On May 31, 2022, the President of the National Industrial Court of Nigeria (NICN) issued a practice direction known as “NICN filing of Applications/Motions in Trade Union Matters and Marking of Exhibits Practice Direction No.1, 2022.” (The Practice Direction). The Practice Direction applies to all causes and matters before the Court and became effective on June 13, 2022.
In the coming months and years, issues addressed in the Practice Direction are bound to come up for adjudication. This article is basically a review of the provisions of the Practice Direction. The work finds that paragraph 3(1) of the Practice Direction conflicts with the NIC Rules 2017, the NIC Act 2006, and the 1999 Constitution of Nigeria (as altered) and therefore null and void. The work also finds that the penalty provisions in paragraph 3(3) of the Practice Direction appear draconian, incomprehensible, and capable of undermining justice delivery by the Court. The article concludes by proposing the various principles of law that may be employed by Judges of the Court in interpreting and applying the provisions of the Practice Direction.
An overview of the Practice Direction
The Practice Direction concerns two matters, namely (a) the filing of applications and motions in trade union matters and (b) the marking of documents/exhibits in any matter at the (NICN or the Court). Paragraph 3(1) of the Practice Direction is dedicated to the former, while paragraph 3(2) of the Practice Direction addresses the latter.
As regards the filing of applications and motions in trade union matters, paragraph 3(1) of the Practice Direction establishes that originating processes, applications or motions that seek to restrain the holding of delegates’ conference of a trade union or that relate to the conduct of trade union elections must be filed either in the Abuja or Lagos Judicial Division of the Court. With respect to the marking of documents and exhibits, the Practice Direction stipulates what is required from both the clamant and the defendant in any action filed before the court.
For the claimant, paragraph 3 (2)a, b, c, d, j and k are relevant. Notably, the Practice Direction provides that the claimant must clearly indicate all the documents to be relied on at the trial in his statement of facts and witness statement on oath. The claimant is also required to attach all the documents and mark them serially as documents are marked in originating summons; and indicate whether the original of the documents will be available at the trial. The claimant is to identify, refer to and mark the part of the documents (e.g., paragraphs, pages, section etc.) to be relied on. The Practice Direction requires a claimant to lay foundation, where required, in the statement of facts and witness statement on oath for the admissibility of the frontloaded documents.
Finally, in filing a reply to the statement of defence, the claimant must refer and clearly indicate paragraphs, pages and parts of the documents to be relied on at the trial and where the claimant intends to object to any document referred to in the statement of defence, the claimant must indicate and state the basis of his objection in the reply to the statement of defence as well as the witness statement on oath.
On the other hand, paragraph 3(2) (e), (f), (g), (h), and (i) of the Practice Direction apply to every defendant to an action before the Court. In this regard, and just like in the case of the claimant, a defendant is required to indicate all the documents to be relied on at the trial in his statement of defence and witness statement on oath and indicate whether the original of the documents will be available at the trial. The defendant is also required to clearly refer to and mark all the relevant paragraphs, pages or parts of the documents to be relied on.
The Practice Direction places an obligation on a defendant who intends to object to the admissibility of a document to be tendered by the claimant to indicate and state the basis of the objection in his statement of defence and witness statement on oath. Finally, a defendant is to lay foundation, where required, in the statement of defence and witness statement on oath for the admissibility of the frontloaded documents.
Paragraph 3(3) of the Practice Direction prescribes the penalty for non-compliance with the provisions of the Practice Direction. In the first place, paragraph 3(a) provides that any process, which does not comply with the Practice Direction, shall not be accepted for filing. However, where the process is not rejected by the registry, paragraph 3(b) of the Practice Direction provides that the judge before whom the process is assigned for hearing shall treat the process as incompetent and shall strike out the entire suit if the affected process is the claimant’s statement of facts, reply to statement of defence and/or witness statement on oath. Where the affected process is that of the defendant, the judge is to strike out the process.
Clearly, the above provisions are aimed towards an efficient and effective administration of justice at the NICN. Where the Practice Direction is complied with, the time spent in adjudication of matters will greatly reduce. For instance, the practice of raising objection to the admissibility of a document at the point the document is being tendered contributes to delays in resolution of cases. So also, the current practice of a party examining one after the other all the documents sought to be tendered by the opposing party with a view to determining whether the documents are the original or photocopies.
