THE STATUS OF ILO STANDARD ON UNFAIR DISMISSAL IN NIGERIA: IMPERATIVE FOR A

LEGISLATIVE ACTION

BY

ANUSHIEM, MATTHEW IZUCHUKWU ESQ.

ABSTRACT

The current state of the law of termination of employment and dismissal from employment has been a
source of concern to stakeholders in labour and industrial relation. The position being that of termination
of employment and dismissal of employee at the will of the employer for good, bad or no reason at all.
This has caused a lot of problems in the world of labour and industrial relation thereby motivating the
international labour organization in fashioning out standards against unfair dismissal which member states
are enjoined to adopt. The standards are found in ILO Termination of Employment Convention 158 of
1982 and Recommendation 119 of 1982. These standards are to pass the constitutional domestication test
before it can be applied locally. The objective of this work is therefore to x-ray the role of the Nigeria
legislature in ensuring that this international labour treaties and conventions have a hitch free application
in Nigeria. The researcher adopt analytic approach and comparative analysis as methodology using text
books, case law, journal articles, and internet materials. At the end, the writer makes the necessary
conclusion that labour should be given a special status in the economy of Nigeria by the three organs of
government and special attention should be accorded to labour, employment and industrial relations
matters. This should be shown in the Laws of Nigeria by the legislature in Nigeria ensuring that ILO
Convention on unfair dismissal is applied in Nigeria without hitches and this; the legislature will do by
ensuring that every constitutional impediment to application of the convention is removed to ensure a
smooth application of Section 254 (c) (f & h) of the Constitution of Federal Republic of Nigeria (Third
Alteration) Act 2010.

1.0 Introduction:

Application of International Labour Organization Standard revolves around the roles of the
organs of government of a particular Country and the Constitution of the Country. This is
because the Constitution of a country determines the role which any organ of government of a
country plays in ensuring application of international treaties and conventions. The constitution
of Nigeria bestowed on the legislature enormous role in the domestication of treaties and
convention.1 International Labour Standards evolve from a growing international concern that
action needs to be taken on a particular issue, for example, providing working women with
maternity protection or ensuring safe working condition for agricultural workers. 2 The need to


ANUSHIEM, MATTHEW IZUCHUKWU ESQ. is a lecturer in Faculty of Law, Nnamdi Azikiwe University, Awka.
1
Constitution of Federal Republic of Nigeria 1999 as amended.
2
See for instance Occupational Safety and Health Convention 155 of 1981;

1
abolish forced labour and ensure freedom of Association of workers prompted the adoption of
international labour standards to that effect.3

ILO termination of employment convention4 which is the International Labour Organization

Convention on unfair dismissal is targeted at ensuring employment security in member-states.
The challenges of globalization have made international labour standards more relevant than
ever. This is because of the avalanche of benefits accruing from International Labour
organization standards.

2.1 Benefits of International Labour Standards:

2.1.1 International Labour Standards are Paths to Decent Work: International labour
standards are first and foremost about the development of people as human beings. In ILO
Declaration,5 the international community recognized that labour is not a commodity and indeed
labour is not like an apple or a television set, an inanimate product that can be negotiated for the
highest profit or the lowest price.6

2.1.2 International Labour Standards are International Legal Framework for Fair and
Stable Globalization: Achieving the goal of decent work in the globalized economy requires
action at the international level, the world community is responding to this challenge in part by
developing international legal instruments on trade, finance, environment, human rights and
labour. International labour standards therefore lay down the basic minimum social standards
agreed upon by all players in the global economy.

2.1.3 International Labour Standard ensure a Level Playing Field in the Global
Economy: It helps governments and employers to avoid the temptation of lowering labour
standards in the belief that this could give them a greater comparative advantage in international
trade.

3
Abolition of Forced Labour Convention 105 of 1957 and Freedom of Association and Right to Organize
Convention 87 of 1948.
4
158 of 1982.
5
Declaration of Philadelphia of 1944.
6
http://www.ILO.org/global/standards/introduction-to-internationa-labour-
standards/thebenefitsofinternationallabourstandards accessed 1/7/14.

2
2.1.4 International Labour Standards are Means of Improving Economic Performance:
This may occur by employment protection which can lead workers to take risk and to make
innovations.7

2.1.5 International Labour Standards are Safety Net in Times of Economic Crisis:
Strengthening social dialogue, freedom of association and social protection systems such as
protection of employment can be better safeguards against economic downturn.8

2.1.6 International Labour Standards are Strategies for Reducing Poverty: Economic
development has always depended on the acceptance of rules, legislations and functioning legal
institutions to ensure protection of property rights, respect for procedure and the enforcement of
contracts. International labour standards call for the creation of institutions and mechanisms
which can enforce labour rights. With combined set of defined rights and rules, functioning legal
institutions can help formalize the economy and create a climate of trust and order which is
essential for economic growth and development.9

2.1.7 International Labour Standards are the Sums of International Experience and
Knowledge: International labour standards represent international consensus on how a particular
labour problem could be tackled at the global level and reflect knowledge and experience from
all corners of the world. Governments, employers’ and workers’ organizations can benefit from
the standards by incorporating them in their labour policies.

