Bello Ibrahim V Ecobank Plc, cause for concern?
On December 17, 2019, the National Industrial Court (NIC) coram Justice Sanusi Kado in Suit No. NICN/ABJ/144/2018 – Bello Ibrahim v Ecobank Plc deviated from applying the common law principle of “he who hires, can fire, for good reason, bad reason or no reason at all”. Rather, the court relying on Sections 254C(1)(a)(f)(h) & (2) of the 3rd alteration of the 1999 Constitution of Nigeria and Section 7(1)(a) & (6) of the National Industrial Act 2006 (lNIC Act) held that the dismissal of Bello Ibrahim by Ecobank was wrongful as it did not comply with C158 – Termination of Employment Convention,1982 (No. 158). The Court used the Termination Convention as a basis to determine what amounts to “international best practice” for dismissal under Nigerian employment and labour law.
Let me state, first of all, that my cause for concern does not deal with His Lordship’s decision to deviate from and apply, well-established common-law principles within our legal space. In fact, the judgement in Bello’s case, is indeed a welcome development and a bold move for the courts to deviate from common law principles, and expand the scope within it powers as provided under the 1999 Constitution. This approach of deviating from common law principles was given a positive nod in Appeal No. CA/L/1091/2016 – Sahara Energy Resources Limited v Mrs. Olawunmi Oyebola (unreported, delivered on December 3, 2020), where Ugochukwu Anthony Ogakwu JCA on page 29 held:
“But as ensconced as the legal position may have become, has it become like the rock of Gibraltar which cannot be moved? While the doctrine of stare decisis or binding judicial precedent enjoins the courts to follow the decisions of superior courts, it has to be remembered that what the earlier decisions establish is only a principle, not a rule. Rules operate in all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other…The importance of this novel provision, in my deferential view, is that the National Industrial Court, in considering the measure of quantum of damages is to do so in accordance with “good or international best practices in labour or industrial relations”, which shall be a question of fact.
It will be stating the obvious to say that prior to the third alteration, when employment and labour matters were handled by the High Courts, there was no obligation to apply and follow good or international best practices. It is an innovative provision which seems to be directed at enthroning an entirely new employment and labour jurisprudence”
Cause of my concern
However, my cause for concern, as per Bello’s case, is whether the court could have relied on the Termination Convention as a basis for “International Best Practice”.
In Bello’s case, he was employed by Oceanic Bank International (Oceanic) on January 16, 2006. With the merger of Oceanic and Ecobank Plc, Bello became a staff of Ecobank. During Bello’s time with Ecobank, he served diligently and was never involved in any disciplinary misconduct or misappropriation of finance. Bello, after being interviewed, was made the Head of Segment and Analysis of Ecobank.
On resumption as being the head, Bello raised ethical issues regarding fraudulent activities in generating reports. He was shocked to receive on January 31, 2018 a letter terminating his employment without giving reasons for such termination. Bello had raised in his pleading that his termination was not in line with international best practices. Thus, the court went ahead to consider the following laws: Section 254C (1) of the 1999 Constitution: “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 industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.
(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters,
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;
(2) Notwithstanding anything to the contrary in this constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relation or matters connected therewith.”
Section 7(1) of the NICN Act provides:
“The court shall have and exercise exclusive jurisdiction in civil cases and matters:- (a) Relating to:- (i) Labour, including trade unions and industrial relations: and (ii) Environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto: and (6) The court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practices in labour or industrial relations and what amounts to good or international best practices in labour or industrial relations shall be a question of fact.”
After considering these Sections, the Court held: “The idea behind the constitutional 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. It is without doubt from the foregoing provisions of the Constitution and statute that this court has power to in appropriate circumstances apply and enforce international best practices in employment disputes brought before it for adjudication.
Article 4 of Termination of Employment Convention of 1982 No. 158 and recommendation 166 of ILO, clearly makes provisions deprecating determination of contract of employment without giving any valid justifiable reason. Article 4 of Termination of Employment Convention of 1982 No. 158 of the ILO, provide, ‘’The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.’’
