Hon. Justice Olukayode Arowosegbe , the Presiding Judge, Enugu Judicial division of the National Industrial Court of Nigeria (NICN), has affirmed the jurisdiction of the court to entertain claim on workplace defamation and awarded the sum of N20m against Dr. Fabian – Director General Projects Development Institute – PRODA as aggravated damages in favour of Engr. Chibuzor Agulana for defamation.
The Court held that the content of the dismissal letter issued to Engr. Chibuzor purportedly found him guilty of crimes without proof and without being a court of law was defamatory.
The Court ruled that the exhibits tendered corroborated Dr. Fabian’s illegalities and that the DG was on a frolic of his own and was not acting for the PRODA Board when he wrote the libellous dismissal letter, and therefore, destroyed the defences of justification, fair comment and qualified privilege.
Justice Arowosegbe ordered Dr. Fabian to retract the libel by publication of apologies in two daily newspapers: The Vanguard and The Daily Sun within 30 (thirty days), which publications shall be filed up in an affidavit deposed in the Court within seven days after the publications and thereafter, served on Engr. Chibuzor within seven days of the filing.
The Court granted an order of perpetual injunction restraining Dr. Fabian from further defamatory statements and publications against Engr. Chibuzor, and awarded the sum of N500,000 against Dr. Fabianas for the cost of action.
From fact, the claimant- Engr. Chibuzor Agulana had pleaded that Dr. Fabian as the Director-General [DG] PRODA wrote a dismissal letter addressed to him which contained defamatory statements and had it published to diverse third parties within his workplace, 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.
In defence, the defendant- Dr. Fabian averred justification, fair comment and privilege, that Engr. Chibuzor failed to appear before the Board after he replied to the query and he was accordingly dismissed in line with the order of the Board.
The DG counterpleaded against the jurisdiction of the Court to entertain the action on the ground that the subject matter on defamation is not within the jurisdiction of the court and further that the proper party were not before the Court, and submitted that, the suit could not be determined without the presence of the PRODA; as the DG acted at all material times for PRODA, by carrying out the directives of the PRODA Board.
The DG Counsel argued that the case is a standalone case of defamation and therefore, not ancillary or connected to anything, and 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 argued that the decision of Engr. Chibuzor to sue his client alone reduced the action to personal suit and took it away from employer and employee dispute. The learned counsel argued that Engr. Chibuzor admitted he was still under investigation for the same allegations, the suit was premature and, the alleged defamation was justified.
In opposition, the learned counsel to Engr. Chibuzor submitted that the Board could not have been brought into the action because the Board was not in existence at the time the DG purportedly acted for it hence, the PRODA and its Board had no hand in the defamation; and urged the Court to dismiss the objection and affirm its jurisdiction.
In a well-considered judgment after careful evaluation of the submission of both parties, the Presiding Judge, Justice Olukayode Arowosegbe held that Preliminary Objection as argued by the learned objector’s counsel was essentially centred on the Trade Dispute Act (TDA) and the TDA did not confer jurisdiction on the NIC under its present constitutional configuration, and it is not a correct approach to believe that all the Third Alteration Act did was only to make the NIC a Superior Court and limit its jurisdiction to what it used to be under the TDA and NICA.
The Court held that 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”.
“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.
“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…
“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.
“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.
“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.” The Court ruled.
On the defendant’s submission that the proper party is not before the Court, Justice Arowosegbe held that 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 the Court. Tort is mainly a personal action. The NIC’s jurisdiction is wider than just suits between employers and employees.