The above benefits of international labour standards are all needed in Nigeria wherein the
concept of termination and dismissal at will has led to tremendous social and economic
problems.

There is therefore need for Nigeria to look inward and pursue policies that will lead to
achieving the ratification and application of labour standards particularly the international labour
organization standards on unfair dismissal found in ILO termination of Employment

7
World Bank: World Development Report 2005: a Better Investment Climate for Everyone (Washington, DC, 2005),
Pp. 136-156.
8
E. Lee, The Asian Financial Crisis; The Challenge for Social Policy (Geneva, ILO, 1998).
9
ILO: Decent Work and The Informal Economy, Report VI, International Labour Conference (90th Session, Geneva,
2002) Pp. 39-54.

3
convention.10 Application of this standard will in no small measure bring sanity into labour and
industrial relation in Nigeria as it will definitely bring to an end arbitrary exercise of power of
dismissal and termination for good, bad or no reason at all.

Exercise of any power that is devoid of reason is arbitrary and such arbitrary exercise of
powers is likely to lead to economic crisis, anarchy and recurrent industrial unrest. In the present
democratic dispensation, efforts are made worldwide to ensure that exercise of powers against
proprietary rights are backed by reasons. This had been tested in Nigeria in the world of politics
when Nigerian government stood against arbitrary exercise of power to substitute a candidate
who has already participated and won a party’s primary election and by that becomes the party’s
flag bearer. This brought about sanity in the system and every arbitrary exercise of such power of
substitution was quashed by the court.

Before the amendment of the Electoral Act11, which introduced the requirement of not
just reasons but cogent and verifiable reasons, the court have been passive when faced with a
dispute as regards substitution of a candidate by political party. The court regarded such intra
party dispute as domestic affairs of a political party which the courts do not have the competence
to adjudicate on.12 According to Amucheazi and Onwuasoanya, the above decision offered a
Carte blanche to political parties, their leadership and powerful cliques to act as they pleased
with the assurance that courts would not entertain any challenge to their actions. In other words,
might became right in the internal affairs of political parties.13

But in 2006, following the amendment of the electoral Act,14 a new approach emanated
from the provision of the Electoral Act15 which requires a political party wishing to substitute
one candidate with another to adduce cogent and verifiable reasons for the substitution. Where a

10
Op Cit.
11
Electoral Act, 2006 Section 34
12
Onuorah v. Okafor (1983)14 NSCC 494; Osakwe v INEC & 40 Ors [2005]13 NWLR (pt. 942) p. 44 CA; Adebusuyi v
Oduyoye [2004]1 NWLR (pt 854) p. 406; Abana v. Obi [2004]10 NWLR (pt 881) p. 319; Jang v INEC [2004]12 NWLR
(pt. 886) p. 46.
13
O.D, Amucheazi & C. Onwuasoanya, The Judiciary, Politics and Constitutional Democracy in Nigeria, 1999-2007
(Enugu: SNAAP PRESS Ltd, 2008) p. 71
14
Op cit.
15
Ibid, Section 34(1) & (2).

4
political party fails to offer such reason any purported substitution would be declared null and
void. This was applied in the case of Ararume v Ugwu.16

The import of this voyage is to buttress the fact that the rule that you cannot force a
willing employee on an unwilling master upon which this dismissal and termination without
reason is based cannot be a challenge to the application of ILO Termination of Employment
Convention as an unwilling master has been made to sponsor a willing servant in an election and
that brought to an end to the arbitrary exercise of power of substitution by political parties.

3.1 Meaning of Labour Standards

Labour standards are the rules that govern how people are treated in a working environment.
Labour standards are found mostly in conventions and recommendations. A convention lays
down the basic principles to be implemented by member states that ratified it while
recommendation supplements the convention by providing detailed guidelines on how the
convention could be applied.17 Recommendation may not be linked to any convention in which
case it stands on its own and independent of any convention.

International labour organization standards are therefore those rules set out by
international labour organization in their international legal instruments to govern the treatment
of persons in labour and industrial relations.

The standard on unfair dismissal connotes the rules and regulation set up by the
International Labour Organization regulating the conditions under which an employer can
terminate the employment of his worker as well as prescribing justifiable valid reasons for
dismissal as well as procedural safeguards to be observed before a worker’s employment could
be brought to an end.

