thought
:
1.
Akpan v. Unical (2016) LPELR-41242 (CA) delivered May 13, 2016;
2.
Ecobank Nig. Ltd v. Osu (2020): Unreported CA/L/963/2016 – delivered
February 24, 2020;
3.
Adeniyi Olushola & Anor v. Adolphus Yakubu (2021) LPELR-56015 (CA);
4.
Adeniyi Olushola & Anor v. Billa Saliu (2021) LPELR-56027 (CA);
5.
Adeniyi Olushola & Anor v. Giwa Friday (2021) LPELR-56019 (CA);
6.
Olushola & Anor v. Andrew (2021) LPELR-56017 (CA);
7.
UBA & Ors v. Oladejo (2021) LPELR-55320 (CA) and;
8.
Ekobank Nig. Ltd & Ors v. Idris (2021) LPELR-52806.
The following 5 opposing decisions of the Court of Appeal
represent the expansive school of thought:
1.
MHWUN v. Ehigiegba (2018) LPELR-44972 (CA);
2.
Nwagbo & Ors v. National Intelligence Agency [NIA] (2018)
LPELR-4620 (CA);
3.
Nasarawa State Specialist Hospital Management Board & Ors v.
Mohammed (2018) LPELR-44551 (CA);
4.
Omang v. Nsa (2021) 10 NWLR (Pt. 1781) 55 delivered May 19, 2020 and;
5.
Okoro v. Ecobank Nig. Ltd (2021): CA/C/07/2016 – Delivered July 16,
2021.
What I have listed above are the authorities available to me at this point.
I do not doubt that, there might be other unreported decisions from the
Court of Appeal on this issue, which I was not fortunate to stumble
upon. By dint of the doctrine of stare decisis, there cannot be
different schools of thought when it comes to decisions of courts of law
bound by judicial precedents, like the judicature in Nigeria. But the
reality is that, occasionally this happens because, different panels and
lawyers might not be aware of the opposing decisions from the same court on
the same issues and thereby, the courts give differing decisions on the
same issue. This scenario is what usually leads to difficulty in
establishing firm ratio decidendi that constitutes
stare decisis
on a point of law. I found that none of the authorities from the
restrictive school of thought mentioned Okoro v. Ecobank
decided July 16, 2021 or Omang v. Nsa [No. 4 on the
Expansive List] decided 2020, which reinforced
MHWUN v. Ehigiegba
[supra] on the nature of NIC’s expansive civil jurisdiction,
though, not directly on workplace defamation while
Okoro v. Ecobank
was directly on workplace defamation.
So, Okoro v. Ecobank stands on its own, even though, the
quartet of:
Adeniyi Olushola & Anor v. Adolphus Yakubu [supra]; Adeniyi
Olushola & Anor v. Billa Saliu [supra]
;Adeniyi Olushola & Anor v. Giwa Friday [supra] and; Olushola
& Anor v. Andrew [supra],were decided after it, they, having
been decided in November 2021, while Okoro v. Ecobank was
decided in July 2021, whereas, Okoro v. Ecobank noted,
discussed and overruled Akpan v. Unicalwhile
MHWUN v. Ehigiegba
also similarly noted and overruled Akpan v. Unical, which
most of these restrictive authorities relied on.
But it appears that in
Adeniyi Olushola v. Adolphus Yakubu
one MAHWUN [not MHWUN] v. Ehigiegba was cited, but it was
not noted at all in the Court of Appeal’s decision. It appears too
that, the MAHWUN v. Ehigiegba cited therein is different,
as it appeared that it held that the NIC lacked jurisdiction over
workplace defamation, whereas, MHWUN v. Ehigiegba I know
clearly held that the NIC has jurisdiction on workplace
defamation. Note that one is MAHWUN while the
other is MHWUN. Be that as it may,
Adeniyi Olushola v. Yakubu
did not cite Okoro v. Ecobank at all, which was decided in
2021 and clearly overruled Akpan v. Unical, on which the
latter authorities were based. Ecobank v. Idris was
delivered January 20, 2021 before Okoro v. Ecobank, which
was rendered July 16, 2021. Even though, the Court of Appeal said
the NIC has no jurisdiction on workplace defamation in
Ecobank v. Idris
, it did not discuss MHWUN v. Ehigiegba at all, though
cited. Cases No. 3-6 from the restrictive school of thought were
consolidated cases and so, were on the same issue of malicious prosecution,
likewise case No. 7 thereof, and therefore, not directly on workplace
defamation, but still on the question of the NIC’s jurisdiction on
torts, workplace defamation being an aspect of tort.
However, MHWUN v. Ehigiagbaand
Okoro v. Ecobank
were directly on workplace defamation. With this state of affairs, it means
Okoro v. Ecobank that directly decided the question of
NIC’s jurisdiction over workplace defamation, is the latest,
having been decided July 2021 and, this decision was foreshadowed by
MHWUN v. Ehigiegba;
Nwagbo & Ors v. National Intelligence Agency and, Nasarawa State
Specialist Hospital Management Board & Ors v. Mohammed
, which were all decided in 2018 and they all held that NIC’s
civil jurisdiction is not limited to only disputes between employers and
employees but extends to any dispute at all that is related to labour and
industrial relations and therefore, covers all matters touching on labour
and employment, howsoever styled or termed. Nwagbo’s case
was on claim for death benefits by the relations of a deceased employee
and, the objection was that NIC’s jurisdiction was limited to only
existing employment relationships i.e. employer-employee relationship, and
did not extend to third party non-employee, but the
Court of Appeal
said no: “it extends to any dispute related to labour and industrial
relations.”
It is therefore clear that there are truly two schools of thought at the
Court of Appeal at the moment on the issue of NIC’s
jurisdiction on workplace defamation and torts generally. It is needless to
say that, the same thing is applicable in the NIC. In fact, the
NIC itself has been more responsible for the problem when it was
the first to decline jurisdiction, which the Court of Appeal
upheld in Akapan’s case. Thus, at the initial stage
different judges of the NIC independently in the cognate cases
affirmed jurisdiction and declined jurisdiction simultaneously, while in
the latest cases, it per force kowtowed to the individual judge’s known
latest Court of Appeal’s decisions on point thus, the continuing
conflicting decisions on point. A good example in this last category of
NIC’s decisions on its jurisdiction on workplace defamation is
Eric Ivivie Baror v. Polaris Bank Ltd
[1]
[Delivered 11-24-2022]. The NIC phrased its decision, based on the
Court of Appeal’s latest known cognate decision, thus:
“Adeniyi Olushola & anor v. Adolphus Yakubu…held that the NICN does not
have jurisdiction over malicious prosecution. This position was also
reached by the Court of Appeal in Adeniyi Olushola & anor v. Billa
Saliu…and Adeniyi Olushola & anor v. Giwa Friday…UBA & ors v.
Oladejo…on its part held that the jurisdiction of NICN does not extend to
‘criminal matters and tort’ or to malicious prosecution, assault, detinue
or any liability in tort’.
In respect of ‘criminal matters’, this decision was given despite that
section 254C(5) of the 1999 Constitution donates jurisdiction over
criminal causes or matters of which jurisdiction is conferred on the
NICN by section 254C or any other Act or law
.
All these Court of Appeal decisions are later in time than the 2018
decision in MHWUN v. Dr. Alfred Ehigiegba…And so by law I am compelled to
follow them. This means that I cannot exercise jurisdiction over the claims
of the claimant in defamation in the instant suit.”
That has been the most recent contour of the decisions of the NIC
known to me on workplace defamation in deference to the doctrine of
stare decisis
. I would have found myself bound to take the same position too but, for
the three authorities from the Court of Appeal, which held that
the NIC has expansive jurisdiction over all matters arising from
labour and industrial relations, while the 2021 authority of
Okoro v. Ecobank
specifically held that, NIC has exclusive jurisdiction over
workplace defamation thus, becoming the latest that is directly on point.
As could be seen Eric Ivivie Baror v. Polaris Bank Ltdwas
not aware of these authorities, especially
Okoro v. Ecobank
decided in 2021 directly on the issue of workplace defamation thus,
bringing about the impossibility of discerning a ratio decidendi
common to the decisions of both the NIC and the
Court of Appeal
on the question of NIC’s jurisdiction on workplace defamation.
I need not cite any further NIC’s conflicting decisions on the
issue, for they are embedded in the several of the
Court of Appeal’s
decisions already cited. Therefore, it is clear as daylight that there are
presently no discernable ratio decidendi on the issue of
workplace defamation from the decisions of both the NIC and the
Court of Appeal. In this scenario, it is even difficult to decide
which is the latest on point amongst the welter of conflicting decisions,
since the most recent decisions were not directly on workplace defamation,
which is the extant cause of action but on malicious prosecution, another
branch of tort different from workplace defamation. But they all, with
grave respect, made sweeping generalisations thus creating the ambiguity.
The Court of Appeal in
Ngun v. Mobil Producing Nigeria Unlimited (2013) LPELR-20197 (CA)
31-32, C-D
, which relied on the Supreme Court’s
Osakwe v. F.C.E. (Technical) Asaba
, solved this problem by giving the leeway to courts:
“Where there is no discernable ratio decidendi common to the decisions of a
superior court and this Court has handed down conflicting decisions,
the lower Court or a Court of co-ordinate jurisdiction is free to
choose between the decisions which appear to it to be correct
…”
It is now incumbent on me to rationalise which of the welter of conflicting
decisions without clear ratio decidendi common to both sets of
decisions from both courts: the NIC and the
Court of Appeal
, I chose. Even though, this is a choice granted by law under a scenario
like this, as an exception to the doctrine of stare decisis but,
it is certain that the law did not grant the discretion at the whims and
caprices of the judge but presupposes that the judge’s choice would be
backed by cogent reasons, which might assist the Court of Appeal or
the appellate court to resolve this issue once and for all, if the matter
goes on appeal, by reconciling all its numerous conflicting decisions and
coming out with a clearly discernable ratio decidendi, that can
serve as locus classicus on the recondite issue. This is so
because a court’s exercise of discretion must be judicial and judicious. Let
me now go into that.
The arguments for and against the NIC’s exclusive civil vires
over workplace defamation are centred at one end, from the
defendant/objector’s point of view on what the NIC’s jurisdiction
used to be and what it ought to be and not, what it actually is under the
Third Alteration Act, an entirely new statute, hence; the
reluctance to do a literal construction of S. 254C-(1) of the
Constitution
. This is the thread that runs through the cases cited by the learned
defendant-objector’s counsel. And with the utmost respect, this point of
view seemed to be shared by all the eight listed authorities in the
restrictive school of thought, even though, decided on the expansive
shoulder of the Third Alteration Act. And the singularity in all
these authorities towing the restrictive line is that, none unearthed the
existence of any ambiguity and absurdity inherent in granting exclusive
civil jurisdiction to the NIC over workplace defamation. With the
gravest respect, they merely seemed to reason that the NIC ought
not to have jurisdiction over workplace defamation based on what used to be
or what ought to be. Unfortunately, it is only upon a resultant ambiguity
leading to absurdity from literal interpretation that a court of law can
lawfully depart from the literal rule of interpretation, which is the
primary rule of interpretation.
The expansive jurisdiction school of thought posits that the NIC
has expansive exclusive jurisdiction over workplace defamation and employed
the literal rule to construe S. 254C-(1) of the Constitution and,
came to the conclusion that the NIC has expansive exclusive civil
jurisdiction, which covers workplace defamation, torts generally and all
other matters arising from labour, employment and workplace, howsoever
styled or termed and, matters incidental to them or connected with them
under the auspices of the Third Alteration Act. The NPO as
argued in the supporting WA by the learned objector’s counsel was
essentially centred on the TDA and did not, for once, cite S.
254C-(1) of the Constitution. That aspect of the arguments is
immediately dismissed without the need for any further discussion because;
it is an affront to the Constitution. The TDA did not
confer jurisdiction on the NIC under its present constitutional
configuration: it is S. 254C of the Constitution that does and, it
gives the NIC jurisdiction over even the TDA under S.
254C-(1)(b). So, all the issues covered in the TDA have become a
tiny aspect of the expansive civil jurisdiction now granted the NIC
under S. 254C of the Constitution.
It is therefore incorrect approach to cite the TDA and
NICA
to limit the jurisdiction granted the NIC under the extant
Constitution
; as the NIC’s jurisdiction is now to be totally found inside the
Constitution –
NUEE & Anor v. BPE LPELR-SC.62/2004, 38-39, B-F; also (2010) 7 NWLR
(Pt. 1194) 538 S.C.
An ordinary Act of the NASS cannot restrict the
jurisdictions of the superior courts constitutionally granted. But I found
that, in the adumbration, especially on the additional authority cited, the
learned objector’s counsel, for the first time, newly proffered arguments
on S. 254C-(1) of the Constitution. I shall now consider these new
arguments with the flimsy aspects of the arguments in the WA in
support of the NPO, which unwittingly have some relevance to the
questions raised by S. 254C-(1) of the Constitution.
In deciding whether the NIC has exclusive civil jurisdiction over
workplace defamation, we shall be guided by the time-honoured doctrine of
construction of new legislations to the effect that, new statutes must be
interpreted with tabula rasa –
Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA)
. That is, they must be construed with a mindset shunned of the knowledge
of the previous position of law relative to the subject matter of the new
legislations. In a nutshell, a new statute must be construed as if there
was never a law on the subject matter it covers. The person construing the
new legislation must have a mindset that the old law has been abrogated or
amended. It means, the person construing new legislations, constitutions
inclusive, must employ literal rule of interpretation first and foremost;
and if this yields total abrogation of the old law, it must be enforced as
the extant position of law on the subject and, not otherwise, except there
is thrown up an ambiguity leading to absurdity –
Skye Bank v. Iwu (2017) LPELR-42595 (SC) 26-32, B-F
.
Therefore, it is not a correct approach to believe that all that the
Third Alteration Act
did was only to make the NIC a superior Court and therefore, by
that, limit its jurisdiction to what it used to be under the TDA
and NICA. That is exactly what the Court of Appealwarned
against in Sahara Energy Resources Ltd v. Oyebola[supra].
Let us disabuse our minds of the previous state of the law and focus all our
attention on the Third Alteration Act. We shall be able to see
better and clearly what the new NIC’s civil jurisdiction entails.
It would be seen that the basic anchor of the objector’s arguments in
support of the NPO was based on the knowledge of what the law used
to be with regard to the jurisdiction of the NIC and the inability
to unlearn the prior knowledge. To be able to correctly interpret a new
legislation, one must unlearn the previous state of the law and relearn the
new state of the law as contained in the new statute. In that sense,
literal interpretation is the first and foremost rule [basic rule] of
interpretation of statutes, constitutions inclusive. For the sake of clarity
S. 254C-(1)(a) of the Constitution, which is central to this
controversy, provides thus, and I quote:
“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 –
(a)
relating to or connected with any labour, employment,
trade unions, industrial relations
and matters arising from workplace, the conditions of
service, including health, safety, welfare of labour,
employer, worker and matters incidental thereto or connected therewith.”
Those are the provisions of Constitution that have been the
bedrock of the decisions for and against the jurisdiction of the
NIC
over workplace defamation. They are therefore the immediate provisions that
fall for consideration in determining the NIC’s non obstante
jurisdiction over workplace defamation. Looking at these provisions,
assuming one were not a lawyer, with a pre-knowledge of labour law, what
interpretation would one give these provisions, with regard to the
NIC’s
jurisdiction over workplace defamation? Definitely, a layman would say that
the NIC has absolute jurisdiction over workplace defamation. Is
there ambiguity leading to absurdity in the wordings of S. 254C-(1)(a) of
the Constitution, to warrant the invocation of any other rule of
interpretation? There is neither ambiguity nor absurdity thrown up by the
application of literal interpretation.
It is not being said that the NIC cannot understand the nuances
of workplace defamation or that, the lawyers practising in the NIC
would not understand the nuances simply for the fact that they practise in
the NIC. In any case, the practice of law in Nigeria is general.
Going by literal interpretation, does the NIC have jurisdiction
over workplace defamation? The answer is yes. It is a matter that arises
from work-context. That is what the layman would say and literal
interpretation is about the true or ordinary meanings of words used in
legislations as understood by laymen. It is only when its application leads
to ambiguity and absurdity that courts resort to the other esoteric rules
of interpretation that might be strange to those not trained in law to cure
the ambiguity and absurdity.
Having found no ambiguity in the phraseology of S. 254C-(1)(a) of the
Constitution
and, no absurdity in the application of the literal rule to them then, the
NIC has exclusive non obstante jurisdiction over workplace
defamation and, it is in the best position to adjudicate such defamation
because; it has the singular expertise to determine its impacts on the
employment fortunes of the victim-employee or victim employer. Besides,
there is a new concept in the modern jurisprudence of labour law around the
world known as workplace
defamation[2]. It would appear that the
real focus of the restrictive school of thought is about the omission of
the drafters of the Third Alteration Act in not specifically
naming defamation or torts as an item over which the NIC has
jurisdiction: that is, not specifically using the jargon defamation or
torts but, instead used general words that captures torts and much more.
They felt, based on the prior knowledge of what the jurisdiction of the
erstwhile NIC used to be and what it ought to be, the
Constitution
could not have intended such expansive jurisdiction on matters they felt
were standalone or independent of labour relations.
How true is the assertion that, ‘workplace defamation’ is unrelated to
labour and independent of it, we shall see anon. Suffice to say now, none
of the authorities from the restrictive school of thought, has argued that,
in the ordinary language of the provisions of S. 254C-(1)(a) of the
Constitution
, it could not cover workplace defamation and torts generally. They only
argued that, based on the previous state of the law; it ought not, and
therefore did not meet the intendment of the draftsmen of the
Constitution
. They abandoned literal interpretation and resorted to purposive cum
mischief rule interpretation, which incidentally negated one of the real
purposes of the Third Alteration Act, which was to grant the
NIC
expansive jurisdiction. In effect, both purposive and mischief rules were
not correctly applied.
The poser is: is it really possible to start naming all aspects of the
subjects that fall under labour and employment law like, saying the
NIC
has jurisdiction over teachers’ employment, army’s employment, workplace
defamation, workplace assaults and battery, workplace detinue,
ad infinitum
? It is definitely not feasible. The second question is: from the wordings
of S. 254C of the Constitution, is it clear that, in layman’s
view, they capture defamation and general torts? The answer is straight
yes. After all, the provisions did not also mention ‘termination’ and
‘dismissal’ or ‘disciplinary actions’, which are the commonest causes of
actions in industrial relations and it has not been argued that,
NIC
has no jurisdiction over them because they were not specifically listed.
And this is simply because, they are the traditional forts of industrial
relations litigations. The restrictive approach, which the learned
objector’s counsel is urging on the Court, boils down, for the umpteenth
time, to reluctance to let go the previous state of the law.
The phrase: “matters arising from workplace”in S.
