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Overview of proposed National Industrial Court of Nigeria (Civil Procedure) Rule 2015

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Adejumo

Adejumo

Happily, Order 7 Rules 15 (1) of the proposed Rule appears to have sounded the death knell on the spate of objections along this line when it (now) expressly provides:‘All originating processes or other Court processes filed by any party before the Court shall be served on any other party in any part of the Federation without leave of Court.’

It only remains to add here, in passing, that the Federal High Court may want to consider a clear statement along this line when it decides to review its rules of Court.

Service of court processes via ‘short message services’, telephone calls etc The proposed Rules intendemploying advances in telecommunicationstechnology to effect service of court process on parties.

Order 7, an elaborate provision on service of processes provides, inter alia, that a party in a matter may be served ‘ by sending a notification by way of hearing notice through telephone short message services (SMS) of a process filed before the Court in which he or she or it has been named as a party’ (O.7 r.1 (1)(f) ).

Hearing notice or notice of adjourned date issued by the Court may also be communicated by telephone call to the numbers provided by the parties or their counsel (O.7 r.2 (a). Hearing notice(s) may also be uploaded to the electronic mailing address provided by a party.

There is some restriction as to use though: the employment of any of these devices for service is allowed for(all) court processes filed except originating processes.O.7 r. 1(4) Innovative provisions, no doubt.

On the flipside however is that even as the rules provide that proof of service of process made using any of these deviceswill beelectronically downloaded and printed copy of the process, proof, or fact of service can still be dogged in hotly contested arguments, not least on the form and shape of admissibility of digital evidence.

It is also not foolproof, even as it does not detract from the argument that the Court can ill-affordto ‘shut its eyes to the mysteries of the computer’ in the conduct of its affairs (paraphrasing the Supreme Court inEsso West Africa Inc. v Oyagbola (1969) 1 NMLR 194).

It is in this light that the establishment of communication and service centre to enable electronic filing of court processes and documents –with particular reference to O.66- is a welcome idea.

Pre-trial Conference: when parties’ case-manage dispute Unlike what obtains under the rules of the other courts where the active case management idea of pre-trial conference is being utilised, conduct of pre-trial conference envisaged by the proposed Rules endows the parties with much flexibility and management (of their dispute)to attempt settlement of the matter with less intervention by the court.

It is largely laissez faire. Upon exchange of originating (and reply) processes, parties may convene/initiate a pre-trial conference, choosing time and venue (away from the court) for the conference.

This is an innovative idea because of the inherent potential of making litigation less adversarial and more cooperative whilst also promoting reconciliation.

The breadth of areas on which the parties are expected to reach a consensus during pre-trial conference helps to considerably narrow down the issues that should go to trial. Upon conclusion of the pre-trial conference, parties are to file a copy of the report of the pre-trial conference with the Court.

Facilitating the integration of Alternative Dispute Resolution One of the central objects of this civil procedure rules is promoting recourse to alternative dispute resolution mediums as an alternative to adversarial litigation.

This is evidently nuanced in the provision(s) of the O.24 of the rules on the court making directions with respect to recourse to ADR (O.24).

In a related vein, the National Industrial Court of Nigeria (ADR) Centre Instrument 2015(establishingan Alternative Dispute Resolution (ADR) Centre) and the National Industrial Court of Nigeria (ADR) Centre Rules 2015 being rules to regulate all proceedings referred to the ADR Centrewererecently issued by the President of the Court.

The provision of O. 42 on ‘Amicable Settlement’, encouraging parties initiating and amicably resolving their dispute(s) out of court may also be cross-referenced with this laudable provision.

Pleading with sufficient particularity act(s) constituting sexual harassment, workplace discrimination etc, and reliance on applicable international protocol, convention and treaty S. 254(C)(1)(g) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 confers on the NICN juridical powersin ‘matters relating to or connected with any dispute arising from discrimination or sexual harassment at workplace’. Two recent decisions of the Court readily come to mind in this regard.

An award of damages was made for sexual harassment in the workplace in Ejieke Maduka v. Microsoft Nigeria Limited &Ors[2014] 41 NLLR (Pt. 125) 67 NIC, whilst termination of employment on account of pregnancy was heavily damnifiedin Mrs. FolarinOrekaMaiya v The Incorporated Trustees of Clinton Health Access Initiative, Nigeria &Ors.(2012) 27 NLLR (Pt. 76) 110 NIC. In Omeka’scase, reliance was placed on an International Labour Organisation (ILO’s) convention which Nigeria has ratified.

In reaching its decision, the Court referred to the Discrimination (Employment and Occupation) Convention, 1958 (No.111) in considering a claim of unlawful termination of employment on the basis of pregnancy. O. 14 of the proposed Rules heightens the discussion on the NICN’s jurisdiction in this regard.

A claimant is expected to plead with sufficient particularity the act, action, correspondence, communication, gesture, utterance, manner or mode that constitutes the alleged sexual harassment or workplace discrimination, and where such an action or workplace discrimination involves a breach of or non-compliance with international best practices or international protocol, convention or treaty on labour, employment and industrial relations sufficient materials and particulars relating to the international best practices or international protocol, convention or treaty is to be given.

Even though endowed with jurisdiction/judicial power to apply international best labour practices,O.23 r. 4 further enjoins a party seeking to invoke same to state the particular principle(s) or authority concerning the international best practices or extant International LabourStandardsuch a party is seeking the Court to apply.

Fast track Even as a stated objective of the rules is the fast-track case management of all civil matters before the court, Order 25 is specific on cases to be placed on fast-track.

It, however maintains fidelity with its stated objectof being withina much wider scope when it allows part(ies) to apply to have particular matters not expressly covered,designated ‘Fast track’. To be continued.


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