These International Labour Organization standards are important for the following
reasons:

(a) International Labour Standards provide Consensus on Minimum Labour Standards: It

is obvious that a country’s way of life is usually tested by its compliance with international

16
[2007]12NWLR (pt. 1048) p. 367; See also Amaechi v Omehia [2007]9NWLR (pt. 1040) p. 504.
17
O.P. Obi, ‘The Concept and Purpose of International Labour Standard’ NJLIR Vol 2 No. 5 (2008) P. 66

5
standards. Labour relation is not an exception to the above fact. A country’s labour laws and
practices are also measured against its compliance with the international labour organization
standards. Therefore one cannot but agree with Obi18 when he stated that, international labour
standards have statutory effect on domestic labour standards of member states of the
international labour organization.

It is also important to point out here that whenever, International Labour Organization
standards which is traceable to a convention is ratified by a member state, it becomes binding on
the member state at the international level, but when domesticated, it becomes applicable in the
member states and creates binding legal obligation among participants in labour and industrial
relation of the member states.

International Labour Organization standards are contained in the constitution of International

Labour Organization, conventions, treaties, recommendations, less formal instruments, case laws
interpretation of quasi-judicial bodies, instruments adopted at special conferences, United
Nations Instruments and Regional Instruments. According to Obi, the Legal character and
legitimacy of the standards make them a part of the corpus of international law as a guiding
source of law to domestic labour legal system and Administration19. Labour standards of
International labour organization is the focus of this work and is the standards which seek to
entrench security of employment both in purely master servant relationship and in contract of
employment backed by statutes otherwise called contract of employment with statutory flavour.
The source of the standard is the International Labour Organization termination of Employment
Convention No. 158 of 1982 which replaced the Termination of Employment Recommendation
of 1963.20

One burning issue in the modern day labour and employment relation is the security of tenure of
employee. The law had developed from the common law position to the position under the
statutes where little protection is afforded to employees in employment regulated by statutes to
the present day word of labour wherein the security of tenure acquired international outlook. At
common law, it used to be employment at will which means whether rightly or wrongly done,

18
Ibid
19
Ibid P. 69
20
www.Ilo.org.com Accessed 2/9/2013.

6
termination of employment or dismissal of an employee brings the contract of employment in
question to an end. Under the statute, that is employment regulated by statutes or regulations
made pursuant to powers granted by a statute termination of employment by employer is not fait
accomplii. Once it is shown that termination or dismissal was carried out without strict
compliance with the procedure prescribed by statutes, the purported termination or dismissal will
be declared null and void.21 However this statutory protection is only available to contract
protected by statutes and not ones governed purely by contract of employment entered into by
parties inter see. However there is now a move away from what security of tenure thitherto is to
the new international stand point on security of tenure of employment. This position is found in
the international labour standard on unfair dismissal provided for in the International Labour
Organization Convention22 which shall be considered in the subsequent sub heading. The
relationship between the employer and the employee had been a source of an unending litigation
and a turbulent one particularly with the growing private sector employment. There is therefore
need to fill the glaring gap in the Nigerian law on termination of employment to bring it in line
with the international labour organization standards.

4.1 Meaning of Unfair Dismissal

The concept of unfair dismissal though a novel idea in Nigeria labor jurisprudence23 has not lend
itself to a precise definition as there exist darts of academic work on the concept in the world
over particularly in Nigeria where the concept has not really been given recognition. However,
reasonable clue is taken from Osborn’s concise law dictionary24 which attempt to explain and
not to define the concept ‘Unfair Dismissal’. The dictionary states thus on the meaning of unfair
dismissal:

When an employee can prove that he has been dismissed, the

burden of proving the reason for the dismissal is on the employer.25
The determination of whether the dismissal was fair or unfair

21
Iderima v. R.S.C.S.C. [1995]16 NWLR (pt 951) p. 384; Raji v University of Ilorin [2007] 15 NWLR (pt 1057 p. 264;
NEPA v Ango [2001] 15 NWLR 9pt 737) p. 627; UJam v I.M.T [2007]2 NWLR (pt 1019) p. 470; C.B.N v Igwilo
[2007]14 NWLR (pt 1054) p393 at 402; Gov, Ekiti State v Akinyemi [2011]17 NWLR p. 373 ar 387.
22
ILO Termination of Employment Convention 158 of 1982.
23
O. Animashaun, ‘Unfair Dismissal: A Novel Idea in Nigerian Employment Law’, NJLIR, Vol. 2 No. 1 (2008) p. 1.
24
S. Bone, Osborn’s Concise Law Dictionary (9th edn, London: Sweet & Maxwell,2001) p. 392
25
English Employment Rights Act, 1996, S. 98(1).

7
 depends on whether, having regard to the reason shown by the
employer, the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the employee.15

The above merely described situations of dismissal that may amount to unfair dismissal. Also a
close perusal of the above will equally show that unfair dismissal is dismissal without a reason or
reasons not connected with the work of the employee or his capacity.

This means that where dismissal is not substantiated, with reason or termination is not
done with appropriate notice, the dismissal is presumed unfair.

