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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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