MARITIME LABOUR, ADMIRALTY JURISDICTION AND THE CONSTITUTION.
This paper seeks to highlight the disturbing jurisdictional conflict between Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the Constitution”) and Section 254C of the Constitution of the Federal Republic of Nigeria, Third Alteration Act (the “Third Alteration Act”) bordering on the exclusive jurisdiction of both the Federal High Court (“the FHC”) and the National Industrial Court of Nigeria (“the NIC”) as it relates to claims by seafarers for wages.
Whilst it is trite that the FHC has exclusive jurisdiction over maritime claims enforceable by an action in rem, the position appears unsettled as it relates to claims by seafarers in the light of the amendment introduced by the Third Alteration Act where the NIC is seen to have been given exclusive jurisdiction in all labour/employment related disputes.
The concluding part of the session will discuss some recommendations for resolving this needless conflict.
ADMIRALTY JURISDICTION AND THE CONSTITUTION
Some of the notable Constitutional provisions relating to the jurisdiction of the FHC and the NIC are set out below.
- 251 (1) provides:-
“Notwithstanding anything to the contrary 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 Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters: –
(g) any admiralty jurisdiction……and carriage by sea.”
Additionally, section 1(1)(a) of the Admiralty Jurisdiction Act, 1991 (AJA) which further reinforces the exclusive admiralty jurisdiction of the FHC provides that:
“The admiralty jurisdiction of the Federal High Court (in this Act referred to as “the Court”) includes the following, that is –
- a) jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in section 2 of this Act;”
Furthermore, section 2(3) of the AJA provides:-
“A reference in this Act to a general maritime claim is a reference to –
(r) a claim by a master, or a member of the crew of a ship for –
(i) wages; or
(ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including by operation of the law of a foreign country.”
Section 5 of the AJA provides:-
“ (3)In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the Court against that ship, aircraft or property; and for the purpose of this subsection, “maritime lien” means a lien for-
(c) wages of the master or a member of crew of a ship…….”
The exclusive jurisdiction of the Federal High Court in admiralty matters is also provided for in section 7 of the Federal High Court Act 1973 (as amended).
Section 7 (1) provides:-
“The Court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to – …….
(g) any admiralty matter………….
ESTABLISHMENT/EXCLUSIVE JURISDICTION OF THE NIC IN LABOUR RELATED DISPUTES
Section 6 of the Third Alteration Act provides that Chapter VII, Part 1 of the Constitution is amended by introducing the National Industrial Court of Nigeria as Sub-heading CC to Section 254; and section 254C sets out the jurisdiction of that Court.
Section 254C provides:-
- 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 by the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:-
- 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, employee, worker and matters incidental thereto or connected therewith…
- 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 office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
ANALYSIS OF THE CONFLICT
Obviously, there is a conflict between the provisions of section 251 of the Constitution and section 254C of the Third Alteration Act as it appears that both sections seek to confer exclusive jurisdiction on both the FHC and the NIC in maritime labour related disputes.
If the provisions of Section 251 had not been specifically overridden by the phrase “notwithstanding the provisions of section 251”, it could be argued with force that seamen are excluded from the jurisdiction of the NIC. However, there is nowhere in the Constitution, as amended, that the NIC is granted jurisdiction over admiralty matters. It goes without saying that if a claim by a seaman is couched in admiralty, the NIC has no jurisdiction.
The admiralty jurisdiction of the Federal High Court is entrenched in Section 251 of the Constitution and reinforced by the Federal High Court Act as well as the AJA. To imply that the FHC has no jurisdiction to entertain claims by seamen on the flimsy ground that it is the NIC that now has jurisdiction over labour related disputes would clearly lead to an absurdity as the effect would be to deprive seamen of the right to ventilate their grievance in court. In SONNAR (NIG.) LTD. V. PARTENREEDERI NORDWIND, the Supreme Court held that it is against public policy to produce uncertainty in the law.
SUBSISTING JUDICIAL PRONOUNCEMENTS ON THE CONFLICT
The conflict highlighted above became topical in SUIT NO: FHC/L/CS/1807/2017 between ASSURANCEFORENINGEN SKULD (GJENSIDIG) v MT “CLOVER PRIDE” where the Firm of Femi Atoyebi & Co. (‘the Firm”) acted as Solicitors to the Plaintiff.
SUMMARY OF ARGUMENTS
Relying on section 254C of the Third Alteration Act, it was argued forcefully by the Defendant’s counsel that the FHC has no jurisdiction to entertain the Plaintiff’s claim on the ground that the Third Alteration Act had divested the FHC of its traditional jurisdiction in admiralty matters. The Defendant’s Solicitors further argued that by reason of the said Third Alteration Act, it is the NIC (and not the FHC) that has exclusive jurisdiction to entertain a claim for crew wages. The Defendant’s Counsel further submitted emphatically that the provisions of the AJA or any other enabling laws which confers exclusive jurisdiction on the FHC in relation to wages are null and void for being inconsistent with the Third Alteration Act.