The two instruments i.e Article 4 and recommendation 166 on termination of employment Convention no 158 of ILO established minimum international measures against unfair dismissal or termination to safeguard employment security. The standards established by ILO constitute minimum criteria to use in terminating or dismissing employees. For employment to be validly terminated, an employer must provide a valid and justifiable reason for taking such action. Employers are at liberty to terminate for good, bad reasons or no reason at all. This general trite position of the common law rule is however considered not in tune with modern day global labour law best practices.
I have no difficulty in holding that the principle established by the cases relied on by the defendant does not apply to the instant case. In the cases relied by the defendant in asserting the right to terminate with reasons or no reason whether bad or good are distinguishable with the facts of this case, in that, those cases were decided based on the existing law prior to the amendment of the Constitutions. This court has now been clothed and empowered with requisite jurisdiction to deal with international best practices and enforcement of international labour law convention, protocol and treaties, once the country ratifies them and even if they are not domesticated.
The new jurisdiction of the court as encapsulated in section 254C of the Constitution and section 7(1) of the National Industrial Court Act 2006, have clearly and adequately empowered the court to shift from the old common law position of employer’s right to terminate with reasons or no reasons. The implication of the new jurisdiction of the court is the paradigm shift in the law of termination is that employers must now justify every termination as it is no longer the law that employers can terminate for good or bad reasons or no reason at all. This also shows that the current labour regime in the country empowering the court to deal with issues of international best practices clearly demonstrated the resolve of the legislature to modify the traditional common law doctrine giving employers power to perpetrate unfair termination. A careful examination of the factual situation giving rise to the claims of the claimant, the email messages tendered and admitted in evidence, it will readily show that the termination of claimant’s employment without valid justifiable reasons is totally in disregard of the international best practices as provided for in convention no. 158 of 1982 and recommendation 166 of the ILO.”
It is my contention that the Court could not have relied on the Termination Convention as a basis for exercising its jurisdiction, which is “related to or connected with unfair labour practice or best practices in labour, employment and industrial relation matters”.
It is important to note that the Section 7(6) of the NIC Act states that what amounts to good or international best practices in labour or industrial relations “shall be a question of fact.” Furthermore, Section 254C(2) of the 1999 Constitution provides that the NIC would have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of “which Nigeria has ratified” relating to labour, employment, workplace, industrial relation or matters connected therewith.
The question then is, can a court apply a convention as a form of international best practice, which should be a question of fact? My answer is NO! My answer is based on Section 7 of the NIC Act and the Sahara’s case. In Sahara’s case, the Court of Appeal at page 31 goes forward to give judicial interpretations of Sections 254(1)(c) of the 1999 Constitution and Section 7(6) of the NIC Act thus, “The importance of this novel provision, in my deferential view, is that the NIC, in considering the measure of quantum of damages is to do so in accordance with “good or international best practices in labour or industrial relations”, which shall be a question of fact”, and at page 36, “Section 254C (1) (f) and (h) and (2) of the 1999 Constitution empowers the lower court to apply international best practices in labour, and conventions, treaties, recommendations and protocols ratified by Nigeria.”
Having established that international best practices shall be a question of fact, it is important to have a clear understanding of what a question of fact entails. The Supreme Court Per Ogundare, J.S.C. (P.26, Paras.C-F) in UGBOAJA V. AKITOYE-SOWEMIMO & ORS. (2008) LPELR3315(SC), opined that: ‘’A ‘question of fact’ also does not have one meaning as it may mean:- (i) a question which is not determined by a rule of law, (ii) any question except the question as to what the law is; and (iii) any question that is to be answered by the jury rather than the Judge, is a question of fact.’’ Per ONNOGHEN, JSC. (P.17, Paras.C-E.).
In the course of this research, it was difficult to find a precise judicial interpretation of the phrase
“international best practice”. Interestingly, this phrase was not defined in Bello’s case. The closest definition of the phrase, “international best practice” can be seen in the Black’s Law Dictionary, 5th pocket edition, which merely defines “best practice” at page 77 as 1. “an optimally efficient and effective mode of proceeding or performing a particular activity, esp. in business” and 2. “A description of such a mode of proceeding or performing prepared so that other people or companies may learn and follow it as a set of guidelines or rule.” Indeed, the lack of a precise definition for the phrase, “international best practices” leaves the term open to all manner of conjectures. The lack of limits and boundaries is particularly striking and it heralds questions like “who sets the parameters for international best practice?”, “what is the standard for measuring “international best practices?”