From the foregoing, it is crystal that unfair dismissal is a concept that is targeted at a
dismissal or termination without substantial reasons.

5.1 ILO Standard on Unfair Dismissal

There is absence of statutory protection against unfair dismissals in Nigeria. However,

International Labour Organization in its efforts to set standards of practice in the work place
particularly as it relates to security of tenure of employment fashioned out recommendation27 and
convention28. The organization was influenced in its decision to fashion out the above
recommendation and convention as a panacea to the ugly situation where an employer can
determine his employee’s employment without any reason. Such situation is perceived as a
violation of all things fair and just. Article 4 of the Convention29 provides thus:

The employment of a worker shall not be terminated unless there is

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 above provision of the convention is an appreciable move from the position
of common law termination all will which is still applicable in Nigeria. It affords
workers a big deal of security at work.

15
S. Bone, Osborn’s Concise Law Dictionary, op cit. p. 392.
27
ILO Recommendation 119 Concerning Termination of Employment at the Initiative of the Employer, 1963.
28
ILO Convention 158 on Termination of Employment Replaced ILO Recommendation of 1963.
29
ILO Convention 158 on Termination of Employment, 1982.

8
 The trust of the convention is to ensure both substantive and procedural fairness before
dismissal or termination of employment at the initiative of the employer. Thus, the employer is
required to give a valid reason for dismissing or terminating his employee’s contract of
employment. A reason is valid if and only if it is connected with the capacity or conduct of the
employee. Such reasons that are connected with the capacity or conduct of the employee are
reasons like gross misconduct, incompetence, disobedience, negligence and such reasons that
may be deemed to be connected with the operational requirement of an undertaking,
establishment or service may be reasons like transfer of undertaking, privatization as in Nigeria,
merger and acquisition or takeover of an undertaken as provided in Nigerian laws.30 This means
that any exercise of power of termination of employment or dismissal of an employee contrary to
the provisions of the above convention is unfair.

Article 2 of the convention31 provides thus:

This convention applies to all branches of economic activities and

to all employed persons.

By the above provision, the convention applies to employees in purely master servant
relationship as it applies to employees whose contract of employment is backed by statutes
without any discrimination as against the case in Nigeria labour and industrial law
jurisprudence32 which has a clear cut distinction between master servant relationship and contract
of employment protected by statutes or regulation made pursuant to a statutory provision. This
distinction in Nigeria can be seen in the work of Animashaun, when he stated thus:

‘The status and implication of employment with statutory flavor in

contra-distinction with master-servant relationship was fully
explored by Karibi Whyte in Imoloane v WAEC33 where he said; it
is now accepted that where the contract of service is governed by

30
G.G. Otuturu, ‘The Limits of the Application of the Rules of Natural Justice in Contract of Employment’ NJLIR, Vol.
2 No 1. (2008) p. 80; See also the provisions of Companies and Allied Matters Act, Cap C 20 LFN 2004, S. 538 and
S.539. Investment and Securities Act, 2007. Sections 119, 120, 121.
31
Op cit.
32
See B. Atilola, ‘Legal Redress for wrongful termination of contract of Employment: what Lawyers must Note’
N.JLIR, Vol. 5 No 2 (2011) p. 12
33
(1992)2 N.S.C.C. 274 at 383.

9
 the provision of statute or when the conditions of service are
contained in regulations derived from statutory provisions, they
invest the employee with legal status higher than the ordinary one
of master-servant. They accordingly enjoy statutory flavor.34

This portrays that since no distinction exist in ILO standard which is embedded in the ILO
termination of Employment convention as it is the case in Nigeria, therefore the distinction with
respect to the available remedies to those distinctive categories of contract of employment in
Nigeria becomes non-sequitor under the ILO standard. The appropriate authority to determine
the fairness or otherwise of the termination can make whatever order that is appropriate in the
light of the facts and circumstances of a particular case. The above position shows that the
provisions of ILO Convention, apply to both employee in master-servant relationship and
employees with statutory protection. This is made manifest in the provision of Article 8, 9 and 10
of the Convention.35 The provision of the above two articles are set out seriatim: Article 8 (1)
provides thus:

A worker who considers that his employment has been

unjustifiably terminated shall be entitled to appeal against that
termination to an impartial body such as a court, labor tribunal,
arbitration committee or arbitrator where termination has been
done.

Article 9 (1) provides thus:

The bodies referred in Article 8 (1) of the convention shall be

empowered to examine the reasons given for the termination and
the other circumstances relating to the case and to render a
decision on whether the termination was justified.36

34
O. Animashaun, ‘Foisting A Willing Employee on An unwilling Employer: The Remedy of Re-instatement Revisited
NJLIR Vol. 3 No 2 (2009) p. 5 see also Olatunbosun v NISER Council [1988]3NWLR (pt. 8) p. 25 at 40; Eperokun v
Unilag [1986]4NWLR (pt 34) p. 162 at 201.
35
Op cit. cited in www.Ilo.org.com accessed on 2/9/2013.
36
Ibid. Article 9 (1).

