The National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 (“New Rules”) which was made on the 6th day of December 2016 but came into effect on the 5th day of January 2017 is a remarkable improvement of the National Industrial Court (Civil Procedure) Rules of 2007. The New Rules revokes the National Industrial Court Rules, 2007 and Practice Direction, 2012.
There is the need for the President of the Court to clarify the correct citation and commencement date of the rules before it is fully circulated. Order 1 Rule 2 provides that “these Rules may be cited as the National Industrial Court of Nigeria (Civil Procedure) Rules, 2016 and shall come into effect on the 5th day of January, 2017. However, the short title of the Rules as boldly written on the copy obtained from the court is National Industrial Court of Nigeria (Civil Procedure) Rules 2017. Likewise, the commencement date indicated before the Orders is 3th (sic) Day of January 2017.
Whilst the 2007 rules contained twenty-nine Orders, the New Rules provides for sixty-seven Orders. The difference in the Orders contained in the two rules is an indication of the improvement in the latter over the former.
The New Rules is a reflection of the expanded jurisdiction of the court as provided for by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. The New Rules is very detailed on a number of issues, some of which will be discussed shortly. Under the old rules there were a lot of gaps which left the court with no option than to rely on the provisions of Order of that rules, which provides that -
“Where no provision is made in these Rules as to practice and procedure or where the provisions are inadequate, the Court may adopt such procedures as will in its view do substantial justice to the parties.”
Order 15 of the 2007 rules gave wide room to judges to adopt different procedures in many circumstances where the rules do not make provisions, thereby making the procedures of the court unpredictable and confusing in many circumstances. Though Order 58 Rule 24 of the New Rules is similar to Order 15 of the 2007 rules, resort to it will be very minimal in view of the robustness of the new rules.
Some of the significant innovations in the New Rules are electronic filing of processes and documents (Order 6A); entitlement of deceased employee (Order 10 and 11); Pre-Trial Conference (Order 12);Claims of Sexual Harassment and Discrimination in the workplace (Order 14); procedure in action for breach of international protocol, convention and treaties and proof of existence of international best practice (Order 14 A); enforcement of arbitral award (Order 17 rule 3); reference of disputes to ADR Center (Order 24); fast track matters (Order 25);prohibition of legal practitioners from granting press interview on a matter pending before the Court either within the precincts of the Courts or environs (Order 58 rule 27); appointment of Public Trustee in deserving cases where there is intra-union or intra-organizational dispute before the court (Order 59 )etc.
One of the features of the New Rules is its human face. Order 10 Rule 1 of the New Rules provides that
“filing of any process related to or connected with outstanding salary, gratuity, pension, benefits, or any other entitlement of deceased employee in any of the Registries of the Court shall attract twenty-five (25%) percent only of the stipulated filing fees”.
Order 11 rule 10 provides that
“Any process related to or connected with outstanding salary, benefits, allowances, gratuity, pension or any other entitlement of a deceased person filed in any of the Registries of the Court, shall be placed on fast-track”.
Order 25 rule 1 provides for other matters that qualify to be placed on fast track. Suchmatters include, cases concerning or relating to a strike, lock-outs or any other form of industrial action that threatens the peace, stability and economy of the country or any part thereof; a declaration of trade dispute by essential services providers; a trade dispute directly referred to the court by the Minister of Labour and Productivity; any matter relating to entitlements of a deceased employee; and any other matter the President of the Court may direct to be placed on fast-track.
Order 14 Rule 1 lays down the procedures for Claims of sexual harassment whilst Order 14 Rule 2 lays down the procedure for Claims of workplace discrimination.
Order 14A provides that
“Where an action involves a breach of or non-compliance with an international protocol, a convention or treaty on labour, employment and industrial relations , the Claimant shall in the complaint and witness statement on oath, include the name date and nomenclature of the protocol, convention or treaty; and proof of ratification of such protocol, convention or treaty by Nigeria.”