With the Practice Direction, the oral and often time-wasting objection to the admissibility of a document will become a thing of the past. The judge will be saved from the long hand recording of a party’s objection to the admissibility of a document and the response thereto. Further, the Practice Direction makes it possible for a party to know beforehand whether the original of a document will be available at the trial, so that at the trial, the party only needs to confirm that the other party brought the original of the document earlier identified; and will not have to sieve through all the documents being tendered.
The Practice Direction equally makes the work of the Court easier in the sense that the Court knows the relevant part, paragraph(s) and page(s) of a document tendered by a party. This does not in any way take away the obligation of the judge to read all the documents presented by the parties. However, the parties complying with the Practice Direction will simply direct the judge’s attention to the more important and relevant part of the documents tendered by the parties.
Regarding the place of filing an action in trade union matters, it is to be noted that most national delegates’ conference of trade unions is held in Abuja or Lagos. It is therefore fitting that matters relating to such conference are filed either in Abuja or Lagos Judicial Division of the Court. In this sense, the Practice Direction serves to prevent forum shopping and multiplicity of actions pending on the same subject in different judicial divisions of the Court. By streamlining the judicial division to entertain matters seeking to restrain the holding of national delegates’ conference or relating to trade union elections, the Practice Direction has the effect of reducing conflicting orders of the Court emanating from various judicial divisions.
In all, the Practice Direction is commendable and appears to be well thought out. Prima facie, it was issued with the best of intentions to possibly ensure speedy and efficient administration of justice. However, the lofty and well-intentioned aspirations of the Practice Direction are not saved from the scrutiny of legality and critical examination. In a democratic society like ours, laws must not only be well intentioned but must also pass the test of legality as laid down in relevant legislation and case law. At the same time, a law must not also be draconian no matter what it seeks to achieve. These democratic principles underscore the subsequent paragraphs of this work.
The conflict between the Practice Direction and relevant laws
We take the view that paragraph 3(1) of the Practice Direction – regarding the place of filing an action that seeks to restrain the holding of delegates’ conference of a trade union or that relates to the conduct of trade union elections – conflicts with the NICN Rules. Precisely, Order 2 Rules 1 – 17 of the NICN Rules contain elaborate provisions concerning the institution of an action at the Court. Remarkably, Order 2 Rule 1 (1) of the NICN Rules provides as follows: “Subject to the provisions of the Act on transfer of suits, an originating process in respect of a matter in which the Court has jurisdiction shall be filed in any Registry of the Court nearest to where the defendant or respondent resides or has presence or in which the defendant or respondent carries on business. Provided that where economic, security, environmental or other exigencies warrant, an originating process may be filed in the Court’s Registry in a Judicial Division other than that closest to the place of residence or business of the defendant(s) or respondent(s).”
From the foregoing provision, it is clear that an originating process – including a process that seeks to restrain the holding of delegates’ conference of a trade union or that relates to the conduct of trade union elections – may be filed in any judicial division of the Court provided that the defendant or respondent resides, carries on business or has presence in that judicial division or the judicial division is closest to where the defendant or respondent resides, has presence, or carries on business. In other words, a trade union action which seeks to restrain the holding of a national delegates’ conference, or which relates to the conduct of a trade union action may be filed in any of the judicial divisions of the Court where a trade union has presence.
The implication, therefore, is that paragraph 3(1) of the Practice Direction, which provides that originating processes, applications or motions that seek to restrain the holding of delegates’ conference of a trade union or that relate to the conduct of trade union elections must be filed either in the Abuja or Lagos Judicial Division of the Court, conflicts with the clear provision of Order 2 Rule 1(1) of the NICN Rules. Interestingly, in the opening line of paragraph 3 of the Practice Direction, the President of the NICN decreed as follows “From the date of this Practice Direction and notwithstanding any provisions in the National Industrial Court of Nigeria (Civil Procedure) Rules 2017…” (emphasis supplied). Clearly, the Practice Direction was fashioned to operate notwithstanding the provisions of the NICN Rules. The question therefore is this: can the Practice Direction properly operate regardless of the provisions of the NICN Rules to the contrary?
To answer the above question, it is imperative to understand the meaning, nature, and operation of a practice direction. Without a doubt, a practice direction is a written explanation or guideline by a court on how to proceed in a particular area of law. It usually states how a particular rule of court should be complied with or observed. To be valid and effective, a practice direction must be issued by the appropriate authority. In Nigeria, the Constitution empowers the various heads of court to make rules regulating the practice and procedure of the court in question. In this regard, Section 254F of the Constitution provides that the President of the NICN may make rules for regulating the practice and procedure of the NICN. That is, the President of the NICN is the appropriate authority to issue both the Rules of the Court (the NICN Rules) and the Practice Direction under consideration.