254C-(1)(a) of the Constitution is clear enough and definitely
captures all torts and much more, arising from the workplace as a result of
industrial relations, more especially so that, there is a
labour concept known as “workplace defamation”. The fact that
there is the concept known as workplace defamation introduced into
the lexicon of employment and labour relations axiomatically suggests that,
it is a labour relations court [industrial Court], if one exists in the
jurisdiction and, it is a superior court of record with the requisite
powers, that must have jurisdiction over workplace defamation, a well-known
concept in industrial relations, except we want to deliberately give a
meaning inconsistent with the wording.
The concept of workplace defamation has assumed almost like
notoriety to the concepts of termination and dismissal in industrial
relations such that, it would be disservice to industrial relations to
ignore it in Nigeria. It is therefore the NIC, a workplace court,
which logically and constitutionally has jurisdiction over workplace
defamation. It could not have been otherwise. Being otherwise would be
absurd. This is the pattern in some other climes that have full-fledged
labour/industrial courts with superior court status and the requisite
powers like the NIC in Nigeria. When similar controversy arose in
Kenya, the Kenyan Court of Appeal held in relation to the
jurisdiction of the Kenyan Industrial Court over workplace
defamation in
Medical Research Institute v. Davy Kiprotich Koech (2018) eKLR
[3]
that:
“Section 11(1) of the Labour Institutions Act 2007 established the
Industrial Court…
In addition section 87(1) of that Act [the Employment Act 2007] specified
that; [sic]
‘Subject to the provisions of this Act whenever –
(a) …
(b) any question, difference or dispute arises as to the rights or
liabilities of either party; or
(c) touching any misconduct,
neglect or ill treatment of either party or
any injury to the person or property
of either party
, under any contract of service, the aggrieved party may complain to the
labour officer or lodge a complaint or suit in the Industrial Court.’
Thereafter, following the promulgation, the Constitution 2010 established
the specialized courts, that is, the employment and labour court and the
environmental court…
And pursuant to Article 162(2) of the Constitution, Parliament enacted the
Industrial Institutions Act and the Employment Act, 2007, and replaced the
Industrial Court as established under that Act with the Employment and
Labour Relations Court (ELRC).
In so far as the ELRC’s jurisdiction was concerned, section 4(1) of the
Industrial Court Act 2011 stipulated that:
(1) ‘In pursuance of Article 162(2)(a) of the Constitution, there is
established the Industrial Court for the purpose of settling employment and
industrial relations disputes and the furtherance, securing and maintenance
of good employment and labour relations in Kenya [sic
(2) The court shall be a superior court of record with the status of
High Court.
(3) The court shall have and shall exercise jurisdiction throughout
Kenya.’
Section 12(1) went further to specify that; [sic]
‘The court shall have exclusive original and appellate jurisdiction to hear
and determine all disputes, referred to it in accordance with Article
162(2) of the constitution [sic] and the provisions of this Act or any
other law which extends jurisdiction to the court relating to employment
and labour relations including all the other matters specified in the Act’
It is clear from this chronology of the enactments, that the position
prevailing prior to the promulgation of the 2010 Constitution, was that the
Industrial Court had exclusive jurisdiction to hear and determine all
matters concerning employment disputes or
that were employment related
…
Yet the respondent sought to file the suit in the High Court, instead of
the Industrial Court. But that said, there was an additional dimension to
the suit which involved a claim for defamation that
required to be taken into consideration. It is this aspect of the dispute
that the learned judge concluded was a matter that only the High Court
could determine, as this was an issue that went beyond the Industrial
Court’s remit…
A claim for defamation is a claim in tort or causing injury to an
individual, and the remedy or relief will usually be in general damages.
Before the establishment of the Industrial Court, this was a matter which
would have wholly been determined by the High Court. But whether the
Industrial Court, was sufficiently empowered to hear a claim for defamation
was dependent on the extent of the Industrial Court’s jurisdiction as
specified by the two Acts.
As seen above, sections 47 and 87(1) of the Employment Act 2007 were
explicit that the court had jurisdiction to deal with any question,
difference, or dispute as to the rights and liabilities of an employer
or employee, as well as on matters touching on misconduct, neglect, ill
treatment, or any injury to the person or property of either party or
infringement of statutory rights. Considering that the respondent’s
claim was that his
employer was alleged to have injured his person by way of
defamation
, we find that the court had the requisite mandate with which to
determine the dispute between the parties
.
But the matter does not end there. In view of our findings above, did the
court have the necessary powers to grant the reliefs sought? Our answer to
this would be in the affirmative. We say this because section 12(4) of the
Labour Institutions Act, 2007 stipulated that: [sic]
‘In the discharge of its functions under this Act, the Industrial Court
shall have the powers to grant injunctive relief, prohibition declaratory
order [sic], award of damages, specific performance or reinstatement of an
employee’.
Essentially, the above provisions endowed the court with sufficient powers
to hear, determine and grant appropriate reliefs such as damages,
injunctions, and specific performance, inter alia,
to matters that were of an employment nature
.”
It could be seen from the quotation that, just like S. 254C of the
Nigerian Constitution
did, the jurisdiction of the Kenyan Industrial Court, was granted
in general expansive and incorporative terms without the specific mention
of defamation or torts and, it was interpreted by the
Kenyan Court of Appeal
to cover workplace defamation. The Kenyan Court of Appeal took into
consideration whether there would be any absurdity in the
Kenyan Industrial Court
being unable to grant the appropriate reliefs and came to the conclusion
that, the court had all the necessary powers and therefore, fully competent
to adjudicate workplace defamation and therefore, had the exclusive civil
jurisdiction. The NIC has all the powers of a High Court,
and much more, by virtue of SS. 6(1), (3), (5)(cc) & (6) and
254D-(1)&(2) of the Constitution in conjunction with SS.
12-19 of the National Industrial Court Act [NICA].
So, there is no inability in the NIC to effectively adjudicate and
grant any reliefs appropriate to workplace defamation. In effect, no
absurdity could arise from its adjudicating work-context defamation. It
could be seen that the Kenyan Court of Appeal employed the literal
rule of interpretation and gave it to the Kenyan Industrial Court
when it was sure that, there was no absurdity resultant from the
application of literal rule.
It could also be seen that the Kenyan legislations under consideration did
not at any point specifically mention defamation or torts, but used general
words to capture workplace defamation like S. 254C of the
Nigerian Constitution
. The Kenyan Court of Appeal specifically relied on the provisions
that give the parties to employment contracts rights to sue for any injury
to their persons or properties, so far the injury arose from employment and
industrial relations, to arrive at the conclusion that the
Kenyan Industrial Court
was seised of jurisdiction over workplace defamation. The “injury”
phraseology is similarly covered under S. 254C-(1)(a) of the
Nigerian Constitution
, when the Constitution says that, the NIC shall have
exclusive civil jurisdiction in any “matters arising from workplace, the
conditions of service, including health, safety, welfare of
labour, employee, worker and matters incidental thereto or connected
therewith.”
The word ‘safety’ at Google is defined as: “the condition of
being protected or unlikely to cause danger, risk, or
injury
.” The Longman Dictionary of Contemporary English [6 th
Ed.] p. 1604 says, ‘safety’ means: “Not in danger: when someone or
something is safe from danger or harm.”
The law of defamation secures persons’ from unjustified harms or injuries
to their good names; and ‘right to good name’, is a thing, though
incorporeal. The word “safety” therefore encompasses, security from both
physical and mental injuries and therefore, covers the rights to security
from physical and proprietary injuries mentioned in the Kenyan statutes by
which the Kenyan Court of Appeal arrived at the conclusion that
the Kenyan Industrial Court has exclusive civil jurisdiction on
workplace defamation. It could be seen that this is very much similar to the
Nigerian method and any room for arguments is removed from the Nigerian
method when it goes further to say that all: “matters arising from the
workplace” shall be cognizable before the NIC.
And we should not forget that the NIC’s jurisdiction over
workplace defamation is directly conferred by the Constitution
unlike the Kenyan Industrial Court’s jurisdiction over workplace
defamation that is conferred by ordinary statutes, and not directly by its
Constitution, though made pursuant to the
Kenyan Constitution
, yet the Kenyan Court of Appeal gave it to the
Kenyan Industrial Court
: how much more the NIC whose jurisdiction is fully structured
into the Constitution non obstante? The advantage of the Nigerian
method is that, being constitutional provisions, they enjoy wider
applications [more expansive applications] than it would have been under
ordinary statute and, escape any reproach from conflict with other
statutory provisions and, other provisions of the Constitution
because of the severally repeated non obstante clauses of S. 254C of the
Constitution. A constitutional provision must be given broad
interpretation unless the context otherwise suggests –
Skye Bank Plc v. Iwu (2017) LPELR-42595 (SC) 160-163, F-E
. And there is no contrary suggestion in the provisions of S. 254C in
particular and the other provisions of the Constitution in
general. And besides, the phrases “connected with”, “arising from”,
“relating to” or “incidental to” and “including” that surfeited S. 254C of
the Constitution demonstrated an unequivocal intent to cover all
matters that arise from labour, employment and industrial relations,
whether they are litigated independently or in addition to any other labour
relations matters. In the language of law: being words of inclusive
expansiveness, they covered the fields –
INEC v. Musa (2003) LPELR-24927 (SC) 36-37, D-C; 35-36, B-A
. Litigating a matter is entirely the preserve of the litigants and not
that of the courts. A claimant therefore chooses the cause of action he
wants to litigate and is at liberty to abandon any. That is why a court
normally does not grant unclaimed relief. This derives from the law that a
court has no jurisdiction to dictate what infringement of a person’s right
s/he should challenge. The person has the right to select which violation
of his right s/he wishes to pursue and which reliefs s/he wishes to claim.
A person might be dismissed and defamed in the same dismissal letter and,
s/he choses to pursue the defamation alone without challenging the
dismissal or without asking for reinstatement, which is the situation in
the instant case. That s/he does so is not the concern of the defendant or
the court to ground an objection that the supposedly lone independent
workplace defamation action could not be sustained because; it was not
joined with another labour matter.
The important thing, for the NIC, like any other court, is
whether the matter being pursued arose from work-context or industrial
relations, which gives it its exclusive civil jurisdiction, while the duty
of the defendant is to offer his or her defence to the suit and not to
dictate to the claimant to file multiple causes of action and reliefs
against it. It is therefore patently wrong and insupportable by the
provisions of S. 254C of the Constitution that the claimant
herein cannot bring a standalone action on workplace defamation without
joining the issue of his dismissal. The phraseology of S. 254C of the
Constitution
does not support that view. S. 254C-(1) simply says the NIC has
exclusive civil jurisdiction over “matters arising from workplace” after
talking about matters that arise from employment and industrial relations.
So, the construction of “matters arising from workplace” cannot be limited
to matters arising from industrial relations. Had it been that was the
intendment of the constitution drafters, they would have left the phrase
out. Since it is there, it must have its full meaning –
Skye Bank Plc v. Iwu [supra] 160-163, F-E
.
I will cite the second example at the international scene where another
country with a labour court with similar jurisdiction and powers to the
NIC cedes exclusive civil jurisdiction over workplace defamation to
its labour court. That is the State of Israel. In an article titled: “Substantial
Damages to an Employee for Unlawful Termination and Defamation”, Galia
Shahar
[4]
reported the Tel Aviv Labor Court thus:
“The Tel Aviv Labor Court recently awarded ILS 250,000 in damages to a
longtime employee due to unlawful termination and
defamation
…
The court found that the employer could have ordered the employee’s
examination by a doctor on the employer’s behalf, thus disproving or
proving its concerns. However, in the absence of a medical opinion, the
employer had no right to draw medical conclusions about the employee.
The court also noted that the employer did not provide any evidence
justifying the employee’s dismissal, except for absenteeism due to her
medical condition.
Regarding the employer’s appeal to the health fund, the Tel Aviv Labor
Court found that
this act might substantially harm the employee’s good name
. Its reasoning was as follows: the appeal to the health fund was not
supported by anything medically relevant, the employer’s presentation of
the employee was biased and even false, and
the employer’s conduct harmed the employee’s good name
before the letter’s recipients and even the doctors who provided the
employee’s sick notes.
The substantial amount of damages granted to the employee reflects the
court’s displeasure with the employer’s conduct in this specific
termination process.”
With this further example from Israel, it is abundantly clear that the
NIC is not the lone labour court with exclusive civil jurisdiction
over workplace defamation. And we should not forget that the NIC
has constitutional and jurisdictional obligations to apply international
best practices in the adjudication and resolution of labour and employment
disputes under S. 254C-(1)(f) of the Constitution and therefore,
bound to follow the examples of the international best practices shown
above in interpreting the provisions of S. 254C-(1)(a) to assume
jurisdiction over workplace defamation. This is part of the jurisdictional
questions involved in the interpretation and applications of the provisions
of S. 254C-(1)(a) of the Constitution that has hardly been paid
attention to in all the authorities I have come across on this issue. Going
by the international best practices in this area of the law, as enjoined by
S. 254C-(1)(f) of the Constitution in conjunction with S.
254C-(1)(a) of the Constitution, the law emerges that the
NIC
unassailably has non obstante jurisdiction over workplace defamation.
The distinction between “matters arising from workplace” and the phrase
“matters connected with labour or employment” is important and marks the
expansive intention of the legislature to cover all civil causes and issues
howsoever named or styled that occur in the workplace. “Matters arising
from workplace” places emphasis on the facts that the causes of action
need not be typical labour causes traditionally known before now but the
fact that they arose from the workplace or occurred at the workplace gives
the NIC exclusive civil jurisdiction over them. Had it been that
it was not the intendment to give NIC exclusive civil jurisdiction
over whatsoever types of issues that arose from work-context, the
legislature would not have strained itself to use the phrase after it had
used the phrases “relating to or connected with any labour, trade unions,
industrial relations”, as legislatures do not employ words in vain and for
that reason, effects must be given to the clear unambiguous words and
phrases used in a statute literally, especially when they do not invite
ambiguity and absurdity –
Cocacola v. Akinsanya [supra] 121, D-G, 123, A-C, 141, D-F, 149-150,
E-A, 157-158, A-H, 159, F-G, 160, E-H; Ekejiuba v. INEC & Anor
(2016) LPELR-40926 (CA) 14-17, C
and,
Ojibara & Ors v. The Governor of Kwara State & Anor (2004)
LPELR-13002 (CA) 62, D-E
, where the Court of Appeal stated the position thus:
“…I must bear in mind two established principles of interpretation 1) The
legislature does not use words in vain. Therefore, 2) every word must, as
far as possible, be given its natural and plain meaning.”
I found that attention has not been specifically paid at all to the meaning
and effect of the phrase “matters arising from workplace” in the
construction of the provisions of S. 254C-(1)(a) of the
Constitution
conferring the NIC’s civil jurisdiction. Much attention has been
focused on “connected with”, “relating to” and “incidental thereto” phrases
with total abandonment of the phrase “matters arising from workplace”.
This is perhaps part of the problem in the construction of the provisions
leading to the attempt to deny the NIC civil jurisdiction on
workplace defamation duly conferred on it by the Constitution. The
phrase “ matters arising from workplace” is different
from all the other phrases and duly confers the NIC with exclusive
civil jurisdiction on any independent cause of action arising from the
workplace, so far it arises in the course of labour relations in the
workplace and would therefore cover the filing of an independent action on
workplace defamation, as a single cause of action not joined to any other
cause of action; as is the case extant. The phrase “arising from workplace”
obviously also covers actions between employees without the joinder of
their employer, as there is nothing suggesting otherwise in the
phraseology.
The arising from workplace phrase is therefore clearly meant to
encompass causes of actions that are not traditionally connected with
labour or employment but arose within work-context. The phrase, jointly
with the other phrases or construed in the context of the other phrases, is
the real marker of the NIC’s expansive jurisdiction and, it
definitely takes care of standalone matters like the instant case, so far
they arose from the workplace and in the course of industrial relations and
could not be settled without reference to the industrial relations fulcrum
of the supposedly independent cause of action. If the standalone theory is
sacrosanct, how come that workplace injury, which is also a tort, could be
litigated alone at the NIC without the joinder of any other cause
of action? This shows that the standalone theory has nothing to do with the
filing of a case but with the factual ramifications of the causes of action
of which the claimant is at liberty to choose which he would prosecute.
The nature of the present configurations of the NIC’s civil
jurisdiction, I found that it is not generally understood on why the
NIC
has jurisdiction over workplace defamation. Where a defamation arose in the
course of disciplinary actions or procedures, and it is sued upon as an
independent action, it would be thoroughly impossible to fathom how it
could be logically justified that it is not connected with labour because;
it was filed as an independent cause of action and being heard alone in
that manner or, that it is divorced from the industrial relations fulcrum
of its existence simply because, it was sued upon as a standalone cause of
action. And I want to observe that, there is no law that says defamation is
at all times a standalone subject that could not be ancillary to another
subject. The standalone doctrine, with grave respect, is a judicial coinage
that has no legal and logical basis. That defamation could be ancillary to
another subject or another cause of action or embedded in another subject
is the reason why there is the concept of workplace defamation, as
a legalese in employment jurisprudence, which clearly implies that such
defamation has its umbilical cord tied to the apron of workplace disputes.
This is the modern jurisprudence of labour relations around the world and
the judicature in Nigeria is bound to embrace it by virtue of S.
254C-(1)(f)-(h)&(2) of the Constitution.
It means the law recognises that there are peculiarities in defamation
arising from workplace or connected with workplace and by virtue of S.
254C-(1)(f)-(h)&(2) of the Constitution, as midwifed by the
Third Alteration Act, and Nigeria, through the NIC and
the Court of Appeal, is bound to kowtow to this cutting edge
innovation as the international best practice in this area of the law. With
the above explanation, it is clear that no other court in Nigeria has the
authority to adjudicate workplace defamation suits, except the NIC,
so far the causes of action arose from the workplace. This conclusion is
strengthened when it is realised that, S. 254C begins by directly naming
the jurisdictional sections of all the superior courts of first instance in
Nigeria [SS. 251, 257, and 272 of the Constitution] and directly
subjugates them to the NIC’s civil jurisdiction. It is not a
matter of jurisdiction grabbing but the only method available to avoid
controversies like this, where there is more than one court with exclusive
jurisdictions. The legal implication of this is that, wherever it is
hazarded that there is ambiguity or conflict about the jurisdictional
competences of the NIC and any other superior court of first
instance in Nigeria, the NIC automatically has the exclusive civil
jurisdiction, as the Constitution forbids the struggle for
jurisdiction between the NIC and any other court in the country,
as such, no ambiguity could be resolved in favour of any other court of
first instance against the NIC. And there is no ambiguity in this
instance.