It went further to provide that
“In any claim relating to or connected with any matter, the party relying on the International Best Practice, shall plead and prove the existence of the same in line with the provisions relating to proof of custom in the extant Evidence Act.”
Before now the procedures to be adopted in these matters were unclear.
Order 17 Rule 3(3) of the rules now provides for the enforcement of Arbitral awards thus- “An award made by an arbitrator may by leave of the Court, be enforced in the same manner as a judgment or order of Court”. This in my view is a good development for commercial entities and their employees who have arbitration clauses in their contracts and a development that will encourage parties and practitioners to adopt arbitration as a means of dispute resolution in labour and employment matters.
Order 24 provides for Alternative Dispute Resolution by way of Mediation and Conciliation at the Court-annexed ADR centre. Where parties are able to resolve their matter by mediation or conciliation, the terms of settlement will be adopted as the Judgment of the Court. However, if parties are unable to settle, the Court may set the matter down for hearing and determination on its merits.
One of the most interesting provisions of the New Rules is the provision of Order 58 rule 27 which provides that:
“No legal practitioner shall be allowed to grant any press interview, make comments or give any opinion or argument that may touch on a matter which is sub-judice before the Court either within the precincts of the Court, its appurtenances or environs.”
This provision was made to stem the tide of unethical practices of lawyers making statement to the press about matters which are pending before the court. This provision is a reinforcement of the provision of Rule 33 of the Rules of Professional Conduct 2007 which provides that “A lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any extra-judicial statement that is calculated to prejudice or interfere with, or is reasonably capable of prejudicing or interfering with, the fair trial of the matter or the judgment or sentence thereon.”
Any legal practitioner who breaches Order 58 Rule 27 of the New Rules is liable to be committed for contempt of court as provided under Order 63 of the rules.
Order 59 Rule 1 provides that :
“where there is an intra-union or intra-organizational dispute before the Court, the Court may suo motu (on its own) or upon a motion on notice by any of the parties make an order for the appointment of a Public Trustee to manage the administration, affairs and finances of the trade union, employees’ or employers’ organization involved in any intra-union or intra-organizational disputes.
Provided that such application shall be accompanied by an affidavit stating the reasons for the appointment of the Public Trustee and the CTC of the Process(es) filed in respect of the intra-union or intra-organizational dispute before the Court.
Provided further that the Respondent(s) is given the opportunity to file a counter affidavit in response to the application and in compliance with the rules of the Court”
Order 59 Rule 2 went further to provide for the qualities to be considered in appointing an individual as a Public Trustee by the Court.
The court through the new rules maintained its status as a court of substantial justice. Order 5 Rule 1 provides that failure to comply with any of the rules of the Court may be treated as an irregularity and the Court may give any direction as it thinks fit. Order 5 Rule 3 provides that the Court may direct a departure from these Rules where the interest of justice so requires. Order 5 Rule 6 (1) provides that the Court may apply the rules of common law and rules of equity in any proceeding before it concurrently, provided that where there is conflict between the two rules the rules of equity will prevail.
By Order 5 Rule 6 (2), the rules provides for departure from the provisions of the Evidence Act in deserving cases. The rules provides that in any proceeding pending before it , the Court may as a specialized Court regulate its procedure and proceedings as it thinks fit in the interest of justice and fair play. In appropriate circumstances, the Court may depart from the evidence act as provided for in Section 12(2)(b) of the National Industrial Court Act, 2006 in the interest of justice, fairness, equity and fair-play.
Order 5 rule 6(3) sums up the flexible nature of proceedings of the Court thus,
“In any proceeding before it , the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.”
In conclusion, the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is a watershed in the history of the Court. The Rules will go down as one of the most comprehensive and most flexible Rules any Court can boast of in Nigeria. I commend the President of the National Industrial Court of Nigeria for this milestone and for lifting the Court from oblivion to its present enviable height.
*Ahmed Adetola-Kazeem, MCIArb(UK) is a Legal Practitioner and a Counsel in the law firm of Gani Adetola-Kaseem, SAN LP
Ed's Note - This article was first published here.
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