10
In doing so, the body will shift the burden of proving the reasons for termination to the
employer.37 The court shall also have regards to evidence adduced by parties and procedures
provided by national laws.38 The body shall then decide whether the reasons adduced for the
termination was sufficient valid reasons recognized by Article 4 of the Convention39

Article 5 of the Convention40 captures what constitutes valid reasons for termination of
employment. It provides thus:

The following inter alia, shall not constitute valid reasons for termination.41

(a) Union membership or participation in union activities outside workings hours or, with the
consent of the employer within working hours;

(b) Seeking office as, or acting or having acted in the capacity of a workers’ representative;

(c) The filing of a complaint or the participation in proceedings against an employer involving
alleged violation of laws or regulations or recourse to competent administrative authorities;

(d) Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political
opinion, national extraction or social origin.

(e) Absence from work during maternity leave.

The implication of the above is that any determination of contract of employment in any manner
based on the above reasons amounts to unfair dismissal.

Still on invalid reasons for determination of contract of employment, Article 6 of the

Convetion42 provides that temporary absence from work because of illness or injury shall not
constitute a valid reason for termination. What this entails is that when the illness is protracted
and in such a degree and nature that it affects that capacity of the employee to carry out the
object of the employment relationship, it may well justify, termination of the contract of
employment.

37
ILO Termination Employment Convention, op cit. Article 9(2) (a).
38
Ibid, Article 9(2) (b).
39
Ibid Article 9(3)
40
Ibid.
41
Ibid Article (5)
42
Ibid.

11
 The definition of what constitutes temporary absence from work, the extent to which
medical certification shall be required and possible limitations to the application of paragraph 1
of this article shall be determined in accordance with the methods of implementation by member
states as referred to in Article 1 of this convention.43

Also Article 7 of the Convention44 provides that the employment of a worker shall not be
terminated for reasons related to the workers conduct or performance before he is provided an
opportunity to defend himself against the allegations made, unless the employer cannot be
reasonably expected to provide this opportunity.45 The provision of the above article reiterated
the fundamental principles of fair hearing in the determination of contract of employment.46 The
convention as stated earlier applies to purely master servant relationship as it applies to contract
with statutory flavor unlike Nigeria common law position that draws emphatic distinction
between the above stated categories of contract of employment. The absence of this distinction in
the convention is captured in Article 2 of the Convention47 which provides that the convention
applies to all branches of economic activities and to all employed persons. The expression ‘all
employed persons in the convention’ depicts any person who is engaged in a gainful employment
of any category and ‘all branches of economic activities’ means any category of contract of
employment. This goes to show that where this convention is adopted, a worker in a purely
master-servant relationship will be entitled to fair hearing as against the position in Nigeria.
However a member state may exclude the following categories of employed persons from all or
some of the provisions of this convention.48

(a) Workers engaged under a contract of employment for a specified period of time or a
specified task;

(b) Workers serving a period of probation or a qualifying period of employment, determined

in advance and of reasonable duration.

43
Ibid.
44
Ibid.
45
Ibid; However, this convention did not highlight circumstances under which the employer cannot be reasonably
expected to provide an opportunity to an employee who is to be removed from employment.
46
Ibid Article 7.
47
Op Cit . See Also J.E.O. Abugu, ‘ILO Standards and the Nigerian Law of Unfair Dismissal’ AJICL Vol 17 No. 2 (2009)
P. 183
48
Ibid Article 2(2).

12
(c) Workers engaged on a casual basis for a short period.49

Despite the leverage seemingly allowed member-states to exclude certain categories of

workers from the operation of the convention if they so wish, the convention went ahead to
impose obligations on a member-state who wishes to exclude such workers from the application
the convention to provide statutory safeguard to the class of employees excluded. The safeguard
is imbedded in Article 2(3) of the Convention.50 It provides thus:

Adequate safeguards shall be provided against recourse to contract

of employment for a specified period of time the aim of which is to
avoid the protection resulting from this convention.51

Necessary measures may be taken by the competent authority or through the appropriate
machinery in a country, after consultation with the organizations of employers and workers
concerned, where such exist, to exclude from the application of this convention or certain
provisions thereof categories of employed persons whose terms and conditions of employment
are governed by special arrangements which as a whole provide protection that is at least
equivalent to the protection afforded under the convention52.

The above creates an obligation on a member state who intends to exclude certain category of
employed persons from the provision of this convention to afford such persons protections
equivalent to the protections afforded them under the convention. This is indeed an international
entrenchment of security of tenure to these vulnerable categories of workers. Contrary to the
common law position of termination at will.

6.1 Application of ILO Standard on Unfair Dismissal in Nigeria: Imperative for a

Legislative Action.