Although the power to issue the rules of court and a practice direction usually resides in the same person or authority, there is a distinction between both. In the hierarchy of laws in Nigeria, the rules of court rank over and above practice directions and take precedence over any such directions. In University of Lagos & Anor. v Aigoro (1984) 1 NWLR (Pt. 1) 143, the Supreme Court noted that practice directions “do not have the authority of rules of court although they are instructions in aid of the practice in court”. Citing the foregoing decision of the Supreme Court, the Court of Appeal in Haruna v Modibbo (2004) 16 NWLR (Pt. 900) 487 concluded that practice directions are less efficacious than rules of court and can neither overrule the rules of court nor judicial decisions.
Consequently, where there exists any conflict between the rules of court and a practice direction, the rules of court must prevail. That is, the practice direction must give way to the operation of the rules. In Adams v Umar (2009) 5 NWLR (Pt. 1133) 41, the court made the point as follows: “It needs to be said that as useful as they are, Practice Directions do not have the force of law and cannot fetter a rule of court. In other words, where there is a conflict between a rule of court and practice direction, the rule of court must prevail…Where there is no such conflict, they work as tag-team partners to serve the ends of justice.”
The implication of the foregoing pronouncement is that the Practice issued by the President of the NICN cannot take precedence over the NICN Rules. Because of this, the Practice Direction cannot override the NICN Rules and must give way for the smooth operations of the NICN Rules. The express words in the Practice Direction to the contrary (notwithstanding any provisions in the NIC (Civil Procedure) Rules 2017…) does not in any way advance the cause of the Practice Direction. The conclusion therefore is that trade union actions relating to delegates’ conference, or any trade union action that concern the conduct of trade union elections can be filed anywhere in Nigeria as stipulated in the NICN Rules 2017.
In any event, the Constitution established the NICN to exercise territorial jurisdiction over the entire Nigeria. That is, the jurisdiction of the NICN covers the entire 36 States in Nigeria and the Federal Capital territory, Abuja. The judicial divisions of the Court are for administrative convenience only. Further, the National Industrial Court Act 2006 in its Section 21 (1) provides that the Court shall have and exercise jurisdiction throughout the Federation and the whole area shall be divided by the President of the Court into judicial divisions. The Practice Direction cannot therefore take away the territorial jurisdiction of the Court sitting in divisions other than Lagos and Abuja on any trade union matter. In Ugo v Ummuna (2018) 2 NWLR (Pt. 1602) 102 the Court made the point that “Practice Directions derive their existence from the principal enactments and must be in conformity therewith”. In this case, the Practice Direction derives its existence from the Constitution and the National Industrial Court Act. Paragraph 3 (1) of the Practice Direction not being in conformity with the Constitution and the National Industrial Court Act is null and void and of no effect whatsoever.
Besides the above, the said provision of the Practice Direction is practically problematic. For instance, trade unions usually schedule their national delegates’ conferences in various states in Nigeria. Such conferences and elections of trade unions are not always held in the Federal Capital Territory, Abuja or Lagos State. In this sense, the restriction introduced by the Practice Direction on the filing of such action in Abuja or Lagos may be out of place. Where a trade union for example decides to hold its election or national delegates’ conference in Rivers State, it may appear more convenient to file an action relating to the national delegates’ conference or the election in Rivers State, that is the Port Harcourt Judicial Division of the Court rather than file the action in Lagos State or Federal Capital Territory, Abuja, especially where in terms of Order 2 Rule 1 (1) of the NICN Rules, the defendant or respondent resides or has presence in Rivers State or carries on business in the State.
Again, the Practice Direction did not draw any distinction between chapter elections of trade unions, state elections of trade unions and national elections of trade unions. A literal interpretation of the Practice Direction will appear to accommodate every election of a trade union whether chapter, state or national. That is, an action relating to a chapter, state and national elections of trade union are to be filed in Abuja or Lagos Judicial Division of the Court. In this sense, it is difficult to imagine how an action relating to a trade union chapter election or state election, for instance, in Sokoto State or Imo State, should be filed in Abuja or Lagos Judicial Division of the Court.