In this wise, with all due respect, it appears unsupportable in law and
logic to say the NIC has no civil jurisdiction over torts
generally. It has exclusive jurisdiction over all workplace torts generally,
including workplace malicious prosecution, workplace assaults, bullying and
harassments, which are clearly “matters arising from workplace, the
conditions of service, including health, safety, welfare of labour,
employee, worker and matters incidental thereto or connected therewith”
over which S. 254C-(1)(a) of the Constitution ably conferred the
NIC with exclusive civil jurisdiction. The language is clear enough
beyond arguments. And any doubt is removed if one considers the combined
provisions of S. 254C-(1)(b)&(f)-(h)&(2) of the
Constitution
. Section 254C-(1)(b) gives NIC exclusive civil jurisdiction over
the interpretation and applications of all labour statutes and for this
reason, statutes like the Factories Act [FA],
Employees Compensation Act [ECA],
Trade Unions Act
[TUA], Labour Act [LA]
etc. all come within the exclusive civil jurisdiction of the NIC
and, they all verge on issues touching on safety of workers/employees
against workplace injuries/torts and against breach of duty of care leading
to factory accidents, injuries and the like. They cover negligence, failure
to provide safety gadgets leading to accidents and the resultant injuries
etc. and, all these fall under the canopy of tort.
If the NIC has exclusive civil jurisdiction over all these
statutorily created protection against torts: why would it lack
jurisdiction over common law workplace torts; especially as the language of
S. 254C-(1)(a), as quoted earlier, clearly suggests that it has? Going by
the example of S. 87(1)(c) of the Kenyan Employment Act 2007,
which provides for rights to safety of employers and employees against
injuries to their persons and properties, which the
Kenyan Court of Appeal
interpreted to mean the Kenyan Industrial Court has exclusive
civil jurisdiction over workplace defamation, it would not be far fetched
to deduce that, the Kenyan Industrial Courttoo, has jurisdiction
over all other types of workplace torts: assaults, harassments, injuries
resulting from workplace accidents etc. And the phraseology of S.
254C-(1)(a) of the Constitution, especially the phrase “matters
arising from workplace” is clearer than that of the S. 87(1)(c) of the
Kenyan Employment Act that the NIC has expansive
jurisdiction beyond strict labour and employment disputes. S. 12(1) of the
ECA shows clearly that employees have a choice either to claim
under the ECA or under the common law.
It would be absurd to expect that when the employee claims under common
law, he has to go to the High Court over the same issue he
compulsorily has to prosecute in the NIC by virtue of S. 55(4) of
the ECA, if he chose to pursue his right under the ECA.
In any case, the Constitution does not give the victim-employee
the right to even make a choice, as S. 254C-(1)(a) of the
Constitution
clearly ceded exclusive civil jurisdiction to the NIC when it
stated that, the NIC has exclusive civil jurisdiction on: “matters
arising from workplace, the conditions of service, including health,
safety, welfare of labour, employee, worker and matters incidental thereto
or connected therewith” and matters connected with or related to any
labour or industrial relations. The words used therein clearly covered all
types of torts that can happen at the workplace: assaults, malicious
prosecution, battery, harassments, economic torts, detinue etc. It should
also be noted that workplace torts are an area of labour law that the
ILO
has special interests in, with clearly fashioned out cutting edge treaties
– ILO C155 –
Occupational Safety and Health Convention, 1981
; and ILO C190 – Violence and Harassment Convention, 2019.
ILO C155 covers all sorts of tortious injuries, physical and mental
injuries that could arise as a result of unsafe workplace or
work-environment[5],
while ILO C190 covers all sorts of tortious assaults and
harassments that one could think of, including: workplace malicious
prosecution and defamation.
I do not think it could be respectably argued that malicious prosecution is
not a form of harassment [judicial], while workplace defamation come well
within the definition of harassment under ILO
C190[6],
which regards a single occurrence of an offensive act or conduct as
satisfying the definition of harassment
[7]
instead of the usual repeated occurrences commonly regarded as harassment.
After all, nobody doubts that malicious prosecution is a classical form of
abuse of judicial process to the irritation and annoyance of the victims
for purposes of harassment to tire out the victims. And if this happens in
the workplace or in the course of work, I wonder how it could be safely
argued that the NIC has no civil jurisdiction thereon. Nigeria has
ratified both conventions and, by virtue of S. 254C-(1)(f)-(h)&(2) of
the Constitution, only the NIC can apply them to torts.
They constitute statutory interventions in work-context torts. Ceding
jurisdiction on workplace defamation and other torts to the
High Court
, which is constitutionally barred from applying these international labour
law instruments means, workers/employees in Nigeria would be denied the
opportunities of enjoying the benefits of these international labour law
instruments at the High Court while adjudicating torts, since it
has no jurisdiction to apply them.
This is another cogent reason that shows that the expansive school of
thought is, after all, right and, fittingly appreciated the philosophy
behind the grant of expansive civil jurisdiction to the modern NIC
over all workplace issues. It did not occur to the learned objector’s
counsel that substantial part of issues arising from wrongful discharge
[terminations/dismissals], which has been the traditional fort of employment
law, actually falls under tort. This is what the authors,
Find Law Attorney Writers
[8],
say about the law of wrongful discharge in Nevada:
“Wrongful discharge can arise under three circumstances: violation of
statute (i.e. discrimination), breach of contract, or a tort action
involving bad faith or tortuous discharge…A tort action can be brought for
bad faith discharge, when a contractual relationship exists or for tortuous
discharge, in the absence of contractual relationship…
In order for an employer to be liable for the intentional tort (assault or
battery) of an employee, that tort must occur
within the scope of employment
…”
With the above, I do not think it can be seriously argued that the
NIC
lacks jurisdiction on tort of wrongful termination/dismissal because it is
independent. Bad faith discharge covers defamatory discharge whereby a
worker is defamed in the discharge letter. Traditionally, actions in tort
have always been brought on interference with the performance of contracts
generally, inclusive of tort of wrongful interference with the performance
of contracts of
employment[9].
Inducing breach of contract of employment might involve a third party to the
contract or a co-employee. And all these are purely employment matters. We
can now see why the jurisdiction of NIC is not limited merely to
cases of employees versus employers but goes beyond to include disputes
between two employees and, even third parties versus employers or, third
parties versus employees in cases of companies’ employee-agents and, all
those things that are connected with them. This is what the
Court of Appeal
in MHWUN v. Ehigiegba [supra] correctly recognised when it
held that:
“It is important to note that section 254C(1)(a) of the Nigerian
Constitution, 1999 confers an expansive jurisdiction on
the Court to adjudicate on any matter arising from the workplace…The idea
behind this…is to remove any limitations or obstacles on the categories of
claims or reliefs which the Court can entertain arising from the workplace
or employment issues…It is now settled principle of interpretation of
statutes that the
law maker does not use any words in vain
…”
Similarly, in Nwagbo & Ors v. NIA [supra] the
Court of Appeal
held that: “It is clear from the provisions of Section 254C of the
Constitution that the jurisdiction of the National Industrial Court is not
limited to disputes between employer and employee only; it extends to any
dispute related to labour and industrial relations.” It is for this reason
that the NIC assumed jurisdiction over a case of economic duress
that arose in work-context –
Osazuwa v. International Tobacco Company &
Anor[10]
. The NIC also assumed jurisdiction on workplace detinue that
arose in the course of employment relations and at the workplace in
El-Aminu Yakubu v. Bontus Oil and Gas Nigeria Ltd &
Ors[11]. Therefore, the NIC
undoubtedly has unobtrusive jurisdiction on all forms of torts, including
workplace defamation, assaults, malicious prosecution,
detinue[12],
workplace injuries, economic loss/duress
[13]
etc. so far they arose out of the workplace or arose in work-context.
It is for the reasons of: “matters arising from workplace”;
“relating to or connected with” any industrial relations and, “incidental
thereto or connected therewith” too, that the NIC has jurisdiction
to entertain suits filed by relations or next-of-kin of deceased
employees/workers to claim the deceased-employee’s terminal benefits and
other accrued entitlements, even though, the action is not directly between
the employer and the deceased-employee, the two original parties to the
employment relationship and, for which Order 10 of the
National Industrial Court of Nigeria Civil [Procedure] Rules, 2017
[NIC Rules] is germane. It is equally for these
reasons that the family/next-of-kin of a deceased-employee could lawfully
sue the employer, even though, not a party to the contract, for damages
resulting from tort of industrial accident leading to the death of an
employee.
You will all agree with me that industrial accidents and assaults for which
the ILO has made specific conventions [ILO C155 & C190],
and which only the NIC has jurisdiction to apply and, which some
labour statutes in Nigeria, as already shown before now, have also made
provisions on, are all torts, equally with special requirements in pleadings
and proof, just like workplace defamation. To the extent that we concede
jurisdiction to the NIC on these, there is no basis, apart from
the fact that ILO conventions also cover workplace defamation, to
contest the NIC’s exclusive jurisdiction on workplace defamation.
So, the arguments that because, defamation has special requirements in
pleading and proof, the NIC cannot entertain it, are therefore
shown to be manifestly faulty. If cases of industrial accident-injuries,
which are undoubtedly torts; are being adjudicated in the NIC with
their special requirements in pleadings and proof, why would the
NIC
be precluded from entertaining workplace defamation with its special
requirements? There appears to be no justifiable reason. Is it being said
that lawyers would not know what to plead and prove because, the cases were
filed in the NIC or that, the labour court itself would not
understand these requirements, which it understood in regard to the
workplace injuries, which are also torts? The answer is axiomatic.
Just as some lawyers constantly fail to expertly plead and prove defamation
in the High Court and some succeed in doing the right things, the
same thing will also happen at the NIC. When they do the right
thing, the cases are won, if the facts merit winning and, when they failed
to do the right thing, the cases are lost irrespective of the facts, not
because they were filed in the NIC but because, that is the way of
the law in all courts, the NIC and the High Court
inclusive. To further cement the law that the NIC has exclusive
jurisdiction over workplace defamation, the fact that special work-context
nuances have been brought about in this area of labour law as the
international best practices is germane. I will get to this now.
A careful note of my clarifications so far would reveal that four of the
five dimensional natures of the NIC’s civil jurisdiction have
been carefully examined and articulated above. They are: 1. The “relating
to or connected with” phrasal connotation. 2. The “matters arising from
workplace” phrasal dimension. 3. The “including” doctrine of its
jurisdiction. 4. The “matters incidental thereto or connected therewith”
phrasal dimension. 5. The unfair labour practices and international best
practices dimension of its jurisdiction introduced by S.
254C-(1)(f)-(h)&(2) of the Constitution. The initial four
aspects of NIC’s civil jurisdiction were ushered in by S.
254C-(1)(a) of the Constitution; and we have fully examined them.
We shall now examine the unfair labour practices and international best
practices dimension of its jurisdiction.
This aspect, I found, has been completely ignored in all the literatures
reviewed; as none of the judgments of the Court of Appeal, both
for and against NIC’s jurisdiction on workplace defamation, looked
at the question from this prism and, neither have the arguments of the
lawyers in these previous cases addressed it from this angle too nor, even
the judgments of the NIC itself before now touched this aspect of
its jurisdiction with regard to its civil jurisdiction on workplace
defamation, except in
Marshal Ofeh Ijikeme Ikpor v. The Corps Marshal & Chief Executive,
Federal Road Safety Corps & Anor
[14]
where the NIC cursorily examined this question. I also found that,
all the legal writers I have read have not addressed this point too. They
all looked at the question of NIC’s civil jurisdiction over torts
from the prism of the construction of S. 254C-(1)(a) of the
Constitution
alone, whereas, S. 254C-(1)(f)-(h)&(2) of the Constitution is
the most radical of all the dimensions of the NIC’s civil
jurisdiction. These provisions showed irrefutably why the NIC’s
jurisdiction is made expansive under the current jurisdictional
configuration ushered in by the Third Alteration Act and, revealed
the futility and absurdity of not allowing NIC to exercise the
exclusive expansive civil jurisdiction so granted it. Let us now go into the
meat.
Arising from the above, the NIC has the constitutional
obligations to eradicate unfair labour practices from the world of work in
Nigeria; and in doing this, it must apply international best practices
derived from other jurisdictions and international sources, particularly as
contained in the ILO instruments and other international labour law
instruments to arrive at the best international practices and standards in
the resolution of labour disputes. Since the NIC is conferred
with the sacred constitutional non obstante obligation to apply
international best practices; and there are already international best
practices applicable to workplace defamation, how does the nation obey this
obligation if the NIC is denied jurisdiction on workplace
defamation? How does S. 254C-(1)(f)-(h)&(2) of the Constitution
fulfill itself? This makes bare the absurdity of denying the NIC
exclusive civil jurisdiction duly conferred on it by the
Constitution
over workplace defamation and other torts.
It is in this wise that, the NIC is the only Court with
jurisdiction on workplace defamation and other workplace torts because, it
is the only Court that can enforce the international best practices in this
area of the law and the ILO and other international labour law
instruments, as I have shown before now. It is because of this complex
nature of modern labour law that the civil jurisdiction of the NIC
is couched in expansive and all-inclusive manner in order to enable it meet
the constitutional mandate of a cosmopolitan labour court that the
Constitution
envisaged for it. It might not be generally known that one of the major
reasons for the reestablishment of the modern NIC as a superior
court of record is the need for Nigeria, as a member of the ILO,
to escape the then perennial queries from the ILO for failing to
enforce the ILO treaties it had ratified in the course of
industrial
relations[15].
It is for this that Nigeria reestablished the NIC to cater for the
obligations arising from the ILO and other similar international
labour organisations to which Nigeria is a member in order to be able to
enforce these international labour instruments municipally in the world of
work while adjudicating labour
disputes[16].
The learned author James Rika, in his incisive article: “The Proper
Role and Jurisdiction of the Industrial
Court[17]”: was more forthright in the history
behind the constitutional reestablishment of the
Kenyan Industrial Court
by revealing that the ILO and other social partners were directly
instrumental to its reestablishment and for the sole purpose that, Kenya
fulfills its obligations to the ILO and other international labour
law organisations. He puts it like this:
“The Industrial Court, more than any other Court has a role applying,
international law to domestic labour market. We are the Institution that
the International Labour Organization look up to, to implement the
International Labour Standards.
The labour law reforms of 2007, which first suggested we could be a
Superior Court, were driven by the ILO and the social partners.
We have a role to promote and protect international labour standards. It
would be in the interest of this Court, that the Judiciary does not lose
touch with the ILO otherwise we make ourselves unable to understand the ILO
agenda, and our role in its fulfillment.”
From the foregoing, we can now understand better the place of the
ILO
instruments and other international labour law instruments in the expansive
jurisdiction of the NIC. The ILO queries majorly led to
the reestablishment of the NIC as a superior court of record, and
ever since the reestablishment, the compliance level of Nigeria has
improved, but the nation is still facing teething problems because of the
problems associated with delineating the frontiers of the NIC’s
jurisdiction, as is presently the case, as some labour cases are still
being filed in the wrong courts, thereby denying the nation the opportunity
to fulfill its labour law obligations on such cases and the continuing
resultant queries. Of recent, Nigeria received queries on her failures to
enforce some maritime treaties it ratified, which included maritime labour
instruments. This is because, some of these cases that were labour cases
were wrongly filed in the FHC
[18]
and, the FHC lacks jurisdiction on any type of labour relations,
be it maritime labour claims
[19]
and more particularly so, it lacks jurisdiction to enforce ratified but
undomesticated treaties and international labour
standards[20].
With the above hindsight, we have to do a rethink of our perception of the
modern expansive jurisdiction of the NIC. Wherever the issue of
unfair labour practices are involved and they arose from the workplace or
are related to industrial relations, the NIC is the Court with the
exclusive civil jurisdiction over the matter because international best
practices must be applied to remedy the unfair labour practices. And in the
world of industrial relations, the special needs of workplace defamation
has been recognised and catered for.
And it looks difficult to fathom how the publication of defamatory
materials against an employee by the employer or co-employee on workplace
issues can escape the radar of unfair labour practices. To defame an
employee without defence is even worse than termination of employment
simpliciter. This is because; it can effectively take away the possibility
of securing another work. What else could be a more unfair labour practice
than that? I do not think there is. Therefore, by virtue of S.
254C-(1)(f)-(h)&(2) of the Constitution, the NIC has
an unobtrusive jurisdiction to remedy proven cases of workplace defamation
by the application of international best practices. And I so hold. Such is
the specialty that the phrase, “workplace defamation”, has been coined for
defamation that arose in the course of labour and employment relations; and
the international best practices in this area of the law is that, special
rules have been evolved for some peculiarities in the nature of workplace
defamation. There is now the doctrine of “compelled
self-publication/disclosure[21]” whereby the rigour of
proof of publication in defamation has been obviated in workplace
defamation in the circumstances where it may be difficult or impossible for
the injured person to prove publication. This is usually in relation to
termination/dismissal/discharge.
In such cases, such libel is only communicated to the injured person
through letter of discharge and, to the proper persons or authorities
within the workplace that are officially supposed to be notified for the
efficaciousness of the discharge letter and, not to unconnected staffers,
regarded as third parties
[22]
. Under normal libel in common law, it would have meant there is no
publication because of the lack of the employer’s direct publication of the
libelous discharge letter to a third party, since the communication to
rightful authorities within the workplace is privileged, but the law
implies publication in a situation where it is clear, the victim-employee
would compulsorily have to disclose the defamatory discharge letter to
third parties when seeking another employment and, has actually disclosed
it and lost the potential job as a
result[23].
And here, we are faced with allegations of workplace libel contained in a
dismissal letter thus, falling squarely within the radar of the doctrine of
“compelled self-publication/disclosure”. Whether or not the
prerequisites are met is to be seen at the appropriate place in the
judgment but that the allegations fall under the possibility of compelled
self-publication, there is no doubt.
Denying the NIC jurisdiction would mean that workers/employees in
Nigeria are not allowed to enjoy the benefits of the international best
practices in this area of the labour law, contrary to the mandate of S.
254C-(1)(f)-(h)&(2) of the Constitution, which seeks to make
modern Nigerian labour law cosmopolitan. For these reasons, wherever the
issues of unfair labour practices and international best practices arise,
the NIC has undoubted non obstante jurisdiction. For example, it is
in this wise that erudite B.B. Kanyip, HPNICN, in assuming
jurisdiction over “employee loan”, another recondite area of the
civil jurisdiction of the NIC, which has equally been embroiled in
similar controversies of irreconcilable decisions, like workplace
defamation, observed in Asana v. FBN
Ltd[24]:
“…the goal of labour law is to ensure that no employer can be allowed to
impose – and no worker can be allowed to accept – conditions of work which
fall below what is understood to be a decent threshold in a given society
at a given time.’ The defendant should not, indeed cannot, be allowed to
impose on the claimant a fait accompli – entice the claimant with an
employment loan at low rate, then turn around and constructively dismiss
her and convert the low rate loan to one of higher rate. Head or tail, the
employer benefits much against the interest of the claimant. This cannot
be.”
Also in Aneke Arinze Leonard v. Ecobank Nig.