The objective of this subheading is to x-ray the role expected of the legislature in the
domestication of this well meaning international labour standard. The concept of domestication
in the context of international treaties simply refers to a process by which a state party to a treaty

49
Ibid.
50
Ibid. Article 2(384).
51
Oserogho & Associates www.oseroghoassociates.com
52
Op cit. Article 2 (4).

13
achieves incorporation of the treaty into its municipal law.53 This incorporation of international
treaties and conventions requires the legislative acts of the legislative arm of government in
Nigeria54. This is because by the state of Nigeria constitution, any international treaty or
convention without domestic legislative cover cannot give rise to any legally enforceable right or
obligation on the part of any person in a domestic court. This means that the legislature has the
duty and obligation to ensure that any treaty or convention ratified by the executive arm of
government is enacted into domestic law so that citizens can take the benefits and rights inherent
in the treaty or convention. The constitutional obligation is provided in section 12(1) of the
constitution55 which provides thus:

No treaty between the Federation and any other country shall have
the force of law except to the extent to which any such treaty has
been enacted into law by the National Assembly.

The above shows I repeat, that in Nigeria, unless a treaty is domesticated, it cannot be enforced.
The provision of the constitution above cited clearly shows also that the National Assembly is
constitutionally empowered to undertake the domestication of international treaty to which
Nigeria entered into and ratified by the executive arm of government. This is made manifest by
the provision of the constitution which provides thus:

The National Assembly may make laws for the federation or any
part thereof with respect to matters not included in the exclusive
legislative list for purposes of implementing a treaty.56

The above provision is explicit on the fact that the National Assembly is not deterred by the
constitutional division of powers of the legislature in the legislative list rather is allowed to cover
the field of legislation as far as it relates to enactment of international treaties and conventions
into Nigeria municipal law. This may create an impression that the legislature at the state level is
out rightly divested of its legislative powers in matters not included in the exclusive legislative

53
A.B. Ahmed, ‘Ratification And Domestication of Treaties: The Role of the Legislature’. Op Cit P. 7.
54
Constitution of Federal Republic of Nigeria, op cit S.12
55
Constitution of Federal Republic of Nigeria, Op Cit.
56
Ibid Section 12(2)

14
list57 for which they ordinarily posses. However, outright removal of legislative powers of states
legislature cannot be gathered from the letters of the constitution which provides thus:

A bill for an Act of the National Assembly passed pursuant to the

provisions of subsection 2 of this section shall not be presented to
the president for Assent, and shall not be enacted unless it is
ratified by a majority of all the Houses of Assembly in the
Federation.

From the foregoing provision, one can easily deduce that once a bill is proposed to be enacted
into law for purposes of domesticating an international treaty or convention the subject matter of
which falls outside matters included in the exclusive legislative list, the state Houses of
Assembly who ordinarily have the competence to legislate on such matters must play a role
before such Bill will be enacted into law. Another important point is that such Bill does not
require the assent of the president. What informs the absence of the assent of the president is
quite mindboggling but the concern of the researcher is on labour standards which is in the
exclusive legislative list.58 Therefore the legislature saddled with the responsibility of ensuring
the implementation of labour standard on unfair dismissal is the National Assembly. This
concept of domestication of international treaty and convention is influenced by two
jurisdictional approaches called monism and dualism in the implementation of International
treaties and conventions.

In monist jurisdictions, the legal system of a country is considered to include treaties to

which the state has acceded to59 Monists conceive international law and domestic law or
National law as part of a single legal order so that international law is immediately applicable
within national legal system without any act of domestication.60 Thus, treaties in these
jurisdictions are regarded as self-executing i.e. upon acceptance, by signature, ratification or
accession, (or any other means so recognized by the Vienna law of treaties); they become part of
the municipal law of the jurisdiction and do not require any subsequent legislation to give them

57
Ibid, Section 4, See also part I & II of Second Schedule to the Constitution of Federal Republic Nigeria Op cit.
58
Ibid, item 34 part I of second Schedule.
59
A.B. Ahmed, ‘Ratification & domestication of Treaties: The Role of The Legislature’, Op. Cit, p. 8.
60
J.E.O. Abugu, Treaties on the Application of ILO Convention in Nigeria, (Lagos: University of Lagos Press 2009
P.10.

15
force of law. This means that once accepted, a treaty in a monist jurisdiction is looked upon by
all governmental bodies including courts of law within a state as a source of law.

Also in monist jurisdictions treaty making process involves securing the approval of the
legislature prior to the state expressing its consent to be bound.61 Civil law jurisdictions are
mostly monist.