In the absence of a precise definition and delimitation in specific terms, of what “international best practices” means, the phrase, “international best practices” is akin to “public policy” which was described by Lord Denning in Enderby Town Football Club Ltd v The Football Association Ltd [1970 E. No. 2145] – [1971] Ch. 591] as an unruly horse.
Perhaps, it is the lack of precision in the determination of what constitutes “International Best Practices” that necessitated Section 7(6) of the NIC Act to provide expressly that what amounts to international best practices shall be a question of fact. The difficulty in attaining a definition of what constitutes international best practice was captured succinctly in the article, “Best Practice usage and shortcomings”. It starts with this interesting stance: “Best Practice is currently a very popular piece of jargon in the English – speaking world, used (and misused) pervasively in a vast array of disciplines, ranging from humanoid robotics to human services. Yet this apparently simple concept is deceptively slippery, laden with surplus meaning.”
With respect to Bello’s case, it is particularly curious that the Honourable Court in its progressive approach relied on the Termination Convention, which is an International Labour Treaty in holding that Ecobank should have given Bello a reason before terminating his employment. Without diminishing the need for more judicial activism and innovation, the point must be made that such an approach must be rooted in the firm foundations of the law.
It is hard to understand the basis upon which the learned Judge relied on the Termination Convention in arriving at his decision of same being international best practice. This is because the Termination Convention can neither be described as “international best practice” since it is not possibly a question of fact nor can it be described as a Convention, which can be enforced in Nigeria as same has not been ratified by Nigeria. It is elementary knowledge that in Nigeria’s dualist approach to the application of international law, for treaties and conventions to be effective and binding in the Nigerian domestic sphere, such treaties must be domesticated by the legislature. Section 12(1) of the 1999 Constitution lends credence to this assertion as it provides that: ‘‘no treaty between the Federation and any other country shall have the force of law in Nigeria except to the extent to which any such treaty has been enacted into law by the National Assembly.” This law is further reechoed in Section 254C(2) of the 1999 Constitution. From the records available, the Termination Convention, which was relied on by the learned Judge, has not been ratified in Nigeria.
To this end, the recourse to this Convention which has not gained the force of law by ratification in Nigeria could not possibly have been right as it fell short of both Section 7(6) of the NICN Act, Section 12(1) of the 1999 Constitution and Section 254C(2) of the 1999 Constitution.
The inapplicability of Conventions and Treaties which have not been ratified by Nigeria was discussed by the Supreme Court in the case of Medical and Health Workers Union of Nigeria v. Minister of Health & Productivity & Or [2008] 2 NWLR (Pt 1072) 575 where it held that the provisions of an International Labour Convention could not be invoked before a Nigerian Court unless enacted by the National Assembly.
Conclusion
The NIC has earned a reputation for being fiercely progressive and protectionist towards the interests of employees. This in itself is not bad especially as it protects employees who are presumably weaker from the antics of employers. However, it is important for the Court to operate within the parameters of the law.
Admittedly, the decision of the Court in Bello v. Ecobank would go a long way in curbing the arbitrariness of employers. But the question is: “at what cost?” It definitely should not be at the expense of the express provisions of section 7(6) of the NICN Act and Section 254C (2) of the 1999 Constitution.
Thus, the great concern for me is that this judgment if allowed, would give a leeway for courts to rely on laws and treaties outside Nigeria as a basis for international best practice and jettison the law which is that “international best practice” must be a question of fact. This itself may be a subversion of the 1999 Constitution and her sovereignty, which is the jurisprudence for the constitutional provision.
It is without question that the Termination Convention cannot possibly be deemed as an “International best practice” since it is not a question of fact. It is also not in doubt that the Court could not rightly have applied the Convention considering that it is yet to be ratified by Nigeria. We wait to see what stance the appellate Court will take.
Iweze, a lawyer writes from Lagos.
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