Ltd[25], the NIC further
expatiated the nature of NIC’s jurisdiction under the doctrines
of unfair labour practices and international best practices when it assumed
jurisdiction over employee loan. For further example, Article 1(2) of the
ILO C181, which deals with triangular employments midwifed by
private recruitment agencies says: “For the purpose of this Convention,
the term workers includes jobseekers.” This showed
immediately that the jurisdiction of the NIC transcends mere
employer-employee relationships and verged on any issues connected with
labour or industrial relations. The labour rights of prospective employees
are recognised and protected thus, conferring NIC with jurisdiction
on disputes between non-employee and employer. So, unlike under common law,
in the modern jurisprudence of labour law, a non-employee could sue an
employer of labour for the violations of some rights: i.e. discrimination,
thereby evading the doctrine of privity. And this marks the nature of the
NIC’s civil jurisdiction under the doctrine of unfair labour
practices and international best practices midwifed by S. 254C-(1)(a),
(f)-(h)&(2) of the Constitution. This Convention also
raises the question of sanctity of the doctrine of privity in relation to
triangular employment relations and shows the anchor of the NIC’s
jurisdiction to bypass the doctrine of privity in appropriate cases.
From the foregoing, it must now be abundantly clear as daylight that, the
NIC’s civil jurisdiction is intentionally made expansive under the
Third Alteration Act in order to cater for the country’s
international labour law obligations and the application of the doctrines
of unfair labour practices and international best practices as commanded by
S. 254C-(1)(a), (f)-(h)&(2) of the Constitution, contrary to
the restrictive-school-of-thought’s insistence on NIC’s former
narrow jurisdiction under the TDA and, to a large extent, under
the NICA. I so hold. The TDA and the NICA did
not have coterminous jurisdictional provisions with the
Third Alteration Act
and as such, both statutes, which are ordinary statutes, could not be
invoked as aids to the interpretation of S. 254C, and at worst, as limiting
the NIC’s expansive civil jurisdiction. Literal rule shows that
the NIC now has expansive civil jurisdiction and since there is no
ambiguity resulting in absurdity in the application of literal rule; the
expansive civil jurisdiction must be left unscathed in accordance with its
tenor. Even if the purposive rule or the mischief rule is applied
correctly, it favours the conferment of expansive civil jurisdiction on the
NIC, having seen the rationale for that.
It is necessary to introduce a caveat at this juncture that, the doctrine
of compelled self-disclosure/publication is not applicable in
cases of workplace defamation outside the narrow bounds of defamation
contained in terminal letters. In all other cases, proof of publication
remains as under the common law, but the question remains constant: whether
workplace defamation has the potentiality to negatively impact the present
and future employment prospects of the defamed employees? And if the answer
is yes; workplace defamation is implicated and, only the NIC has
the non obstante jurisdiction to adjudicate it. This question, the learned
authors – Aluko & Oyebode
[26]
– framed in another way, which they christened the “But For Test”:
which posed the question: would the defamation have happened without
employment relations or without the work-context? And they surmised that,
if the answer is no: workplace defamation is implicated and the NIC
has the exclusive civil jurisdiction over it. Rarely will any defamatory
material arising from workplace be without serious consequences on the
employment prospects of the victim-employee or
victim-employer[27], more particularly so when the employers
and employees have corporate images to
protect[28]. That is why even accusations of
infidelity [tort] at the workplace must come to the NIC because,
head or tail, it has serious implications on the victim’s work
prospects[29].
To defame an employee with the potentiality of negatively impacting his
employment prospects is definitely unfair labour practice that demands the
best international practices around the world to remedy because, labour
rights have been elevated to fundamental human rights, especially the right
to
work[30]. So, by dint of S.
254C-(1)(f)-(h)&(2) of the Constitution, which anchored the
eradication of unfair labour practices and granted the NIC the non
obstante jurisdiction over them, and gave it the twin obligatory
jurisdiction to remedy unfair labour practices with international best
practices, as reflected in ILO instruments and other
international labour law instruments/practices, the NIC has
exclusive jurisdiction over workplace defamation. I so hold. It was partly
under unfair labour practices that the Israeli Labour Court assumed
jurisdiction over workplace defamation for, it held that the employer was
biased and being biased, is an instance of unfair labour practices.
Luckily, the Court of Appeal, in
Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA),
has validated NIC’s non obstante jurisdiction under S.
254C-(1)(f)-(h)&(2) of the Constitution, though, in relation
to the types of radical reliefs, unknown to the common law, that the
NIC
could award. It is nonetheless significant that it has set in motion the
ratio decidendi that, the NIC has exclusive jurisdiction
to eradicate unfair labour practices and inculcate international best
practices in the world of work in Nigeria in line with the ILO’s
decent work mantra. And for this reason, the NIC is not tied to
the apron of the common law and could therefore, do some unique things
hitherto unknown to the previous Nigerian labour law; especially with the
innovative provisions of SS. 12-19 of the NICA, which accentuated
S. 254C-(1)(f)-(h)&(2) of the Constitution. Consequently, I
quote extenso how the NIC applied international best practices of
“compelled self-publication” to workplace defamation in
Marshal Ikpor’s case
[supra]:
“I found that, there abound a lot of conflicting decisions on the issue of
the jurisdiction of this Court on defamation in employment matters,
unfortunately from this Court itself, and the Court of Appeal –
see
Bisong v. University of Calabar (2016) LPELR-41246 (CA) 37-38, E and
MHWUN v. Ehigiegba (2018) LPELR-44972 (CA) 28-36, E-C and Ecobank Nig.
Ltd & Ors v. Idris (2021) LPELR-52806 (CA)
as examples… Such is the disturbing level of the conflicting decisions
that, it elicited a full-length article from two lecturers of the premier
University of Ibadan: Eyongndi and Onu in “The National
Industrial Court Jurisdiction Over Tortious Liability Under Section 254C
(1)(A) of the 1999 Constitution: Sieving Blood From Water” published
at https://www.academia.edu
[accessed July 23, 2022].
In this incisive article, the authors gave reasons for the unsettled state
of the rationes decidendi in this important area of the law and
proffered solutions. I observed that, while their suggested panacea might
help, it only scratched the problem but did not curb it. There is therefore
the need to unearth the root of the problem and get it uprooted from the
source to put an end to the nagging problem. This is more disturbing
because of the fact that, even this Court itself has shunned out conflicting
decisions on this very issue. So, the problem is more, that of this Court
itself than the Court of Appeal. And any solution must find the
reason for the uncertainty in this aspect of the law by this Court itself.
Part of the reason is that, defamation under common law has peculiar
demands in pleadings and proof, before the common law courts; one of which
is that, the victim-claimant must plead and proof [sic] publication, which
most often, are not properly done and are most often too, not even possible
in employment defamation.
The solution is to see how the world of works relations has reacted to this
peculiarity in employment-relations defamation. I observed that, this is
the real cause of the conflicting decisions and why, some defamatory
actions that would succeed in other climes, normally failed in the
NICN
. The world of works relations has upped her expertise in this area of the
law, by recognising exception to the requirement of proof of publication
when it comes to employment-related defamation, especially in cases of
termination – see Richard J. Larson, “
Defamation at the Workplace Employers Beware”
in
Hofstra Labor and Employment Law Journal: Vol. 5: Iss. 1, Article 2
at
http://scholarcommons.law.hofstra.edu
[accessed July 23, 2022]. The article gives a general survey of this new
area of the law, particularly with regard to the changed world-view on the
issue of proofs of publications in the world of employment relations’
defamations.
That is the in-thing in employment-relations defamation in the world of
work today. Following the jurisdiction of this Court under S. 254C-(1)(a),
(f) & (h) of the 1999 Constitution [as altered], the
NICN
is the Court with exclusive civil jurisdiction on employment related torts
of defamation. This is because, it is the only Court constitutionally
empowered to search for and apply international best practices in resolving
labour and employment disputes and the only Court empowered too, to search
for and apply international labour standards and treaties in the world of
works.” – [P. 36-37]
It seems strange, illogical and contrary to the spirit of the
Third Alteration Act
and the ILO decent work agenda that an employee would be defamed in
his workplace and the High Court, a non-specialist court, would
have jurisdiction to try the matter when the technical name –
workplace defamation
– now exists as a significant sub-subject of labour law, clearly suggesting
it is within the exclusive jurisdiction of the NIC, a
workplace dispute court
and, when it is clear too, the defamation is rooted in employment
relations. Even if the High Court, a non-specialised general
jurisdiction court, appreciates the need to apply these nuances; as it lacks
the jurisdiction to eradicate unfair labour practices and apply
international best practices, it cannot do anything in that regard, and its
adjudication will be deprived of the constitutional mandates in S.
254C-(1)(f)-(h)&(2) to the detriment of the intended beneficiaries
thus, revealing an unintended negative consequence of the restrictive
interpretation of the provisions of S. 254C of the Constitution.
This shows clearly that the High Court lacks jurisdiction over
workplace defamation.
It is also necessary to draw attention to the fact that the
High Court
also lacks jurisdiction to apply ratified but undomesticated international
labour treaties by virtue of S. 12(1) of the Constitution to which
it is still tied, while the NIC has been freed from this
restriction by S. 254C-(2) of the Constitution. The NIC
can also apply international labour standards by virtue of S. 254C-(1)(h)
of the Constitution, which the High Court has no
jurisdiction to do. Since these instruments cover virtually all aspects of
the NIC’s expansive jurisdiction and are constantly applied in the
adjudication of cases by the NIC, to cede jurisdiction to the
High Court
on any aspect of the expansive jurisdiction of the NIC is to
negative S. 254C of the Constitution and deny the workforce of
their benefits.
To tow the line of the restrictive school of thought would therefore mean
that the provisions of the Constitution are being interpreted to
achieve the direct opposite of their tenor to defeat the intendment of the
legislature. So, the literal rule is the correct rule, which is in line
with the view of the expansive school of thought, to adopt in the
construction of the provisions of S. 254C of the Constitution. And
the law is that, once the Constitution speaks clearly and covers
the field, all other laws must bow. The common law and statutory laws [the
TDA & NICA] being cited against the NIC’s
exclusive expansive civil jurisdiction on workplace defamation and general
torts must therefore bow. It would be disobeying the Constitution
and abdicating Nigeria’s obligations to the ILO and other
international labour law organisation, to compel the NIC to
abdicate jurisdiction over workplace torts in general and, workplace
defamation in particular, to the High Court, a non-specialist
court.
The doctrine of compelled self-publication/disclosure is the modern
currency of workplace defamation and, having been seen to be objectively
for the benefits of the stakeholders in industrial relations and to the
advantage of industrial harmony and sustainable economic development,
Nigeria is bound to buy into it in accordance with the dictates of S.
254C-(1)(f)-(h)&(2) of the Constitutioncombined with SS. 13, 14
& 15 of the NICA and, the jurisprudence of labour courts
around the world to consider the wider economic interests of the society in
adjudicating labour cases, which S. 10(3)(a)&(b) of the Trinidad and
Tobago Labour Relations
Act[31]captures by
providing that:
“Notwithstanding anything in this Act or any other rule of law to the
contrary, the Court in the exercise of its powers shall –
(a) make such order or award in relation to a
dispute before it as it considers fair and just, having regard to the
interest of the persons immediately concerned and
the community as a whole
;
(b) act in accordance with equity, good
conscience and substantial merit of the case before it,
having regard to the principles and practices of good industrial
relations
.”
The old laws have gone with regard to the NIC’s jurisdiction and
are now replaced with the new state of the art innovations, as ushered in
by the Third Alteration Act. I so hold. The old law must be
unlearned while the new law, as contained in the
Third Alteration Act
, particularly S. 254C, must be learned. That settles the 5 th
dimension of the nature of the NIC’s exclusive expansive civil
jurisdiction. It is therefore indubitably established that the NIC
has non obstante civil jurisdiction over work-context torts in general and
much more, in as much as the civil issue arose from the workplace, contrary
to the restrictive school of thought. And I so hold.
May I state at this juncture that the world of work in Nigeria has even
always recognised the special needs for workplace defamation even before
the enactment of the Third Alteration Act and, the judiciary had
risen to the occasion and innovated a special measure by inverting the
requirements of proof in the popular doctrine that, where an employer gives
reason for discharge, s/he is hooked with the reason, as s/he must justify
it to the satisfaction of the court to sustain the discharge -
SPDC v. Olarewaju [2008] LPELR – 3046 [SC], 19, E-G
. It is only that the development was atrophied at that rudimentary stage
without being fully developed to capture workplace defamation in its full
breadth, as has happened in other advanced democracies.
The NIC in its pre- Third Alteration Act period had upped
this doctrine beyond the rudimentary stage at which it atrophied under
common law in Nigeria by insisting that wherever there is peremptory
termination, even without mentioning a reason, it carries with it the
implied stigma that the victim-employee did something heinously wrong to
warrant such sudden termination and that; this is deemed to have negative
effects on the employability prospects of the victim-employee and must be
remedied. But this development did not reach the full advancement of
compelled self-publication to negate the rigour of publication in deserved
instances. Thus, in
Industrial Cartons Ltd v. NUPAPPW (2006) 6 NLLR (Pt. 15) 258
, a case of wrongful termination of employment, the erstwhile NIC
decided pre- Third Alteration Act that, one month salary in lieu of
notice would not meet the justice of the case because of the peremptory
manner by which the claimant’s appointment was terminated, which it held,
had the effect of suggesting that the claimant did something wrong. That,
it said, tarnished the victim-employee’s image. The then NIC
awarded six months salaries for the ruffled reputation.
As far back as 1968, the ILO in “Judgment 121: Twentieth
Ordinary Session of the Administrative Tribunal of the League of Nations,
1968”[32],
involving
Agarwala v. United Nations Food and Agricultural Organization [FAO]
, held on workplace defamation:
“By the letters of 8 and 9 June 1966 the complainant was relieved of his
duties and in effect forbidden to call at his office… Since his emoluments
have been fully paid, he has suffered no material damage,but he
has suffered moral damage.He is entitled to compensation for the
distress caused by the abrupt way in which he was treated, tantamount in
its form to summary dismissal,
and for the injury done to his reputation and to his prospects of
obtaining other employment
. The Tribunal fixes this compensation at 6,000 dollars.”
This proves to the hilt that the ILO has, for at least, the past
56 years, fully recognised the tort of workplace defamation as an integral
part of industrial relations. It is all about innovation and proactivity,
which Nigeria must now imbibe by virtue of S. 254C-(1)(f)-(h)&(2) of
the Constitution. The Israeli Labour Court, as cited
earlier on and, in another case, reported by Luth Levush, “Israel:
National Labor Court Quintuples Compensation in Occupational Harassment
Case”[33], had relied consistently on the doctrines
of good faith and fair dealings to innovate rules to circumvent common law
obtuseness and dealt with workplace harassment, even though, there is no
specific statute that gave it jurisdiction to adjudicate and award remedies
over workplace harassments. Workplace harassment is an aspect of torts.
This shows that the Israeli Labour Court has exclusive jurisdiction
over all workplace torts. At common law, even though, workplace defamation
was not originally recognised, the need to cater specifically for it was
however later recognised at some point, as reported by the learned authors:
John Bruce Lewis et al, in their erudite work: “Defamation and
the Workplace: A Survey of the Law and Proposals for
Reform[34]”:
“With the coming of the Industrial Revolution during the eighteenth
century, England changed from an agricultural society to one of wage labor.
In his treatise The Law of Libel, published in 1812, Francis Holt wrote:
‘Every man has a right to the fruits of his industry, and by a
fair reputation
and character in his particular business, to the means of making his
industry fruitful.
At common law therefore an action lies for words which slander a man in
his
trade, or defame him in an honest calling.”
That is the origin of the common law workplace defamation. One thing that
is clear from the literature, as quoted above, is that the law was
specifically developed in response to industrial relations as a result of
industrial revolution, to protect workers in their trade and professions
from defamations that might have injurious effects on their means of
livelihood. At this period, there were no specialised courts specifically
created to cater for industrial relations cases in Britain and the
USA
. It is certain from the origins of the extension of defamation to trade
and industry that; had such specialised superior court like the
NIC
existed with full jurisdiction and powers, it would have had the exclusive
civil jurisdiction because, it would have been illogical and absurd to
develop a law in response to industrial relations and not grant the
industrial court the exclusive civil jurisdiction.
Now that we have the NIC in Nigeria, as a specialised superior
court of first instance, created specifically for workplace and industrial
relations disputes and, with all the powers of a High Court and
much more, could it be logically argued that the High Court, a
general jurisdiction court, would continue to exercise jurisdiction over
workplace defamation that was specifically created in response to the
workplace and industrial relations? The answer is no: for much more reasons
than the history of the origins of workplace defamation, the NIC
is granted exclusive fitting jurisdiction by S. 254C of the
Constitution
. With regard to this controversy, the Nigerian case is more perplexing
because; the Constitution specifically says the NIC has
exclusive civil jurisdiction over matters that arose from the workplace or
from industrial relations and yet, there is still arguments on whether it
has jurisdiction over workplace defamation!
First, the Constitution, as I have shown earlier on, sufficiently
infuses the NIC with non obstante jurisdiction in this area of the
law and secondly, that is the way the foreign jurisdictions with similar
full-fledged industrial courts like the NIC, have treated the issue
of workplace defamation: their labour/industrial courts have exclusive
jurisdictions over it. Thirdly, the origins of workplace defamation showed
irrefutably that the arguments that defamation is a standalone concept and
for that reason, could not be litigated as ancillary to employment relation
lacks foundation. From the origins of the concept of workplace defamation
under common law, it had its umbilical cord tied to workplace relations,
having arisen in connection with trade, profession and employment relations
necessitated by the industrial revolution. It was not developed in the
skies unconnected with anything but clearly developed in connection with
industrial relations; and it has remained so till date. It is from this
initial watershed under common law innovation that further developments led
to the now full-fledged modern workplace defamation with more fine-tuned
innovations to take care of the special nature of workplace defamation, yet
under common law. I quote the learned authors John Bruce Lewis
et al
once again. Tracing the trajectory of development of the modern workplace
defamation, the learned authors said:
“Many of the weaknesses in the application of defamation suits between
employers and employees are the result of the historical development of
American and English defamation law, in which the employment relationship
played no part.
There were few defamation actions arising out of the employment
relationship until the nineteenth century
. Defamation suits between employees and employers require three
interrelated conditions: the legal recognition of right of workers to sue
their employers; the legal recognition of an employee’s reputation as
important enough to merit judicial protection; and an employment
relationship and socio-economic environment creating the possibility of
labor mobility. It was only after the employment environment met these
three conditions in the middle of the eighteen century that courts in
England began to entertain defamation cases arising from out of the
workplace[35].
An employer is generally not liable for the republication of a defamatory
statement made only to an employee because the employee is held responsible
for any harm that results from his own statements.
Some courts, however, have held that the employer is liable if there is
reason to believe that the employee will, at some point,
be compelled to repeat the defamatory statement
[36].”