In dualist countries, to which jurisdiction Nigeria belongs, the system of international law
and municipal law exist separately so that rules of international Law do not have effect at the
municipal level unless they have been expressly transformed into domestic law by the use of
appropriate constitutional machinery. Common wealth countries mostly belong to this dualist
jurisdiction by reason of their shared British legal and cultural heritage. Treaties here are
regarded as part of a separate legal system distinct from the domestic legal system. It is required
that a state enact appropriate legislation to give a treaty or convention force of law domestically.
This is regarded as transformation of the treaty which can be undertaken in the following ways:

1. Direct incorporation by means of a schedule to the constitution of a state party;

2. Incorporation of some or whole of the treaty into the provisions of the law of a state party;
3. Enactment of some of the treaty’s provisions in one or more local legislation, or enactment
of the treaty provisions as a whole by means of an enforcement and Ratification Act.62 Also
in dualist jurisdictions power to negotiate and ratify treaty is solely with the executive
without the involvement of the legislature. The position of Nigeria constitution on
implementation of treaty has given the legislature enormous role to play as has been
showcased above. The enormity of the role is informed by the position of the constitution
of Nigeria that without the impact of the legislature, no treaty will have the force of law in
Nigeria.63

The above analysis shows that while the executive arm of government of Nigeria is expected to
ratify this all important labour convention, the National Assembly should be ready to take a
drastic action by providing an enabling legal framework that will ensure application of this all
important labour convention without the necessity of domestication so that Nigerian workers can

61
A.B. Ahmed, Op. cit, P. 8.
62
See for instance African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act op cit.
63
Kehinde Odebanmi v. Ojo Oyetunde (Unreported Suit No. CA/EK/EPT/1/2012 Judgment delivered on 30/11/2012.

16
benefit from the labour standard. The Nigerian legislature tried giving labour matters a special
attention by the enactment of the Constitution of Federal Republic of Nigeria.64 However, effort
made in the provision of the constitution of Federal Republic of Nigeria65 has rendered the
objective of the Third Alteration Act impracticable. There is therefore need to remove the
seeming conflict between the two provisions of the same constitution through a legislative
action.

Effort is constantly made by the National Assembly in Nigeria to remove the impediment
usually cause by the involvement of the legislature in the domestication of treaties validly and
legally concluded by the federal government before such treaties become binding at the domestic
level. This is notwithstanding the variations in the practice of countries as regards ratification
and domestication. In Nigeria ratification is solely the responsibility of the Executive while
domestication is that of the legislature. In some countries like Russia, Germany, France and
USA, the legislature plays nominal role in the process of ratification and such ratification is the
only action that is required to make treaty applicable in the municipal courts of such countries. It
is therefore my view that the benefits derivable from this well thought out ILO standards on
unfair dismissal provided in ILO Termination of Employment Convention can easily be enjoyed
by Nigeria workers if this municipal impediment of domestication is extricated from our
constitution. The need for the legislature in Nigeria to take a step further by removing the
negative operational effect of Section 12 of the Constitution of Federal Republic of Nigeria in
labour matters becomes manifest.

This is because labour stands an enviable place in the economy of any country and ought
to be given exceptional and special attention. Therefore, any bottleneck in the application of ILO
standards more especially ILO standard on unfair dismissal should be removed with reasonable
speed.

We cannot over emphasize the fact that the legislature has taken a bold step sometime to
offer this exceptional regards and treatment to labour issues by trying to remove domestication
the Constitutional domestication impediment in the application of International labour treaties,
conventions and protocols. This the law makers in Nigeria attempted doing in sections 254(c) of

64
(Third Alteration) Act 2010, Section 254 (c) (f and h)
65
Op cit S. 12

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1(F & H) and 254 (C) (2).66 For the avoidance of repetition the provision will not be stated here
as it has been adequately set out in preceding pages of this work. The step taken by the
legislature in doing away with the constitutional impediment of domestication however seems
contradictory, conflicting or better still inconsistent with the long time constitutional impediment
of domestication which had also been set out in preceding pages of this work. Allowing these
seemingly conflicting provisions to exist has no doubt brought about more challenges than
prospects in the application of labour treaties and convention in Nigeria.

Some writers think that in the light of the above provisions of sections 254 (c) 1 (F & H)
& 254(C) (2), that the legislature no longer has a role to play whatsoever on treaties relating to
labour matters.67 If this position is taken by the court,68 it then means that the era of termination
of contract of employment of an employee without reason which is rampant in Nigeria will be a
thing of the past and the employers will learn to tread with caution as the court can validly rely
on the provision of the constitution and National Industrial Court Act, to apply the provisions of
ILO standard on unfair dismissal found in ILO Termination of Employment Convention.69

However, other writers have also maintained that the provisions of sections 254C (1) (F
& H) and 254 (C) (2) override the provision of section 12 of the Constitution 70 and the changes
made to the constitution through sections 254C (1) f & h and 254 (C) (2) of the Constitution of
Federal Republic of Nigeria71 conferring jurisdiction on the National Industrial Court on matter
arising from treaties, conventions, protocol as far as they relate to labour, workplace and
Industrial Relations do not undermine or negative the powers inuring to the legislature in Nigeria
over matters of domestication of international treaties and conventions.72 I cannot but ally myself
with the position of the authors who perceive a seeming contradictory stance in our constitution
regarding application of labour treaties and convention. I am of the view that more legislative