Be that as it may, we take the view that paragraph 3(1) of the Practice Direction – on filing of processes that seeks to restrain the holding of delegates’ conference of a trade union or that relate to the conduct of trade union elections – conflicts with the Constitution, the National Industrial Court Act and the NICN Rules. To the extent of this inconsistency, the Practice Direction cannot rightly be enforced by the NICN. It will therefore be wrong for the appropriate NICN registry in terms of Order 2 Rule 1 (1) of the NICN Rules to reject such an action on the basis of the Practice Direction. Similarly, it will amount to judicial abdication of duty for a Judge of the Court to strike out a matter within its jurisdiction based on the dictates of a Practice Direction that conflicts with the NICN Rules, the National Industrial Court Act and the Constitution.
The penalty provision of the Practice Direction – using a sledgehammer to crack a nut
As earlier noted, paragraph 3(3) of the Practice Direction regulates the consequences of non-compliance. Specifically, paragraph 3(3)(i) of the Practice Direction provides that any process that does not comply with the Practice Direction shall be rejected by the registry of the Court. This provision is not much of a problem. The issue lies with what happens where the registry (whether by act or omission) accepts the process for filing. In this regard, paragraph 3(3)(1) of the Practice Direction provides that the process shall be adjudged incompetent by the court and shall, in the case of the claimant, strike out the entire suit or in the case of the defendant strike out the defendant’s process in question.
To understand the gravity of the penalty provision, it is important to outline what constitutes non-compliance with the Practice Direction. A review of the Practice Direction confirms that each of the following constitutes non-compliance with the Practice Direction:
On the part of the claimant: 1. The filing of an action or application that seeks to restrain the holding of a national delegates’ conference or that relate to the conduct of trade union election in a judicial division other than the Abuja or Lagos judicial division of the Court. 2. Failure of the claimant to identify the processes he intends to rely on in his statement of facts and witness statement on oath. 3. Failure of the claimant to attach and frontload the processes he intends to rely on at the trial.
4.Failure of the claimant to mark all the documents serially. 5. Failure of the claimant to identify and mark the portions, paragraphs, pages or parts of the documents to be relied on. 6. Failure of the claimant to state whether the original of a document will be available at the trial. 7. Failure of the claimant to lay foundation, where required, for the admissibility of the frontloaded documents in the statement of facts and witness statement on oath 8. Failure of the claimant to indicate that he intends to object to any document referred to in the defendant’s statement of defence. 9. Failure of the claimant to indicate and state the basis of his objection in the reply to the statement of defence as well as the witness statement on oath.
On the part of the defendant: 1. Failure of the defendant to attach and frontload all the processes he intends to rely on at the trial. 2. Failure of the defendant to identify and mark the portions, paragraphs, pages or parts of the documents to be relied on. 3. Failure of the defendant to state whether the original of a document will be available at the trial. 4. Failure of the defendant to lay foundation, where required, for the admissibility of the frontloaded documents in the statement of defence and witness statement on oath 5. Failure of the defendant to indicate that he intends to object to any document referred to in the claimant’s statement of claim. 6. Failure of the defendant to indicate and state the basis of his objection in the reply to the statement of defence as well as the witness statement on oath.
By the Practice Direction, numbers 1 – 9 above are penalised by an order striking out of the entire suit while numbers 10 – 15 attract an order striking out the processes, namely the statement of defence and witness statement on oath filed by the defendant. We shall comment on these possible non-compliances that may be recorded with a view to showing that the penalty provisions of the Practice Direction are draconian and have the capacity to undermine the administration of justice at the NICN.
Number 1 relates exclusively to the venue of an action. Besides the point that the provision is null and void by being inconsistent with the NICN Rules, the National Industrial Court Act and the Constitution, we note that the consequences of filing an action in a wrong judicial division or venue does not attract an order striking out the suit. Basically, as far as the Practice Direction is concerned, any judicial division of the Court other than the Abuja or Lagos Judicial Divisions is a wrong venue or division to commence an action or to file an application that seeks to restrain the holding of a national delegates’ conference or that relate to a trade union election. The law is that filing an action in a wrong judicial division has nothing to do with the jurisdiction of the court over the matter. In other words, the court cannot properly strike out a matter because the matter was filed in a wrong judicial division.
The proper order may be one transferring the suit to the appropriate judicial division. In this regard, the penalty for non-compliance prescribed in the Practice Direction is out of sync with the established position of the law. The NICN Rules made provisions for dealing with actions filed in a wrong judicial division. We take the view that the provisions in the NICN Rules regarding commencing an action in a wrong judicial division will better serve the ends of justice. To this end, the Practice Direction which seeks to defeat an action filed in a “wrong” judicial division has the effect of undermining the rule of law and administration of justice.