From the above, two things are made bare. Workplace defamation is entirely
dependent on employment relationships and cannot be divorced from them. It
was the response of common law defamation to employment relationships and
its development was entirely tied to the workplace and employment
relations. The second thing is that: the doctrines of qualified privilege
and compelled self-publication are evident; which is what the more
responsive climes have fully developed into the special class of
workplace defamation
. There are a lot of other innovations developed peculiarly for workplace
defamation but the most significant is the doctrine of compelled
self-publication. Having got to this juncture, I will now look at excerpts
from the key decisions from the two schools of thought in Nigeria before
rounding up on this aspect of the case. First, I take a look at some
authorities from the restrictive school of thought. In
Akpan v. Unical
[supra], which was the first from the Court of Appeal in the
restrictive school of thought:
“ The National Industrial Court is a Court of limited jurisdiction
in terms of subject matter, as clearly spelt out in Section 254C of the
1999 Constitution, as amended, its jurisdiction is limited to matters
closely related to labour and employment matters. The National Industrial
Court cannot entertain any matter outside its constitutionally prescribed
subject matter area.
A claim cannot be considered ancillary to the main claim when it is
completely removed from the subject matter of the main claim
…A careful examination of the provisions of Section 254C of the 1999
Constitution, as amended will not reveal that its powers extend to
entertaining a claim in tort, at all. A claim in tort cannot be considered
as being ancillary to a claim for wrongful dismissal when brought before a
Court which has its jurisdiction limited by statute…A claim for
defamation stands on its own. The learned trial Judge therefore rightly
declined jurisdiction over the Appellant’s claim for defamation.”
Note that, this Court of Appeal’s decision upheld the
NIC’s
declination of jurisdiction over workplace defamation. I will take one more
example in the restrictive school of thought which is the latest directly
on point. It is the case of Ecobank Nig. Ltd v. Idris
[supra]:
“It is clear from the list of items specified at Section 254C(1) of the
Constitution and indeed Section 254C(2) (3), over which the NIC had
jurisdiction to entertain,
cases or matters which border on defamation of character is not one of
those items
and it should not be so construed to confer jurisdiction on the National
Industrial Court (NIC) merely because those defamatory remarks were made in
the course of the Respondents [sic] employment with the 1 st
Appellant and thus, the defamatory remarks and claims for damages thereto
should not be entertained by the NIC…hence the National Industrial Court
cannot assume jurisdiction under Section 254C(1)(a) over cases or matters
founded on a claim for damages for defamation of character…”
It would be noticed that the first in the series of authorities in the
restrictive school of thought, which is the anchor of all the subsequent
authorities, and in the latest in line, their reasoning are the same. The
second is an excerpt from the latest that is directly on point from the
restrictive school of thought on the jurisdiction of NIC over
workplace defamation. It would be found that the anchors of the two
authorities are exactly the same. The indictment on the NIC’s
jurisdiction is that, since the Constitution did not specifically
use the jargon ‘ defamation’ or ‘ tort’ in S. 254C-(1)(a),
the NIC had not jurisdiction over defamation, even though, it
arises from work-context and as a result of employment relations, such
defamation would yet be totally independent of the workplace and employment
relations and, as such, could not still be said to be ancillary to
employment relations and therefore, could not be entertained by the
NIC
because; the NIC’s jurisdiction is limited. Let me observe, with
the greatest respect, in the meantime that there was nowhere in S. 254C
that the Constitution expressly stated that the NIC’s
jurisdiction was limited as deduced in the two authorities. Let us now look
at excerpts from two of the leading Court of Appeal’s decisions
from the opposing school: the expansive school of thought. I cite first
MHWUN v. Ehigiegba [supra], which is the very first on this
line:
“It is important to note that Section 254C(1)(a) of the Nigerian
Constitution, 1999 confers an expansive jurisdiction on
the Court to adjudicate on any matter arising from the workplace…The idea
behind this provision is to remove any limitations or obstacles on the
categories of claims or reliefs which the Court can entertain arising from
workplace or employment issues. However, despite the seeming clarity in the
extent of the jurisdiction…there are still a lot of uncertainties in respect
of matters which are termed ancillary or connected to the subject matter
over which the Court has exclusive jurisdiction. As a result of this
position, even the Court…in a number of instances refused
to entertain claims or reliefs outside of strict labour and employment even
where such claims are closely linked with labour matters…It is now settled
principle of interpretation of statutes that
the law makers does not use any words in vain
. The argument here is the repetitive use of the words; ‘connected with’,
“related to”, “pertaining to”, “arising from”, “incidental thereto”, or
“connected with” used in Section 254C(1)(a)…were not used in vain as the
law makers must have meant their use to emphasize and reiterate
the wide jurisdiction…over all issues arising from employment and
labour disputes regardless of the nature of the claims or reliefs in
the suit…
The tort of defamation…is an actionable wrong which depends on a set of
factual situations which gives [sic] rise to the claim of the
claimant…Where the factual situation on which the claim is anchored is one
that is based on an employment dispute or matters arising from the
workplace, then such claims falls squarely within the ambit of Section
254C(1)(a) of the Constitution, regardless of reliefs claimed…If this is
not a classic case of an alleged defamatory claim arising from a purely
labour and employment relationship arising from the workplace and relating
to or connected with any labour, employment dispute as envisaged by Section
254C(1)(a), this Court therefore wonders what else will be.”
I take the second example from the expansive school of thought from the
Court of Appeal’s case of
Okoro v. Ecobank Nigeria Ltd
[supra], which is the latest directly on point:
“Put in another way, the said claim of defamation could not be determined
without a determination of whether the contract of employment between the
parties was lawfully terminated or not…
The argument of the learned counsel for the Respondent that the Appellant
has severed his employment with the Respondent or that the Appellant’s
claim is for defamation simpliciter cannot be countenanced. By the said
Appellant’s claim, the issue of defamation is dependent on the claim of the
lawfulness or otherwise of the termination of the contract of employment
between the Appellant and the Respondent.
In the circumstance, the learned trial judge was right to have held that
the proper court to try the Appellant’s claims is the National Industrial
Court of Nigeria.”
In the first place, it is necessary to observe that NIC’s
jurisdiction is even wider than envisaged in the second authority from the
expansive school of thought and, for workplace defamation, the
employee-victim of the alleged defamation might not even challenge his
discharge but only the defamation in the discharge letter, because s/he
might no longer be ready to work with the employer or might only be
interested in clearing his name. See for example, the now notorious
UK
case in which a former Nigerian Deputy Senate President and another Nigerian
were sentenced for human trafficking for organ harvesting, modern slavery
and related
offences[37].
The victim, even though poor, flatly rejected compensation. And the Court
respected his wish. This shows that it is the right of victims to choose the
cause of action to pursue and the reliefs to claim. Once they prove the
cause of action chosen, the court is not concerned with the cause of action
abandoned. And that does not take away the factual connection of the cause
of action pursued to the one abandoned. It is a matter of pleading and
evidence. Coming back to our position before the cognate digression,
workplace defamation might more negatively affect the future employability
of the victim-employee or has actually negatively affected him in the case
of compelled self-publication.
The mere fact that the victim-employee decided not to challenge the
discharge but only the workplace defamation does not remove the workplace
defamation from its employment relation’s fulcrum. Cases of defamation
relying on compelled self-publication are brought after discharge and not
to challenge the discharge but the injury of inability to get new jobs as a
result of the libel in the discharge letter. So, the first authority cited
from the expansive school: MHWUN v. Ehigiegba [supra]:
captures the breadth of the NIC’s civil jurisdiction over workplace
defamation better and, the nature of its expansive civil jurisdiction. So
also did Nwagbo v. NIA [supra]. Clearly, both
MHWUN v. Ehigiegba
and Okoro v. Ecobank as excerpted above, and from the
expansive school of thought, are directly on point.
In the first, claim in defamation was the main claim and it arose out of
the workplace and in the cause of industrial relations, while in the
second, the defamation arose from the workplace and in the cause of
dismissal. From the point of view of the latest in the series of
authorities that is directly on point, as I have found earlier in this
judgment, is Okoro v. Ecobank Nig. Ltd [supra] and it
therefore takes the trophy, while the opposing authorities that were later
than it were on tort of malicious prosecution and, not tort of workplace
defamation. They have different requirements on pleadings and proof. Going
by the standard principle of choosing between two conflicting
stare decisis
, the latter in time prevails. Okoro v. Ecobank Nig Ltd
[supra], from the expansive school of thought, is therefore the extant
latest authority that is directly on point and, consequently I am bound by
it. And I so hold.
However, I have found earlier on that, since all these authorities from
both schools of thought are on torts generally, and the authorities from
the restrictive school of thought seemed to make sweeping statements on the
lack of NIC’s jurisdiction on torts generally, it might be that
there is no discernable ratio decidendi common to the conflicting
decisions of both the NIC and the Court of Appeal on this
issue and therefore, going by Ngun’s case [supra], I am
bound to make a choice between the two sets of authorities on this issue. I
logically take side with the expansive school of thought. I have given the
detailed reasons for my choice earlier in this judgment. I only need to add
that, it is fitting to look more critically at the constitutional
provisions on the jurisdiction of the High Court itself, which the
Court of Appeal, within the confines of the restrictive school of
thought, with the utmost respect, has repeatedly held, has jurisdiction
over workplace torts, including workplace defamation, for the purposes of
comparative analysis with that of the NIC, since it is in the
centre of the whole controversies. S. 272(1) of the Constitution
provides for the High Court’s jurisdiction thus:
“Subject to the provisions of section 251 and other provisions of the
Constitution, the High Court of a State shall have jurisdiction to hear and
determine any civil proceedings in which the existence or extent of a legal
right, power, duty, liability, privilege, interest, obligation or claim is
in issue…”
The above are the provisions of S. 272(1) of the Constitution that
deal with the civil jurisdiction of the High Court, the remaining,
which I did not reproduce, deal with its criminal jurisdiction; which is
not our inquiry here. First, it must be cleared at the outset that the
jurisdiction of the High Court is no longer unlimited as it was
under the 1963 Constitution. Unfortunately, it appears the
restrictive school of thought seemed to feel it still is. Things have
changed: first, with the creation of the FHC and later, with the
creation of the NIC. The High Court is now a court of
residual civil jurisdiction while both the FHC and the
NIC
are courts of exclusive jurisdictions. I think the correct statement of the
law extant is that the NIC’s civil jurisdiction is enumerated and
general on all matters related to the enumeration howsoever styled or
called, while the High Court’s civil jurisdiction is limited to
the residues left by the FHC and the NIC. And the
implication is that, whatever the NIC’s civil jurisdiction
expressly or impliedly covers, the High Court’s civil jurisdiction
is automatically ousted. That is the meaning of residual.
But while the NIC’s civil jurisdiction is exclusive, its
exclusivity is of general and expansive nature on the subject matters
covered and, extends to all other subject matters that arise from workplace
or that are connected to them or incidental to them such that, these issues
and matters are included in the general coverage of its expansive civil
jurisdiction. It is irrelevant whether they are independent subjects on
their own or not, once they are matters arising from workplace, the
NIC
has exclusive civil jurisdiction over them. And when such matters are said
to be ancillary, it is the Constitution that effected a change in
that law to make them ancillary; and our previous knowledge of the law has
nothing to do with the matter. They are simply ancillary from the wording of
S. 254C of the Constitution.
Now, the main anchor of the arguments of the restrictive school of thought
is that, the Constitution did not specifically mention defamation
or torts in relation to the NIC’s civil jurisdiction. Combing
through the High Court’s civil jurisdiction too, as conferred by S.
272(1) of the Constitution, and as reproduced above, I could not
find where it too, mentioned torts or defamation. And S. 272(1) neither
uses the all-inclusive expansive phrases: “relating to”, “connected with”,
“matters arising from workplace”, “incidental thereto”, “connected
therewith” nor does it provide the High Court with a civil
jurisdiction to eradicate unfair labour practices or enjoined it to apply
international best practices in the adjudication of labour disputes. And
these are the clauses that give NIC expansive civil jurisdiction on
all things connected with labour or work-context. Noteworthy is the fact
that, S. 272(1) of the Constitution that ushered in the civil
jurisdiction of the High Court self-subject itself to the other
provisions of the Constitution whereas, NIC’s civil
jurisdiction subjects all other provisions of the Constitution to
itself to have unobtrusive expansive coverage.
It is not therefore feasible to restrictively construe the jurisdictional
provisions of S. 254C of the Constitution, which grants the
NIC’s
expansive civil jurisdiction, subject to S. 272(1) of the
Constitution
, which grants the High Court’s limited residual civil
jurisdiction. With the clear provisions of the S. 254C-(1)(a) that, all
“matters arising from workplace” and matters relating to or connected with
labour, employment and industrial relations and matters incidental thereto
or connected therewith: how could the High Court have jurisdiction
over workplace torts in general and workplace defamation in particular,
which are not residues left for it? It looks illogical. The phrase “matters
arising from workplace” is very clear and unambiguous and does not lead to
ambiguity or absurdity. The High Court clearly lacks jurisdiction
over “matters arising from workplace” and “matters arising from workplace”
clearly covers workplace defamation. To hold otherwise would mean the
drafters of S. 254C of the Constitution used those phrases in vain.
The argument that the NIC’s civil jurisdiction is limited is
therefore not correct. It is better to say the jurisdiction of the
NIC
is enumerated and encompasses all unenumerated things arising from
workplace or connected with or ancillary to labour, union and employment
relations. The notion of the NIC’s limited jurisdiction is only
accurate to describe its jurisdiction under the TDA and
NICA
. Under the TDA, its jurisdiction was limited to only the cases
referred to it by the Minister of Labour and the
Industrial Arbitration Panel
, while under the NICA, its jurisdiction though expanded, was
still not directly incorporative of individual employment suits and thus,
limited in that regard. As far as labour relations law and things arising
from the workplace are concerned, the NIC’s civil jurisdiction is
unlimited, which is why the constitution drafters used those incorporative
and expansive words and phrases. If we follow the prescription of the
Court of Appeal
in Sahara Energy Resources Ltd v. Oyebola [supra] that new
statutes are to be construed with a clean-slate mind, it would have been
easy to buy into the thoughts of the expansive school of thought.
Having arrived at this juncture, I hold that the NIC has non
obstante civil jurisdiction over all workplace torts, including workplace
defamation, whether it stands alone or not, so far it arose out of the
workplace or, in conjunction with other claims or not, all connected with
labour or arising from the workplace or ancillary to these matters. That is
what the Court of Appeal aptly pointed out in
Nwagbo’s
case [supra] when it stated the law thus:
“It is clear from the provisions of Section 254C of the Constitution that
the jurisdiction of the National Industrial Court
is not limited
to disputes between employer and employee only; it extends to any dispute
related to labour and industrial relations.”
Be that as it may, I wish to observe that some of the arguments raised in
the objection were not wary of the need to avoid multiplicity of suits as
enjoined by S. 254C of the Constitution and S. 14 of the
NICA
. The main object of the NIC’s expansive civil jurisdiction is the
need to obviate unwittingly imposing multiplicity of actions on the parties
in industrial relations disputes, especially the workers, who are treated
as hapless underdogs in labour law. The Court of Appeal equally
made it abundantly clear in Omang v. Nsa [supra] that it is
necessary to take into account the need to avoid multiplicity of actions in
construing the NIC’s jurisdiction – P. 86, E-H.
It is because the labour law regards workers as hapless underdogs that in
some jurisdictions, they have what is called ‘small claims’ for
which loose procedures are designed in their labour courts while others
even totally barred lawyers from appearing in small employment
claims[38].
Obviously, from the phraseology of S. 254C of the Constitution,
workplace defamation is at worst, ancillary to industrial relations and at
best, arises from the workplace and from industrial relations. Ancillary in
this sense is not related to the distinctive nature or the supposed
independent nature of the subject matter [workplace defamation] in issue
but as nominated by the Constitution in relation to labour
matters. And when the Constitution says something is ancillary to
another, that to which the Constitution makes it ancillary, is the
main subject by constitutional force and, we cannot wriggle out by saying
because, in ordinary parlance, the thing made ancillary by the
Constitution
, is an independent subject on its own in law, we will not obey the
Constitution
. The factual relations created by the Constitution must prevail.
The Constitution made any other subjects connected with industrial
relations or arising from work-context ancillary, however independent they
normally are, that is the law: we cannot wriggle out of that.
And being ancillary, the court with jurisdiction over the main subject to
which it is ancillary has jurisdiction over it –
Gafar v. Govt of Kwara State & Ors (2007) LPELR-8073 (SC)
– and it does not mean that the main subject must be claimed as a cause of
action in the suit. Where only the ancillary is claimed, the main claim
could always be deduced from the pleadings showing the main cause of action
and the question would be: had the claimant filed action on the main cause
of action, would this Court have had jurisdiction? If it yields yes: the
NIC is good to go. It is a matter of choice to the claimant to
nominate his cause of action and matter of evidence and pleadings to prove
it. The defendant and the court cannot dictate to the claimant, which of
the multiple causes of action s/he must pursue.
The duty of the court is to adjudicate the cause of action, which is within
its jurisdiction according to law and, the defendant’s duty is to defend
the cause of action filed against it and not to object that the court lacks
jurisdiction because, multiple causes of action were not filed. So,
defamation, however independent it might be thought to be, as a subject in
law could after all, be ancillary to labour relations under the tenor of S.
254C of the Constitution. In actual fact, how independent really
are workplace defamations and other species of tort generally? They are
just topics in the subject: Law of Tort, and the whole
Law of Tort
itself could be ancillary to labour relations under the canopy of S. 254C
of the Constitution, not to talk of just a topic in the whole.
It is not generally realised that part of the core advantages aimed at in
the all-inclusive expansive tenor of S. 254C of the Constitution
is the need to avoid multiplicity of suits on issues that could arise from
the same subject matter with common threads running through them. S.14 of
the NICA is cognate. For example, the same evidence that would be
presented to prove workplace defamation in the course of dismissal would be
exactly the evidence needed to prove wrongful dismissal. This is what the
Court of Appeal illustrated in
Okoro v. Ecobank Nigeria Ltd
[supra]. Whether or not the claimant now sued for dismissal with the
defamation is not material. What is material is whether an examination of
the facts showed this connection. Why would defamation go to
High Court
and wrongful dismissal stay in the NIC? That would amount to a
classic example of unwittingly promoting multiplicity of actions on causes
that could be conveniently and easily tried by one of the two courts. And
since the High Court could not try wrongful dismissal, it is the
NIC that must have jurisdiction on both, and once both are or
either of the causes of action is provable by their connection with labour
relations.
All the examples of the adoptions of such grotesque methods of multiplicity
of actions on labour matters I read arose in situations where the labour
courts concerned were inferior tribunals
[39]
and none, where the industrial courts were superior courts with the
requisite jurisdiction and powers of High Court[40],
even if their jurisdictions were couched in general terms. To avoid any
problem, the Nigerian Constitution, like the
Kenyan Constitution
, in its wisdom, nominated the NIC with exclusive civil
jurisdiction over all matters connected with labour relations and all
“matters arising from workplace”.