66
Constitutions of Federal Republic of Nigeria (Third Alteration) Act Op cit.
67
C.K. Agomo, Nigeria Employment and Labour Relation Law And Practice, Op cit p. 104; A.B. Ahmed, Ratification
and Domestication: The Role of the Legislature, Op cit, p. 14.
68
The National Industrial Court of Nigeria.
69
Op cit. Particularly Articles 2, 4, 5, 6, 7, and 11.
70
Op cit Section 12.
71
2010.
72
O. Adebambo, ‘Treaties And Conventions In The Context of Industrial Relations: The Enforceability of
International Agreements locally’
http://www.mendap.com/x/203988/employee+rights+labour+relations/Treaties+And+Convention+In+The+Contex
t+of+Industrial+Relations+The+Enforceability+of+International+Agreements+Locally. Accessed /4/01/14.

18
action is needed to actually achieve the intendment of the provision of Sections 254(C) (1) (f &
h) and 254 (C) (2) in order to give the effect intended to be given to labour treaties and
conventions. Let the legislature have a rethink and take another bold step to accomplish its aim
of seeing that international labour standard are applied in Nigeria and to prevent the danger
inherent in frustrating the implementation of International labour organization standard as was
gathered in other countries. This will in no small measure bring security to the employees in
Nigeria both in public and private sector.

7.1 Conclusion:

Considering the enviable place labour and employment occupy in the economy of every nation,
there is need to remove every constitutional impediment that hinder the application of labour
treaties and convention in Nigeria. The removal of such impediment is the constitutional
responsibility of the legislature. It is also found that the legislature in Nigeria had at least realized
the place of labour in the Nigeria economy and tried to address the constitutional impediment by
placing international labour treaties, conventions and protocols above every other international
law. The legislature did this by enactment of constitution of Federal Republic of Nigeria (Third
Alteration) Act 2010 and the National Industrial Court Act, 2010 wherein the National Industrial
Court is vested with jurisdiction to entertain matters relating to, pertaining to or connected with
labour, employment and industrial relation as well as matters connected thereto. However, the
legislature while undertaking this effort, lost sight of the extant constitutional requirement of
domestication provided in Section 12 of the constitution. It is therefore my view that in the light
of the existence of Section 12 of the Constitution, the objective of the Third Alteration Act,
cannot be realized.

8.1 Summary of Recommendation:

After a critical analysis of the subject of this paper, the researcher recommends the following:

a. Labour should be given a special status in the economy of Nigeria by the three organs of
government and special attention should be accorded to labour, employment and industrial
relations matters. This should be shown in the Laws of Nigeria.

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b. The legislature in Nigeria should ensure that ILO Convention on unfair dismissal is applied in
Nigeria without hitches and this, the legislature will do by ensuring that every constitutional
impediment to application of the convention is removed.
c. There should be a further amendment of the constitution of Federal Republic of Nigeria 1999 as
amended by making the provision of Section 12 therein inapplicable to labour, employment,
Industrial Relation and connected matters. This will in a way ensure a smooth application of
section 254 (c) (f and h) of the (Third Alteration) Act, 2010.
d. The legislature may also amend the constitution of Federal Republic of Nigeria (Third Alteration)
Act, 2010 by inserting a clause which will repeal the provision of Section 12 of the constitution of
Federal Republic of Nigeria 1999 as amended either expressly or impliedly.
e. Nigerian government through the legislature should make haste to enact an Act which
will regulate unfair dismissal in Nigeria. In this Act, provision will be made bringing all
categories of employees except probationers, casual workers and domestic workers
within the scope of the application of the Act as it is the case in countries like Antigua
Barbuda, Australia, Ethiopia, Malawi, Lativia Lesotho, Sweden, Spain, Ukraine and in
compliance with the liberty allowed member states who wish to exclude certain
categories of employed persons from the operation of the convention. Also the Act will
make provisions which will ensure justification for termination of contract of
employment and adopts all the invalid reasons for termination of contract of employment
provided in ILO Termination of Employment Convention.
f. It is also of outmost importance for the legislature to provide for reinstatement and re-
engagement as remedies for unfair dismissal in the proposed unfair dismissal Act
irrespective of the nature of the contract of employment involved. Reinstatement is taking
the employee back to his old job. A re-engagement order is defined as an order that the
employee be taken back by the employer into a position comparable to that from which
the employee was removed or other suitable employment. The above will encourage the
employer to train and retrain his employees knowing full well that he cannot terminate
contract of employment of his employee without reason and if he does, the employee will
be put back to his job or a job comparable to his old job.

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