In support of the Plaintiff’s Solicitors position that the Third Alteration Act does not divest the FHC of its traditional Admiralty jurisdiction in matters arising from abandonment and non-payment of crew wages are that:
- FHC court has ample jurisdiction to entertain the matter because the in rem proceedings brought by the Plaintiff is for enforcement of a maritime claim (involving a maritime lien) which is cognizable by law and ought to be secured by a maritime lien on the vessel in favour of the Plaintiff. Therefore, it cannot be correct to posit that FHC does not have jurisdiction to entertain the matter.
- The purpose of section 254C of the Third Alteration Act, 2010 is simply to elevate the status of the NICN as a superior court of record created by the Constitution. Contrary to the insinuation by the Defendant, the purpose of the Third Alteration or the intention of the draftsmen is NOT to divest the FHC of its traditional and known admiralty jurisdiction especially, in the absence of any specific provisions in either the Constitution or the NICN Act conferring such admiralty jurisdiction on the NICN or any other court in Nigeria apart from the FHC.
- It is trite that where the provisions of the Constitution are unclear and ambiguous or controversial in nature, the court is not obligated to stick to the literal rule of interpretation particularly, where such literal interpretation would not reveal the genuine intention of the draftsmen. In such instance, the court is permitted to adopt the purposive approach in construing the provisions of the Constitution and the court can do this by making recourse to extraneous materials in addition to looking at how the law stood before the amendment and the mischief that the amendment was meant to cure.
- The reference to wages in section 254C of the Third Alteration does not include/cover “crew wages” as same was never contemplated by the draftsmen; and it is trite that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue.
- In the event that the FHC finds that it no longer has jurisdiction, the appropriate order to make is NOT a striking out order but an order transferring the matter to the NICN, while retaining the arrest order until security is provided for the claim, as the NICN can make an order for the interim attachment of the Defendant in analogous circumstances.
In the final analysis, the presiding Judge, Hon. Justice M.B. Idris held that the FHC lacks the jurisdiction to entertain the Plaintiff’s claim. Consequently, the court set aside the order of arrest and transferred the matter to the NIC. A similar decision denying the jurisdiction of the FHC in crew wages claims has been handed down by the Court of Appeal in MT SAM PURPOSE & ANOR v AMARJEET SINGH BAINS & ORS,
RESOLUTION OF THE CONFLICT
The writer posits that the constitutional amendment contained in section 254C does not override the exclusive jurisdiction of the Federal High Court over admiralty matters as conferred on that court by section 251(g) of the same Constitution. Accordingly, logic would dictate that where a seaman brings an admiralty action in rem against a ship, that action cannot be brought in the NIC. However, when a non-in rem action is brought by a seaman seeking reliefs in pursuance of his rights as adumbrated in sections 150 – 164 of the Merchant Shipping Act, it is submitted that such suit may be brought in the NIC pending a resolution of the conflict. The difference here is that in one case the claim is against a ship, whereas in the other, the claim is in personam and a ship is not targeted.
Alternatively, and this would appear to be a simpler approach, the legislature should amend section 6 of the Act No. 3 of 2010 which incorporates section 254C into the Constitution. It is suggested that the following amendment to section 245C(1) would resolve the conflict in a neat manner. The amended Section 254C should read:-
“(1) Subject to the provisions of section 251 and notwithstanding the provisions of Sections 257 and 272 and anything contained in this Constitution …”
The needless conflict occasioned by the provisions of sections 251 and 254C of the Constitution clearly needs to be addressed urgently. Whilst it is trite that where two laws conflict, the latter in time prevails, it is doubtful whether that principle can be applied to conflicting provisions of the same Constitution. It is submitted that rather than going through the complex process of a constitutional amendment, the same result can be achieved by amending section 6 of the Third Alteration Act.
In the interim, when confronted with objections to its jurisdiction, judges of the FHC are urged to adopt the purposive approach in interpreting the conflicting provisions of sections 251 and 254C of the Constitution (in such a manner as to provide a suitable remedy for seamen) rather than divesting themselves of jurisdiction in admiralty matters.
 Cap. 23, Laws of the Federation of Nigeria, 2004.
 No. 3, 2010.
 (1987) 3 NSC 175 at p. 189, per Eso, JSC.
 APPEAL NO: CA/LAG/CV/419/2020 (Unreported)
This paper was authored by Abiodun Ogunbameru and Chikaodili Dimazoro-okeke who carries on their legal practice at the Law Firm of Femi Atoyebi & Co.