Reflecting the contemporary thinking on labour court’s jurisdiction over
workplace torts, the New Zealand Supreme Court [NZSC]
even decided in FVM v. TZB
[41]
that the Employment Relations Authority [ERA],
an inferior
tribunal[42],
had exclusive civil jurisdiction over workplace defamation and workplace
torts generally, in so far the claims were framed around “employment
relations problems” or “work context” over which S. 161(1) of
the Employment Relations Act grants the ERA exclusive
civil jurisdiction, notwithstanding that S. 161(1)(r) of the Act excludes
its jurisdiction over torts. S. 161(1)(r) was deemed as producing an
ambiguity resulting in absurdity against the legislative tenor marshaled
out in S. 161(1). How much more, with the NIC, that has its
jurisdiction firmly entrenched non obstante in the grundnorm, with clear
mandate over: “matters arising from workplace”, employment, industrial and
labour relations?
The NZSC took into consideration the problems of multiplicity of
actions on the hapless employees/workers. In relation to similar arguments
about independence of torts, the NZSC held that the phrase
“employment relations problems” was used to capture factual situations or
ramifications of problems arising from employment relations irrespective of
legal concepts or compartmentalization like torts, contracts, etc. and
captures torts, once the factual situations connect the problems to
employment relations or they happened within work-context. In a nutshell,
the phraseology breaks barriers. This solves all the arguments about the
impossibility of torts being ancillary or related to or connected with or
arising from employment and labour relations because, they are independent,
which have been the fort of the restrictive school of thought in Nigeria.
Therefore, the clause “matters arising from workplace” means what it means
and captures any matter whatsoever that arises from the work-context.
It is not generally realised that easy access to labour justice is one of
the core insignia of the decent work agenda of the ILO, which
informed the intendment of Nigeria, at the ILO’s incitement, to
fuse all causes of actions related to labour and employment relations in
the NIC, to afford easy access to labour justice. Multiplicity of
actions, especially when foisted unwittingly by courts as a result
misinterpretation of statutes on the hapless workers, is a classical
example of denial of access to justice, either by reason of excessive costs
that would be incurred litigating the multiple causes of actions that could
be conveniently tried by one court or, by reason of exasperation from
dissipation of energies in pursuing causes of actions that could have been
conveniently tried together in one court – S. 17(2)(c)&(e) of the
Constitution
, of which (c) says government actions shall be humane while (e)’s
guarantee of easy access to courts is impacted.
Could a situation where litigants are tossed about by difficulties in
determining the appropriate court to file their cases or where hapless
workers have to split their common actions into several for litigation in
separate courts where one court could easily try all, be said to be humane
or guarantee easy access to justice? The answer is no. SS.
254C-(1)(f)-(h)&(2) of the Constitution together with SS.
13-19, especially S. 14 of the NICA, make the provisions of S.
17(2)(c)&(e) of the Constitution justiciable on avoidance of
multiplicity of actions and shows that the NIC, which has all the
powers of a High Court and much more than that, has exclusive
civil jurisdiction over workplace defamation. What determines jurisdiction
in such instances is that where there are two interconnected or
interrelated causes of action and the NIC clearly has jurisdiction
on one, the other is automatically ancillary to the one on which the
NIC
has absolute jurisdiction and must be heard in the NIC because,
that is the only way to avoid multiplicity of actions on such interrelated
causes of actions. A contrary interpretation leads to the absurdity of
unwittingly encouraging multiplicity of actions.
In this connection, it is necessary to state at this point that in the
Kenyan case discussed earlier on this issue, the
Kenyan Court of Appeal
also took into serious consideration the need to avoid multiplicity of
actions that could be conveniently tried by the
Kenyan Industrial Court
in arriving at the conclusion that the Kenyan Industrial Court
had exclusive jurisdiction over workplace defamation. By dint of the
NIC’s
mandate under S. 254C-(1)(f)-(h)&(2) of the Constitution to
apply international best practices in the adjudication of labour disputes,
the NIC and nay, the Court of Appeal, is bound to apply
these international best practices to prevent multiplicity of actions in
all matters connected with industrial relations in Nigeria. The
NIC
, like the Kenyan Industrial Court, has all the powers of a
High Court
and much more by virtues of SS. 6(1), (3), (6)(a); 254D of the
Constitution
, and 12-19 of the NICA. S. 14 of the NICA especially
enjoined the NIC to avoid multiplicity of actions that could be
conveniently tried together at the NIC.
Since there are no inhibiting factors as regards the reliefs that the
NIC
could grant and S. 254C of the Constitution clearly grants the
NIC exclusive civil jurisdiction on workplace torts, I hereby declare
the NIC is the exclusive court over the cause of action in this
suit. In fact, the NIC, by virtues of S. 254C-(1)(f)-(h)&(2)
of the Constitution and S. 12-19 of the NICA, has much
more powers to grant reliefs beyond what is grantable at the
High Court
. The phrase “matters arising from workplace” appeared after the matters
arising from employment and labour relations or matters connected with them
and so could not be interpreted to mean exactly the same thing or to mean
what it does not ordinarily suggests. It must have additional meaning
different from those other clauses. It suggests ordinarily that matters
that arise from the workplace, whether independent or not, the NIC
has exclusive civil jurisdiction over them. There is no ambiguity or
absurdity in that.
Another disconcerting aspect of this conundrum is that some workplace cases
might end up never being heard because of the uncertainties on which court
has jurisdiction on them. Such an unfortunate example is reflected in the
decision of the NIC in
Dr. Sinyeofori A. Brown v. University of Uyo &
Ors[43]
. The matter was originally filed at the FHC, Uyo Division and
later transferred to the NIC Uyo Division, and the same point that
necessitated the transfer from the FHC to the NIC was
raised again as objection at the NIC; and the NIC acceded
to the objection that it lacked jurisdiction and struck out the suit, even
though, by virtue of S. 24(5)&(6) of the NICA, it ought to have
stated a case to the Court of Appeal to decide which Court has
jurisdiction. Maybe, the learned trial judge was of the opinion that a case
over which a court lacks jurisdiction cannot be transferred to the court
that has jurisdiction, as some authorities have stated that the power of
inter-courts transfer of cases is unconstitutional, and as a result, it was
not necessary to state a case for the Court of Appeal, is a mute
point.
But the central concern is that, the matter might continue
ad infinitum
on the merry-go-round without being heard, as the High Court, where
it is most likely to be filed anew, having suffered setbacks in the two
courts already, might again decline jurisdiction and transfer it back to
the NIC the second time, to continue its never-ending macabre
dance! Going by Okoro v. Ecobank, which is the latest
Court of Appeal’s
authority directly on workplace defamation, there is the real possibility
because, the case emanated from the High Court and, it flatly
declined jurisdiction, which declination, the Court of Appeal
upheld. Be that as it may, I will like to cite the erudite authors: Lawyers
for Justice, in their incisive article: “How to Prove Workplace
Defamation” [supra] wherein it was observed:
“Regardless of your dedication and commitment to your job, workplace
defamation can completely ruin your reputation. It can even lead to a loss
of promotion, bonuses, or your position and prevent you from getting
hired.”
How could a defamation that could cause these direct employment misfortunes
to the employee-victims, be said not to be closely connected with
employment relations? Why would the High Court or any other court
have jurisdiction over it in the face of an employment court with the full
powers of a High Court? Would the High Court, being a
general jurisdiction court, be in a good position as a specialised labour
court to appreciate the nuances needed to appreciate the degree of damages
such workplace defamation occasioned in employment relations? I think all
these questions must be answered against the High Court and in
favour of the NIC by virtue of SS. 254B-(3)&(4) &
2454C-(1)-(h)&(2) of the Constitution. Consequently, in
whatever way one looks at it, the objection against the substantive
jurisdiction of the NIC that it lacked jurisdiction over workplace
defamation is totally lacking in merits. It is accordingly dismissed. I
shall now proceed to the second ground of objection against the
NIC’s
jurisdiction: the ground that the proper and necessary defendant is not
before this Court.
Part A: Second Segment: Whether the Proper Defendant is Before The
Court
The objection under the second segment of Part A is that, the proper
defendant is not before this Court because the extant defendant acted at
all times relevant to this action as agent of the PRODA and
therefore, not liable and not suable on account of all that he did. The
claimant-respondent’s learned counsel disputed this, arguing that the extant
defendant was on a frolic of his own and therefore, not covered by the
doctrine of respondeat superior. I need not waste time on this. I
cite in extenso my decision in
Chukwuma Ogbonnaya v. Alex Ekwueme Federal University &
Ors[44]
as my answer to the objection:
“
Ifeanyichukwu (Osondu) Company Ltd v. Soleh Boneh (Nigeria) Ltd &
Anor (2000) LPELR-1432 (SC) 12-14, F; 24-26, A-E…
The learned counsel to the defendants has argued that, the purpose of
joining the 2 nd and 3 rd defendants is to embarrass
them and that, they ought not to have been joined because, they are agents
of the 1 st defendant and did all that they did in the course of
their official duties. Let me state that, the law is that,
joint tortfeasors could be sued together or separately
. In this case, allegation of giving a false reason for termination of the
claimant’s employment is in issue. If proved, it is plainly tort. For, to
defame a person, is tort. So, the claimant was at liberty to sue either the
1 st defendant alone or together with the 2 nd and 3
rd defendants jointly –
Ifeanyi Chukwu (Osondu) Company Limited v. Soleh Boneh (Nigeria)
Limited (2000) LPELR-1432 (SC) 16, B-F and Aniocha North Local
Government Council & Ors v. Eze (2016) LPELR-42016 (CA) 19-22, B-C.
See also Cotecna International Limited v. Churchgate Nigeria Limited
& Anor (2010) LPELR-897 (SC) 18-19, B
, where the Supreme Court clarified the issue thus:
‘It is not in all situations that an agent will not be liable for the acts
of a principal. An agent who has exceeded the limit or bounds of its
authority as alleged in this case, such agent will be liable. See Order IV
Rule 4 of the Federal High Court (Civil Procedure) Rules 1976 which applies
to this case and Order 9 Rules 5 and 8 of the new Federal High Court (Civil
Procedure) Rules, 2009 which has liberalized the joinder of parties, Rules
5 and 8 of Order 9 provides: ‘Any person may be joined as defendant against
whom the right to any relief is alleged to exist whether jointly,
severally, or in the alternative. Judgment may be given against one or more
of the defendants as may be found to be liable according to their
respective liabilities, without any amendment.’ ‘8. Where a plaintiff is in
doubt as to the person from whom he is entitled to redress, he may, in such
manner as hereinafter mentioned or as may be prescribed by any special order
join two or more defendants with the intent that the questions as to which,
if any of the defendants is liable and to what extent may be determined as
between all parties.’
The above provisions of the then
Federal High Court (Civil Procedure) Rules
, which were construed by the Supreme Court in the above case is
encapsulated in Order 13, Rules 4, 6(1), 7 & 8 of the
National Industrial Court (Civil Procedure) Rules 2017
[NICN Rules]. These rules foreshadowed the blurred boundaries between
contract and torts and recognised the fact that tort could always arise
from contract. It also shows that, even under contract, an agent could be
sued personally and together with his principal, if the allegation is that,
the agent acted in excess of his powers, and that is, exactly what
happened.
In such instances, the wise thing is to sue both jointly and severally, and
let the principal wriggle out, if he could, by proving that, the agent went
on a frolic by way of defence and not in limine. It does not
therefore follow that, because; a cause of action arose from an initial
contract, action could not be brought under tort, where the complaint is
that, the agent went completely outside the contract to injure the
complainant –
Nedlloyd Lijnen B.V. Rotterdam v. Ofelly Agro-Farms & Equipment
Company Ltd & Anor (2013) LPELR-20760 (CA) 27-28, C-B
. In such instance, it would be said that, the alleged agent/servant
tortfeasors went on a frolic. Though, I am aware of the earlier Supreme
Court decision to the contrary in
G.B. Olivant Nigeria Ltd v. Agbabiaka (1972) LPELR-1295 (SC) 9, C-F
but the Supreme Court appeared to have reversed itself in
Abulsomwan v. Mercantile Bank Ltd (1987) LPELR-61 (SC) 22-23, F-E;
24-25, F-A
.
I think G.B. Olivant’s case must be taken on its peculiar
facts. Where the issue is simply wrongful termination of employment based
on failure to comply with the terms of the contract, the action would only
lie in contract, but where the issue of given a reason for the termination,
which turned out to be false, is the cause of action, as in this case, this
is purely out of the confines of the contract and as such, an action would
lie in tort to void the libelous letter of termination, not because of
breach of any of the terms of the contract, but because, the law protects
the right of a person to good name and makes it illegal to tarnish the good
name of a person so that, no contract could contract out of this provision
of the law. In such instances, where other causes of action are involved
too, the claimant could rightly bring all the causes of action together and
join all the defendants, to avoid multiplicity of suits, since the causes
of action relate to the same persons and arose out of the same or series of
transactions all connected – see Order 13, Rules 4, 6(1), 7 & 8 of the
NICN Rules. A case is an authority for the facts on which it was
decided but not for all unrelated facts simply because, the latter case
comes out of the same nomenclature with the previous – see
Aizeboje v. Economic and Financial Crimes Commission (2017) LPELR-42894
(CA) 20-21, D-B and Ugwuanyi v. NICON Insurance Plc (2013) LPELR-20092
(SC) 63, A-D
.
This case, where allegations of giving false reasons for the termination
and acting outside the authorities of the 2 nd and 3
rd
defendants are in issue, these aspects of the case are external to the
terms of the contract and not fixed by the parties, but by law. So, really,
it comes within the range of the distinguishing factors listed in
G.B. Olivant’s case
, as bringing a case within the realm of torts, notwithstanding that the
fulcrum is contract. A careful perusal will show irrefutably that,
G.B. Olivant’s case did not actually foreclose a tort arising from
initial contract. So, the facts of the instant case, could ground an action
in torts notwithstanding the fulcrum is contract, and I so hold. And in
that event, since the law is that, joint tortfeasors could be sued together
notwithstanding that the principal is known, the joinder of the 2
nd
and 3 rd defendants in this case is lawful and they remain
proper and necessary parties in this suit; and I so hold. The objection is
therefore liable to be dismissed and; is accordingly dismissed as lacking
in merit.” – [P. 12-14.]
I cite another of my previous decisions to compete my answer:
Arinze Okeke v. Arab Contractors OAO Ltd &
Anor[45]:
“In an action in tort, both the actual tortfeasor and the master [the 1
st defendant company in this instance] are severally and jointly
liable and could be sued as such and this does not detract from their joint
and several liabilities – see
Ifeanyi Chukwu (Osondu) Company Limited v. Soleh Boneh (Nigeria)
Limited (2000) LPELR-1432 (SC) 25-26, A-C
:
‘Being joint tort-feasors, therefore, a plaintiff is at liberty to choose
his victim; he may decide to sue either of the master and servant
separately or both of them jointly… Where he sues one of them separately
and succeeds, this is not a bar to an action against the other who would if
sued, have been liable as joint tort-feasor in respect of the same damage.
The question that may arise is as to contribution between the joint
tort-feasors. And this question is taken care of by…Sections 14 & 15 of
the Torts Law…of Bendel State of Nigeria, 1976 which provide…c. any
tort-feasor liable in respect of that damage may recover contribution from
any other tort-feasor who is, or would if sued have been, liable in respect
of the same damage, whether as joint tort-feasor or otherwise, so,
howsoever, that no person shall be entitled to recover contribution under
this section from any person entitled to be indemnified by him in respect
of the liability of which the contribution is sought.” –
[P. 32]
The surmise is that under torts, the principal and agent are suable either
jointly or severally –
Ifeanyichukwu (Osondu) Company Ltd v. Soleh Boneh (Nigeria) Ltd &
Anor (2000) LPELR-1432 (SC) 12-14 & 24-26, A-E
[supra]. That is my answer to the non-joinder of PRODA. The
argument that employees could not bring actions against themselves has no
foundation in S. 254C-(1)(a) of the Constitution. The phrase
“matters arising from workplace” did not limit the parties to only
employers and employees. Employees can definitely file workplace defamation
actions against themselves without joining their employers and these would
not remove such actions from the toga of their relations with labour nor
take away the fact that they arose from
workplaces[46].
And they would still be cognizable before the NIC once the causes
of actions arose in the workplaces or in the courses of works or are
related to industrial relations. This must be logically so because, the
coworker-tortfeasors might be on frolics and cannot therefore claim
respondeat superior
besides the fact that torts could always be prosecuted jointly or severally
against multiple tortfeasors.
The claimant’s case in his pleadings is that the extant defendant was on a
frolic; and undoubtedly, the cause of action is purely situated in
workplace tort. The extant defendant could be sued personally alone or
jointly with PRODA. And the claimant herein has decided in his
absolute right to sue the extant defendant alone without joining
PRODA
: so be it. Whether or not the suit thereby became a personal action does
not remove it from the canopy of suits emanating from industrial relations
or from matters arising from workplace and; being so, it is legally
cognizable before this Court. Tort is mainly a personal action. The
NIC’s
jurisdiction is wider than just suits between employers and employees. And
that was exactly what the Court of Appeal iterated in
Omang v. Nsa
[supra]:
“The jurisdiction of the National Industrial Court extends to all matters
related to, incidental to or connected with any labour or employment
dispute. In effect, its exclusive jurisdiction extends to matters having a
nexus, inextricably linked or reasonably connected to subject matters over
which jurisdiction is conferred in section 254C of the Constitution…
In order word, the jurisdiction of the National Industrial Court
relates to the ramifications of labour and labour relations in its
length and breadth and
does not make any distinctions between employer-employer relations,
employer-employee relations and employee-employee relations
as far as it concerns labour.
For example, to show the extent of the jurisdiction of the court, the word
‘labour’ appears separately on the same line with employment.” – [P.
85-86, F-A]
It could be seen that, NIC’s jurisdiction is truly not limited to
employer-employee suits but encompasses suits filed by coworkers against
themselves. The Court of Appeal in Omang’s case
went further to elaborate that each of the concepts listed in S. 254C has
its peculiar meanings and that, the word labour encompasses all the
ramifications of the concepts under the law of industrial relations, which
transcends mere employer-employee relations – P. 86, B-E.
In any case, almost all employment disputes are personal, since employment
rights are mainly personal, particularly workplace tort. Hence, the learned
objector’s counsel’s contrary arguments are misplaced and arose from a
misapprehension of the law. Without involving trade union, an employee
could sue a coworker without the joinder of the employer in the
NIC
, more particularly so, that the cause of action lies in tort, wherein an
agent could lawfully be sued without joining his principal. The defendant
was therefore properly sued personally and alone. Following the all
embracing labour ramifications and the ILO instruments, the
NIC
in
Alpahcyn Nigeria Ltd v. Registered Trustees of Prince and Princess
Estate Residents Association & Anor
[47]
assumed jurisdiction on what ordinarily looks like independent contractor
relationship:
“Outsourcing is what the ILO calls disguised or objectively ambiguous
employment relationship. And this Court, given the broad definition of the
phrase, ‘any labour’, and its power and jurisdiction over labour
conventions, treaties, etc ratified by Nigeria, international labour
standards and the jurisprudence that follow them, has jurisdiction over
outsourcing of work.”
The above decision is directly pursuant to the obligations of the
NIC
under S. 254C-(1)(f)-(h)&(2) of the Constitution to eradicate
unfair labour practices by dint of the application of international best
practices. To further understand the nature of the expansive exclusive
jurisdiction of the NIC and how the Constitution achieved
this, we need to take a look at the combined effects of S.
254C-(1)(a)&(k) of the Constitution. S. 254C-(1)(a), which we
have quoted numerously and which the courts have extensively interpreted,
amongst others, provides for disputes arising from “conditions of
service[48]”. The expansive implication of
S. 254C-(1)(k) has not been fully examined in connection to our present
enquiry. For the sake of clarity S. 254C-(1)(k) of the
Constitution
provides that the NIC has exclusive civil jurisdiction on causes:
“Relating to or connected with disputes arising from payment or non-payment
of salaries, wages, pensions, gratuities, allowances,
benefits
,
and any other entitlement of any employee, worker, political or public
servant
in any part of the Federation and matters incidental thereto.”
The term “conditions of service” means “the terms on which an employee is
employed and expressly apply to all
employees…[49]”
When this is combined with the words “benefits, and any other entitlements
of any employee, worker, political or public office holder, judicial
officer, or any civil or public servant…” unambiguously yields an expansive
jurisdiction for the NIC to adjudicate on whatsoever benefits and
entitlements that are contained in contracts of employment. The terms
benefits and entitlements in their legal acceptations embrace any type of
rights conferred by contracts of employment or statutes on the listed
persons, be they physical or incorporeal, monetary or in kind. Relying on
these provisions the NIC assumed jurisdiction in
Senior Staff Association of Universities, Teaching Hospitals, Research
Institutes and Associated Institutions, PRODA Branch & Ors v.
Project Development Institute [PRODA] &
Ors[50]
to determine questions related to landed property as conditions of service.
Hence, the NIC by the combined effects of the provisions of S.
254C-(1)(a)&(k) of the Constitution, has the exclusive
jurisdictions to determine matters relating to monetisation policy of the
FGN whereby landed properties were made part of the fringe
benefits [conditions of service] of workers and whereby these workers were
given the right of ‘first refusal’ on these landed properties. In
many modern employment contracts, housing mortgages are essential terms of
the contracts of employment. It would be difficult to take away
jurisdiction from the NIC in these circumstances by saying it does
not have jurisdiction over land matters. The jurisdiction of the
NIC
in these circumstances is derivative of the work-context, and it can
determine the questions of title, possessions, trespass, injunction etc.
when disputes arise regarding such landed [housing] benefits or
entitlements as part and parcel of the conditions and terms of the contract
of employment. These issues could also normally come under ‘employee
loans’ when the contracts turn awry due to abuses introduced by
unscrupulous employers and come under the canopy of the NIC’s
jurisdiction to eradicate unfair labour practices [S.
154C-(1)(f)-(h)&(2) of the Constitution] as has been
demonstrated earlier in Asana v. FBN Ltd [supra]. It is
this derivative jurisdiction or rather expansive jurisdiction of the
NIC
that the Supreme Court had in mind in
Cocacola v. Akinsanya
[supra] when it held that:
“By virtue of section 254C(1) of the…Constitution…the National Industrial
Court has jurisdiction to the exclusion of any other court in civil cases
and matters relating to or connected to any labour, employment, the
conditions of service of labour, employee, worker and matters incidental
thereto or connected therewith. Under the sub-section, the jurisdiction of
the…Court covers all employment related matters…”
Employment related matters in this context mean subjects or matters that
are not traditionally employment matters but which happened in the context
of employment relations. Otherwise, the term “employment related matters”
would not have been employed. The drafters would simply have said
employment matters. Even though, what came to the Supreme Court
was the question of the termination of appeals on the civil jurisdiction of
the NIC at the Court of Appeal, i.e. the finality of the
Court of Appeal’s decisions on civil appeals from the NIC
, the obiter is nonetheless significant, as it shows the expansive nature
of NIC’s civil jurisdiction on all matters connected with labour,
employment and industrial relations. It must be noted too that the
Supreme Court
did not specifically construe the phrase “matters arising from workplace”
and S. 254C-(1)(f)-(i), (k)&(2) of the Constitution, as part
of the clauses granting the NIC’s expansive jurisdiction. But
within the confines of the Supreme Court’s holding above, it is
clear that workplace defamation, arising from a dismissal letter, is
connected to employment relations and relates to it. No distinction was
made as to the nature of the subject matter.
The determinant factor is its connection to labour, employment and
industrial relations or whether it arises from these listed subjects. It is
not generally known that the NIC has jurisdiction over human
trafficking and child abuse and matters connected therewith or related
thereto pursuant to S. 254C-(1)(i) of the Constitution. And this is
because human trafficking and child abuse are often silently fueled by the
desire for labour exploitation. Maybe this and the other salient nature of
its jurisdiction I have pointed out have now clearly demonstrated the fact
that the NIC now has expansive jurisdiction contrary to the view
of the restrictive school of thought.
For reasons such as narrated above the NIC’s jurisdiction is
couched in such a way to allow it to grow along with the cosmopolitan
developments in labour, employment and industrial relations and social
security benefits provided as part of employment benefits and entitlements.
It is for this reason, and in line with the doctrine of constitution as a
living tree, that the NIC’s jurisdiction is made expansive to
accommodate any new innovations in labour law that are constantly being
developed by the ILO and other international labour law
instruments.
The argument that because, the claimant had resigned before bringing the
action, as such, it is not cognizable before this Court, is therefore
misplaced. First, the NIC’s jurisdiction under S. 254C is also
about the site of the occurrence of the cause of action as encapsulated in
the phrase “matters arising from workplace”. In any case, the law that
governs a cause of action is the law in place when the cause of action
arose –
Minister Federal Ministry of Education & Ors v. Ekpo & Ors
(2016) LPELR-42062 (CA) 6, B-D
. The claimant was in employment when the cause of action [the dismissal
letter] arose in the workplace and so, he has the vires to sue on a cause
of action arising from industrial relations and from the workplace when he
was still in office. That he is now no longer in office has no relevance to
the case. That is the nature of workplace defamation arising from dismissal
letter. It is retrospective and looks back to what happened in the past.
The objection therefore lacks merits and, it is accordingly dismissed. That
ends the two objections against the Court’s jurisdiction to entertain this
suit. The objections against the jurisdiction of this Court to adjudicate
this matter, both substantive and procedural, having been dismissed, I now
have the unencumbered vires to look into the merits of the substantive
case: that is Part B. And there I go.
Part B: Decision on the Merits of the Substantive Case
The learned defence counsel formulated a lone issue, which I am persuaded
to adopt in deciding this case, but I will shun it of its verbosity. I
reframed the issue thus: “Did the claimant prove the defamation
against the defendant?” The arguments of the defendant’s learned
counsel on the merits of the case centred around seven distinct areas of
the libel:
1. The alleged letter of dismissal is not defamatory, as it only
stated the truth that the claimant was dismissed for failing to appear at
the PRODA Board to defend the allegations of crimes and
absenteeism leveled against him.
2. The claimant did not prove publication.
3. The defendant has the defences of: justification, privilege and
fair comment in his favour, as complete answer to the alleged libel.
4. Assuming the libel is proved, the defendant is not liable because,
he did all that he did in his official capacity as the PRODA’s
agent and therefore, not personally liable.
5. Actual/expressed malice/malice in fact was not proved.
6. The claimant failed to plead the name, details of evidence of CW1
and how he got the evidence so, CW1 is a busybody and as such, his evidence
is inadmissible and also lacks weight.
7. The suit is premature because the claimant is still under
investigation for the same allegations and therefore, the alleged libel is
inchoate.
The claimant’s learned counsel attempted to rebuff these by arguing against
the above, as arranged seriatim hereunder:
1. The dismissal letter is defamatory because, it imputed the
claimant was a thief, embezzler and not fit to hold public office.
2. Publication was proved in that CW1 gave copious evidence of how the
defendant pasted the libelous dismissal letter on all open spaces in the
workplace, apart from the fact that; it was served on some officials in the
workplace and; the claimant as CW2 corroborated these, and these pieces of
evidence were not challenged at all.
3. All the defences cited were not applicable because, the claimant did
not commit the offences alleged and was not convicted of the criminal
allegations to warrant the defamatory publication in the dismissal letter;
the claimant was not invited to the PRODA Board meeting, the
PRODA Board, which was in any case, not in existence as the material
time, having been dissolved at the time, while the claimant’s union was on
strike at the material time too, and the claimant answered the query sent
him on WhatsApp, and denied the allegations, even though, he was not
legally bound to answer it. As a result of all these: falsehood and pure
illegality were proved against the defendant thus, negating all the
defences: justification, fair comment and privilege.
4. The defendant was not an agent of PRODA but was purely on a
frolic of his own, which frolicsome was proved by PRODA disowning
him, withdrawing the dismissal letter and, recalling the claimant.
5. Malice in fact was proved in that the defendant lacked authority to
do all that he did and because of the illegality, the defendant was actuated
by self-serving actual malice.
6. CW1’s evidence met all the prerequisites, more especially so that
CW1’s evidence on this count was unchallenged.
7. The case was not premature because, the claimant, who did nothing
wrong, had not been convicted on the criminal allegations when the
defendant defamed him, and the letter of recall strengthened the fact that
the defendant defamed the claimant.
These are the major gists of the arguments and counter-arguments that I am
to resolve. And as could be seen, they revolved around the major factors
that must be proved to sustain allegations of libel. Back to the lone
issue:
has the claimant proved defamation against the defendant?
I start by inquiring whether: the dismissal letter is actually defamatory
on its face? I answer yes. Why? At the tail of Para 1 of the dismissal
letter, this appeared:
“…it relied on your previously written response [sic]
to the queries issued to you for its
resolution and decision
.” The “it” beginning the quotation, referred to the PRODA Board,
which allegedly dismissed the claimant. Literal interpretation of the
clause, without any colouration, means the claimant was found guilty of the
crimes alleged, contrary to the arguments of the learned defence counsel
that the dismissal letter merely dismissed the claimant for failing to
appear before the PRODA Board to defend himself on the criminal
allegations and, for absenteeism but did not find him guilty of the
criminal allegations.
It is clear by the said last clause of para 1 of the dismissal letter that
the defendant admitted that the claimant defended himself by his replies to
the queries and that; these replies were considered and found not to be
exculpatory and, the claimant was convicted of the crimes and therefore
dismissed for the criminal and civil charges therein stated. Exhibit D3
corroborated Exhibit C1 on the fact that, the claimant defended himself
when it said, the claimant was invited to the PRODA Board meeting
of 4th&5 th May 2021 to “get your oral
submission on the reports of serious misconducts against you which you had
earlier defended in writing.” The claimant might as
well not be interested in oral defence as alleged, or might have refused to
appear to offer oral defence, but that he defended himself in writing is
not doubtful and, written defence is defence. Self-incriminating evidence
is the best evidence –
Jauro & Anor v. Dabmaraya (2016) LPELR-40328 (CA) 33, D-F
. And a document speaks for itself -
Uzamere v. Urhoghide & Ors. (2009) LPELR-5082 (CA) 19, D-G
andShinkafi & Anor v. Al-Hassan (2016) LPELR-45427 (CA) 17-18.
Exhibits C1 and D3 established the fact that the claimant defended himself
in writing. I therefore hold that the dismissal letter, having found the
claimant guilty of crimes without proof and without being a court of law,
was defamatory of the claimant by ordinary reasonable appreciation of the
contents.
Secondly, the defendant’s arguments that he merely sacked the claimant for
failure to appear before the PRODA Board to defend the
allegations of crimes and absenteeism are not correct. Were they true: why
did the defendant list all these criminal allegations out instead of just
saying tersely that:
for failing to appear before the PRODA Board to defend the allegations
duly served on you with the invitation letter, you are hereby
dismissed?
By that, nobody would know what the allegations were and the issue of
defamation would not have arisen. Since the claimant was allegedly
dismissed for purely technical reason of failure to honour the
PRODA
’s invitation to defend the criminal allegations, why list out the criminal
allegations, which the law presumed the defendant knew or ought to know,
was defamatory? The logical inference is that the defendant imputed that
the claimant admitted the crimes by this line of defence and suppressed the
fact, which the dismissal letter admitted itself, that the claimant
defended these allegations in his replies to the queries issued on the
allegations. And this is found to be untrue since the claimant had
responded to queries on the allegations by denying them and, the defendant
lacked the power to convict the claimant for crimes –
Dongtoe v. Civil Service Commission, Plateau State (2001) LPELR-959
(SC) 34-38, D-E
. And the defendant has not otherwise proved the allegations.
Note that it is not the law that a person must have been convicted for
crimes before materials that he committed crimes could be published against
him. So, the learned claimant’s counsel got this part of his arguments
wrong. The law is that, when allegations of crimes are made in a civil
suit, they must be established beyond reasonable doubt, just as in criminal
trial. What this means is that, the defendant who claimed the claimant
committed the alleged crimes, must prove it to the hilt before this Court
that the allegations were true. Has he done that? The defendant failed
woefully to adduce any evidence in proof of the truth that the claimant
committed the alleged crimes. We shall see further on this anon. It
suffices for now that the fact that the defendant had to list out these
criminal allegations alone showed irrefutably that the motive was to defame
the claimant; and I so hold.
I also found that the pleadings and evidence of the claimant that, his
union was on strike at the material time and that; this period fell within
the COVID-19 Pandemic Lockdown throughout the nation, were not
denied by the defendant. They just glossed over them. And these defences
against the allegations of absenteeism are very potent on the allegations
that the claimant refused posting, and even on the allegations that the
claimant refused to appear before the PRODA Board. These are
apart from the facts that the claimant also claimed he did not receive any
posting letter and any invitation to the PRODA Board, the
Board
, which he also claimed, had been dissolved at the material time, and these
claims were not contested too. I will come back to this anon. Suffice that,
these two initial defences against the allegations of absenteeism raised
the questions of Act of God; which if true, exculpate the claimant
from any fault – S. 43(1)(a) of the TDA, which says the period of
strike is counted as temporary discontinuation of contract of employment
and
Malik v. Kaduna Furniture & Carpets Company Ltd (2016) LPELR-41308
(CA) 19-20, B
on the effect of frustration, otherwise called Act of God.
Now, when the claimant pleaded and proved that he was not served with any
letters of invitation to the PRODA Board, the transfer letter and
that no Board sat to dismiss him as alleged by the defendant because, the
Board had been dissolved at the material time, this is what the law call
negative assertions, of which the defendant, who asserted the positives
must prove. Though, I take judicial notice of the fact that, being alleged
official acts, the dismissal letter enjoyed the presumption of regularity,
but this was negated in Exhibit C4, which showed that the
PRODA Board
had ceased to exist since March 07, 2021, whereas the Board allegedly
considered the claimant’s case August 2-4, 2021. The defence argument that
Exhibit C8, which suspended the defendant as DG PRODA and, dated
January 21, 2022, negated Exhibit C4 because; it referred to the defendant
as the DG PRODA, missed the point. Exhibit C4 did not remove the
defendant as the DG PRODA but only showed that, the PRODA
Board stood dissolved or ceased to exist by expiration of tenure on
March 07, 2021. The defendant was an ex-officio member of the Board and
remained in office as the DG, pending the inauguration of another
Board but could not exercise the functions of the Secretary of the Board in
the meantime, until another Board was constituted. The letter clearly
indicated that it does not cover ex-officio members – para 2(b), the phrase
in bracket thereof: “(not being an ex-officio)”, which creates the
exception.
With the CTC of this letter [Exhibit C4], the authenticity, which
the defendant did not challenge, the argument about Exhibit C8 is non
sequitur and is accordingly dismissed. In any case, as the Board eventually
nullified the dismissal [not the libel], and the claimant recalled, it is
clear the Minister never authorised any Board meeting, as alleged by the
defendant, at which the issue of the claimant was discussed. Had it been
so, the Board would not have recalled the claimant, as it could not
override the Minister. The defendant tendered no evidence of this
authorisation as alluded under XX. Thus, the presumption of
regularity of Exhibit C1 is destroyed. And the only thing that could have
revived it was for the defendant to have frontloaded and tender the records
of proceedings or the minutes of the said meeting of the Board allegedly
held August 2-4, 2021 to show that; truly, there was indeed a meeting of
the Board held as alleged in the dismissal letter because; that is the only
way to prove the positive assertion that the meeting held –
AG Rivers State v. Amam (2021) LPELR-56320 (CA) 60, A-C
. And the defendant failed woefully in that respect by failing to produce
before the Court the record of proceedings or the minutes of the alleged
meeting. In this regard, Exhibits D1 & D2 are of no relevance.
The defendant also did not tender the claimant’s answers to the queries
upon which his administrative conviction on crimes was based nor evidence
that the clamant received the alleged notice of invitation to the alleged
PRODA Board sitting, as Exhibit D3 tendered, as the notice of
invitation had no insignia that the claimant received it! By all these, it
showed that no Board meeting held as alleged and that, the defendant truly
lacked the vires to write the dismissal letter on behalf of the Board, even
if the Board existed at the material time.
And this also makes strong the arguments that the Board was non-existent at
the material time. Another aspect of the issue is that, even if the Board
continued to be in existence and continued to sit at the material time, its
sitting would be illegal by virtue of its tenure having expired and; the
defendant would still lack the power to write Exhibit C1 [the dismissal
letter]. And finally, by August 5, 2021, which is the date Exhibit C4 was
issued to reiterate to the PRODA Board’s Chairman of the expiration
of the Board’s tenure and therefore, its effective date, the defendant was
imputed with the knowledge that he lacked the power to author the dismissal
letter, which he authored August 26, 2021: 21 clear days later. Where then
did the defendant derive the authority to write Exhibit C1 August 26, 2021
on behalf of a clearly non-existent Board? And since the claimant said he
denied the commission of the crimes alleged in the queries, the
PRODA Board
, even if it existed, lacked the requisite jurisdiction to try and convict
the claimant on alleged crimes; and thus, would have lacked the
jurisdiction to issue the clearly defamatory dismissal letter showing that
the claimant was convicted for crimes and accordingly dismissed.
Exhibits C8 & C9 corroborated the defendant’s illegalities and the fact
that the defendant lied about the PRODA Board sitting, which
allegedly dismissed the claimant and allegedly authorised the defendant to
author the libelous dismissal letter and therefore, destroyed the defences
of justification, fair comment and qualified privilege –
Onwurah & Ors v. Nwumeh & Anor (2016) LPELR-40304 (CA) 11, A-E
& 17-18, C-B
. I so find. And the implication of this is that the defendant was on a
frolic of his own and was not acting for the PRODA Board when he
wrote the libelous dismissal letter. So, the doctrine of
respondeat superior
is inapplicable in the instant case and thus, the defence of absolute
privilege is nullified in the face of pure illegality. Absolute privilege
only covers malice while acting with authority and not where there is total
lack of authority to act. Absolute privilege attaches to office and when it
is shown that the tortfeasor was not acting for the office but personally
for himself and illegally, absolute privilege is not applicable. And in any
case, the defendant did not show that the law grants it absolute privilege
in the circumstances of this case.
These facts too, proved to the hilt, malice in law and malice in
fact/expressed malice and thereby destroyed the defences of privilege, fair
comment and justification -
Onwurah & Ors v. Nwumeh & Anor [supra] 20-21, E-A
. When it is even realised that the claimant pleaded and gave evidence of
non-service of the libelous discharge letter on him, the defendant
ostensibly hid under the pleadings that the claimant absented himself from
duty without showing that the discharge letter was posted to the claimant’s
given address for communication but it was easy for the defendant to
quickly copy other staffers. This further proved that malice in fact was the
intendment of the letter. The next thing for me to examine is whether there
was publication.
I have held earlier on that by dint of S. 254C-(1)(f)-(h) & (2) of the
Constitution, which enjoins the NIC to eradicate unfair
labour practices and in their stead, encrust international best practices
contained in labour standards, treaties and the labour practices of other
established democracies, the NIC is bound to consider the
applicability of the doctrine of “compelled self-publication”,
which is the darling of modern workplace defamation. Is it applicable in
the instant case? That is the first thing to examine. The law, according to
Arlen W. Langvardt [supra], was ensconced in the 1986
Minnesota Supreme Court’s
decision that two conditions must be met simultaneously for the doctrine to
apply:
“(1) the plaintiff ‘was in some way compelled’ to communicate the
defendant’s false and defamatory statement to a third person; and (2) it
was ‘foreseeable to the defendant that the [plaintiff] would be so
compelled.’ The court found especially compelling the notion that in
situations in which this two-pronged test could be satisfied, there would
be a ‘strong casual link’ between the defendant’s action and the damage’
experienced by the plaintiff. Such casual link, in the view of the court,
would justify the imposition of liability upon the defendant.”
I wish to point out that the doctrine of compelled self-publication is not
without its disadvantage, particularly for libel. Since it insists that the
self-publication must have happened and the claimant lost the employment
opportunity, it means proof of damages is compulsory where it applies, even
for libel where damages are ordinarily presumed without proof [per se]
in common law. Back to the main discussion: did the claimant meet the twin
prerequisites? The claimant herein did not meet the first condition
precedent but met the second. So, the doctrine is not applicable in this
instant situation. The test is not prospective but retroactive. It is based
on actual damage suffered by the claimant, having actually been compelled
to self-tender the libelous discharge letter to the prospective employer [a
third party] and was denied an employment opportunity, as a result.
So, the claimant comes full circle to proof of publication under common
law. We now have to examine whether the claimant actually proved
publication in the normal defamation standard. This I hold the claimant
proved. Since the defendant lacked authority to write the libelous
dismissal letter, it follows that, he lacked authority to publish it to
those listed at the foot of the letter, to whom the dismissal letter was
copied and therefore, to whom it was unlawfully published and, those listed
officials too, lacked interests in its receipts –
Onwurah & Ors v. Nwumeh & Anor (2016) LPELR-40304 (CA) 11, A-E
& 17-18, C-B. The defendant admitted he copied these
people and admission needs no further proof. For this reason, these
officials were third parties to whom the libelous dismissal letter was
maliciously published. Thus, publication is fully established. Being
libel, as the doctrine of compelled self-publication was not applicable,
there is no need to prove damages to the claimant’s reputation, the law
presumes this, which is why it is said that libel is actionable
per se
–
Ezegbo & Anor v. Igbokwe (2016) LPELR-40784 (CA) 24, C
.
The only point that remains for me to examine is the argument that, because
the libelous dismissal letter has been withdrawn and the claimant recalled,
the libel and this suit are inchoate or premature. The defendant even
argued that, because the claimant is still under investigation, the libel
is true and justified. Are these true? I do not think so. First, the
defendant did not withdraw the libel till this very moment but rather
pleaded justification, privilege and fair comment; and all these defences
have been nullified, which means, for the defendant, the libel continues.
And that is what he maintained. In Exhibits C8 & C9, the PRODA
totally disowned the defendant and made it clear that, the defendant
himself was under investigations on allegations of financial improprieties
[breach of procurement law] and; insubordination: for constantly writing to
the Minister over and above the proper official channels and protocols,
refusal to hold PRODA Board meetings and, incessant sacking of
staffers without following the law.
By these, the PRODA exculpated itself of the workplace defamation
and threw the defendant under the bus to roast for it. To show its
seriousness, the PRODA Board suspended the defendant for sundry
offences, including the illegal dismissal of the claimant! For all
practical purposes, the PRODA Board held the defendant out as being
on a frolic and, as being personally liable for his actions. And I found
this to be so. I am of the opinion that, the PRODA Board
could not have withdrawn a dismissal letter it did not authorise in the
first instance and, which the defendant wrote for himself fraudulently and
illegally. So, the letter remains. To hold otherwise, is to make the
defendant benefit from his wrongdoing by relying on a recall, his actions
till date, negated. Equity will not allow a person to benefit from his
wrong by using the law as an instrument of fraud, misdeed or illegality –
Fakayode v. Adeniyi & Anor (2017) LPELR-41356 (CA) 14-15, F-A;
Enekwe v. International Merchant Bank of Nigeria Limited & Ors
(2006) LPELR-1140 (SC) 37, A-C and; Chieke v. Olusoga & Anor (1997)
LPELR-845 (SC) 16-17, D
.
To say a person is recalled and under investigation is different from
maliciously and unlawfully saying a person was found guilty of crimes, and
that is the case before the Court. But the PRODA was definitely
right to recall the claimant, who was fraudulently and illegally dismissed
by the defendant personally, in order for the PRODA to save itself
from culpability for workplace defamation. The dismissal letter, being
fraudulent and illegally made, had no force of law to discharge the
claimant of his employment in the first instance but has the force of law
to constitute defamation. So, the claimant was never really dismissed in
law as the employment was statutory but the claimant was truly libeled. So,
the libel is not inchoate nor is this suit premature. The workplace
defamation was complete when the defendant rushed to libel the claimant
without an iota of authority and without waiting for proper investigation
and trial at the courts of law and without being able to produce evidence
to prove the truth of the criminal allegations. The argument that the
claimant ought to await the outcome of the investigation ordered in Exhibit
C9, as this Court could not clear him of the allegations before the
investigation is completed, is with respect, misplaced. Why did the
defendant not wait for the investigation in the first instance before
libeling the claimant?
Defamation deals with the factual situation at the point of publication of
the libelous materials and not with a futuristic concern. It is
retrospective and not prospective and the cause of action matures at any
point a person is defamed to third parties without proof of the truth. The
NIC is not therefore clearing the claimant of any allegations but
protecting his reputation in the meantime in accordance with the law, which
was injured without investigation and conviction at courts and without
proof of the truth in this Court. The claimant is entitled to his
reputation until proof is offered that he is not so entitled. The defendant
has offered no such proof. This suit was filed pursuant to the publication
of the libelous dismissal letter. The libel was complete at that point. And
the suit is against the defendant alone and was filed before the recall by
the PRODA Board, not the defendant and, it is about the libel and
not about the dismissal; and it is against the defendant alone in his
personal capacity for abusing his office to score a personal vendetta. It
is therefore not premature.
The defendant belatedly raised the issue that the claimant did not prove
that the dismissal letter was communicated to him. First, the defendant did
not plead this in his SD&CC but admitted therein he authored
the dismissal letter and copied the under-listed people and maintained
these in his evidence and FWA. In the second place, how the
claimant came about the publication is not part of the elements to prove in
libel. He could have seen or got wind of it anywhere anyhow. The things
that matter are: the defendant authorship of the libel about the claimant
and, publication to third parties and, not publication to the claimant
himself, especially in libel. And the defendant had admitted the authorship
about the claimant and publications to third parties [the under-listed
people] of the malicious falsehood against the claimant. And the account
section [Head, Payroll], which was copied, had acted on it to stop the
claimant’s salary: thus, completing the publication circle. That is why,
under common law, mere communication of false allegations from the maker to
person alleged alone is not defamatory, until aired to a third party. In
any case, the claimant as CW2 tendered a CTC of the dismissal
letter as the second Exhibit C1. The claimant also tendered Exhibit C6,
where he listed the various sources he got knowledge of the malicious
libelous publications against him. So, the issue of how the claimant got it
is settled. The defendant is therefore liable for the libel; and I so hold.
Since the defendant never wrote the letter in the first instance on behalf
of the PRODA but purely on a personal frolic, PRODA’s
ineffective withdrawal of the letter cannot inure any benefits on the
defendant. It cannot wash him clean of the workplace defamation, which he
has continued to maintain till now. In any case, the defendant, has by his
conduct, rejected such benefits, by maintaining that he did nothing wrong.
He has not apologised till the moment, even when the PRODA Board
has disowned him. That the claimant is still under investigation neither
made the libel true nor inchoate. The libel was consummated on the basis
that the defendant made a finding of guilt against the claimant before the
completion of the supposed investigation, without being able to adduce
evidence to justify the verdict of guilty and thereby defamed the claimant.
The record of proceedings or the minutes of meeting of the alleged
PRODA Board
meeting was not tendered to enable the Court appreciate the materials the
defendant used to arrive at his conclusion. Similarly, the queries and
replies were not tendered to enable the Court see whether they support the
finding of guilt rendered on the claimant, notwithstanding that the
defendant and the PRODA Board had no right to try criminal
offences. The claimant is entitled to his reputation until found guilty by
a competent court of law or shown by the defendant to have truly committed
the criminal allegations in issue by producing evidence of the requisite
weight of proof beyond reasonable doubt, even though, the trial is civil.
The standard of evidence in civil and criminal trials where allegations of
crimes are made is the same: proof beyond reasonable doubt –
Bagobiri v. Unity Bank Plc (2016) LPELR-41161 (CA) 15, A-D
. The defendant did not satisfy this requirement and is therefore fully
liable for the workplace defamation.
And unsuccessful justification aggravates libel –
Ezegbo & Anor v. Igbokwe [sura] 51-56, F-D
. All the authorities cited by the learned defence counsel were therefore
cited off mark the proved facts of this case. In that event, the libel is
proved. And no exhibit has been tendered in respect of the alleged
multiplicity of action: so, the pleadings about it are abandoned and
accordingly discountenanced. Therefore, the claimant succeeds and the lone
issue is resolved against the defendant and in the claimant’s favour. And
the CC, with its umbilical cord tied to the claimant’s loss in the
case, dies a natural death, and the claimant won.
I must now proceed to investigate the reliefs claimed to see whether they
are grantable. Reliefs 1 & 2 are not grantable at the same time. Relief
1 coalesced into relief 2 because, I found this case merited aggravated
damages -
AICE Investment Company Limited & Anor v. Fidelity Bank Plc (2015)
LPELR-25753 (CA), A-C
;
Odiba v. Azege (1998) LPELR-4465 (SC), 15, B-F, 25-26, D-B
;
Adindu & Ors v. Wabara (2014) LPELR-22861 (CA) 46-47, D-A
and, SS. 14 & 19(d) of the NICA.I therefore
grant relief 2 in the sum of N20Million[Twenty
Million Naira] aggravated damages. I took into account the facts
that the claimant suffered financial [economic] deprivation in that, his
salary was stopped and that, despite demands by the claimant, duly served
on the defendant to make amends, the defendant contumaciously remained
adamant in maintaining the unlawful stance till now. I also took into
consideration the defendants gross violation of due process and abuse of
office in dealing with the claimant whose employment had statutory flavours
without following due procedure. The defendant was highhanded and
unconscionable in his conducts. I move to relief 3. I grant relief 3 as
post-judgment simple interest rate per annum till the judgment sum is fully
paid in accordance with Order 47, Rule 7 of the NIC Rules.
I grant relief 4 to the extent that the defendant shall retract the libel
by publication of apologies in two daily newspapers: The Vanguard
and The Daily Sun within 30 (thirty days) of this judgment, which
publications shall be filed up in an affidavit deposed in this Court within
seven days after the publications and, duly served on the claimant within
seven days thereof. I grant relief 5 in full as a consequential order. Cost
follows events. I therefore assessed the cost of this action at
N500Thousand
[Five Hundred Thousand Naira] only and accordingly; grant
it. I give the defendant a grace period of 44 days
[forty-four days] to comply with the reliefs granted,
after which the post-judgment simple interest rate begins to run on the
judgment debts. That ends all the reliefs granted. I must now proceed to
conclude the case.
CONCLUSION
I cannot round up this unique case without a word or two on the reluctance
of the PRODA authorities to do the proper thing, which is to hand
over these allegations of crimes bordering on financial crimes and economic
sabotages to the appropriate authority that can investigate and prosecute
them: the EFCC. The law is that, unless a culprit-employee
unequivocally admits the allegations of crimes, any other body than the
regular courts established under the Constitution cannot try the
allegations and, the employer cannot punish the culprit-employee until s/he
has been tried and convicted by the courts. The best such administrative
authority [employer] could do in the interim, is to follow the law and
interdict or suspend such culprit-employee, pending the completion of the
investigation and conclusion of trial –
Dongtoe v. Civil Service Commission, Plateau State
(2001) LPELR-959 (SC) 34-38, D-E.
And if convicted at the end, then the PRODA can take the necessary
disciplinary actions against such erring staff. From the exhibits that
abound in this case, I found that the claimant, the defendant tortfeasor
himself and even the erstwhile DG before the defendant, all had
allegations of financial crimes and economic sabotages hanging over them,
which the PRODA is personally investigating without vires thus,
inviting series of similar suits. A word is enough for the wise.
That being that, since I have treated all the reliefs and granted what I
thought should be granted, in order to avoid ambiguity, I reiterate the
reliefs granted once again:
1.
I grant relief 2 in the sum of N20Million [Twenty Million Naira]
aggravated damages against the defendant and in the claimant’s favour.
2.
I grant relief 3 as post-judgment simple interest rate per annum till
the judgment sum is fully paid in accordance with Order 47, Rule 7 of
the NIC Rules.
3.
I grant relief 4 to the extent that the defendant shall retract the
libel by publications of apologies in two daily newspapers:
The Vanguard
and The Daily Sun within 30 (thirty days) of this judgment,
which publications shall be filed up in an affidavit deposed in this
Court within seven days after the publications and thereafter, served
on the claimant within seven days of the filing.
4.
I grant an order of perpetual injunction restraining the defendant from
further defamatory statement and publications against the claimant.
5.
I grant cost of N500Thousand [Five Hundred Thousand Naira] only against
the defendant and in the claimant’s favour.
6.
I give the defendant a grace period of 44 days [forty-four days] to
comply with the reliefs granted after which the post-judgment simple
interest rate of 10% per annum begins to run until all the judgments
debts are fully cleared.
The judgment comes to an end. And, it is accordingly entered this day,
Wednesday the 17 th day of April, in the year 2024, under my hand
as the presiding judge.
…………………………..
HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
[6]
Art 1(a) of ILO C190, which defines “violence and harassment” in
the world of work as: “a range of unacceptable behaviours and
practices, or threats thereof,
whether a single occurrence
or repeated, that aim at, result in, or are likely to result in
physical, psychological, sexual or
economic harm
, and includes gender-based violence and harassment”. Defamation is
the behaviour or practice manifested in oral or writing form aimed
at harming a person’s name, which might result in both
psychological and economic loses.
[12]
Chris Mitchell Osazuwa v. International Tobacco Company Plc
& Anor
[supra] and
Mr. El-Aminu Yakubu v. Bontus Oil and Gas Nigeria Ltd & Ors
[supra]. Both are cases in which the NIC adjudicated the
torts of: detinue, economic loss and, duress.
[14]
Unreported Suit No. NICN/ABK/04/2014 – Delivered July 28, 2022.
[15]
Benedict Bakwaph Kanyip, “Labour Justice and Socio-Economic
Development: Welcome Remarks and Setting the Tone for the Public
Lecture on ‘The Role of Industrial Courts and International Labour
Standards in Promoting Good Governance to Support Economic and
Social Development’, organised as part of the
2022/2023 Legal Year Celebrations of the National Industrial
Court of Nigeria
6 October 2022”.
[18]
Eromosele Abiodun, “Nigeria Ratifies 40 IMO, ILO Conventions on
Maritime Safety” [posted 4 years ago] at
https://www.thisdaylive.com
[accessed Jan. 09, 2023].
[19]
S. 254C of the Constitution.
[20]
S. 254C-(2) of the Constitution.
[21]
Richard J. Larson, “
Defamation at the Workplace Employers Beware”
in
Hofstra Labor and Employment Law Journal: Vol. 5: Iss. 1,
Article 2
at
http://scholarcommons.law.hofstra.edu
[accessed July 23, 2022]. John Bruce Lewis et al, “Defamation
and the Workplace: Survey of Law and Proposals for Reform”
Missouri Law Review, Volume 54, Fall 1989, Number 4,
Article 1 at
https://scolarship.law.missouri.edu/mlr/vol54/iss4/1
p. 10 [accessed Apr 09, 2024]. Arden W. Langvardt, “Defamation
in the Employment Discharge Context: The Emerging Doctrine of
Compelled Self-Publication”, Duquesne Law Review,
Volume 26 | Number 2, Article 4, Rev 227 (1988) at
https://dsc.edu/dlr/vol26/iss2/4
[Accessed Apr 13, 2024]. Ann M. Barry, “Defamation in the
Workplace: The Impact of Increasing Employer Liability”,
Marquette Law Review
, Volume 72, Issue 2, Winter (January) 1989 at
http://scholarship.law.marquette.edu/mulr
and
http://scholarship.law.marquette.edu/mulr/vol172/iss2/6
[Accessed Apr 13, 2024].
[37]
Rex v. Obeta & Ors, Sentencing Remarks,
Courts and Tribunals Judiciary, 5 May 2023 at
https://www.judiciary.uk
[accessed May 16, 23]. Also, R-v-Ekweremadu & Ors,
Central Criminal Court, Judgments, Courts and Tribunals Judiciary,
5 May 2023 [Posted May 9, 2023] at
https://www.judiciary.uk
[accessed May 16, 23].
[38]
E. Johnson, “Justice, Access to: Legal Representation for the
Poor” in
International Encyclopedia of the Social & behavioral
Sciences, 2001
at
https://www.sciencedirect.com
[accessed Feb. 27, 2023].
[39]
For example, see the decision of the
Leeds Employment Tribunals
in Case No. 1804080/2021-
Miss A M Isaac v. Pierce & Geddes Limited
, delivered Nov 26, 2021 where Tribunal declined jurisdiction in
workplace defamation because, no statute directly conferred it with
jurisdiction over defamation. The reason is simple, an inferior
tribunal cannot grapple jurisdiction with a superior court; and for
this reason, any slight doubt on its jurisdiction, is usually
resolved against it and in the High Court’s favour.
[40]
I have given the examples of Kenya and Israel.
[44]
Unreported NICN/ABK/01/2020 [Delivered May 19, 2020].
[45]
NICN/EN/759/2014 [Delivered May 21, 2021].
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