Number 2 relates to failure of the claimant to identify all the processes he intends to rely on at the trial in his statement of facts and witness statement on oath. The penalty which is the striking out of the entire suit appears draconian and unfathomable. One would have thought that the proper penalty for non-compliance would be for the court to ignore the documents not identified in the statement of facts and witness statement on oath. Notably, it is at the point of tendering the documents that the court or the opposing party will know that the claimant is seeking to introduce documents not identified in the statement of facts and witness statement on oath.
At that stage of proceedings, it will be strange for the court to strike out the entire suit upon the discovery that not all documents sought to be tendered by the claimant were identified in his pleading. Such striking out order by a court can only be the opposite of justice. It is therefore suggested that a court faced with the claimant seeking to introduce more documents than identified in the pleading may ignore the offending documents. Again, at the point of commencing an action, a claimant may not be able to identify all the relevant documents in his pleading.
This identification may be done by way of an amendment. That is, a claimant still retains the right to amend his pleadings and identify further documents to be relied on. This is consistent with the principle of fair hearing enshrined in the Constitution. The point therefore is that the failure of a claimant to identify all the documents he intends to rely on in the statement of facts and witness statement on oath cannot rightly attract an order striking out the claimant’s suit
Number 3 relates to failure of the claimant to attach and frontload all the documents he intends to rely on at the trial. Such failure cannot in all fairness attract the striking out of the claimant’s suit. This is especially so when a failure to attach and frontload a document may be caused by various reasons ranging from the unavailability of the document at the time of filing to innocent omission on the part of the claimant’s counsel or his support staff. It will be unjust to visit a claimant with an order striking out his entire suit for failure to attach and frontload all the documents referenced in his pleading.
A fair position would be for the court to discountenance the documents not attached and frontloaded. A fairer position would be for the court to entertain and grant an application seeking to attach and frontload documents omitted during the filing of the suit for one reason or another. In any event, judicial decisions such as Ribadu v Doma & Ors (2020) LPELR-51378(CA); Olaniyan & Ors v Oyewole & Ors (2007) LPELR-8694(CA) are to the effect that failure to frontload documents referred to in an action does not vitiate the action. Indeed, in Ribadu v Doma & Ors (supra), the Court noted that documents not frontloaded may still be tendered in court with or without objection.
Number 4 concerns failure of the claimant to mark the documents serially as documents are marked in originating summons. This failure, again, cannot properly be punished with an order striking the claimant’s suit. At best, the unmarked document should be discountenanced by the court as having been abandoned by the claimant. There should be an opportunity for a claimant who omitted to mark a document to mark the said document. It will be fair and just practice for a court to entertain and grant an application, whether oral or written, seeking to mark a document not marked in accordance with the Practice Direction. Nothing stops the court from, suo motu, directing a claimant to mark his documents accordingly.
Number 5 concerns failure of the claimant to identify and mark the portion(s), page(s), paragraph(s) or part(s) of the document(s) to be relied on. Again, it will be most unjust to strike out a claimant’s case for failure to identify a portion of a document sought to be relied on at the trial. Indeed, where a claimant fails to make such identification, it should be presumed that the claimant is relying on the entire document(s). Where such presumption cannot reasonably be made, it would still be unfair to strike out the entire suit. Treating the affected document as having been abandoned may better serve the ends of justice.
Number 6 concerns failure of the claimant to state whether the original of a document will be available at the trial. The availability or unavailability of the original document at the trial goes to the issue of admissibility or otherwise of a document in court. The issue of admissibility or otherwise of a document has absolutely nothing to do with the entire case filed by a claimant. Admissibility of a document should therefore not influence a court to strike out a case.
Be that as it may, we note that it is not entirely within the powers of a claimant to know whether the original of a document will be available at the trial. Instances abound where a claimant may later discover the original of a document after the filing of a case. In such an instance, we submit that nothing prevents the claimant who had earlier stated that the original of a document will not be available at the trial to produce the original of the document where the claimant finds the original after the filing of the action. Conversely, where a claimant at the time of filing an action stated that the original will be available, but the original is lost or destroyed before it is tendered at the trial, we submit that nothing prevents the claimant from explaining the loss of the original to the court, preferably in an affidavit or a further witness statement on oath, and then relying on a photocopy of the document.
Number 7 deals with failure of the claimant to lay foundation, where required, for the admissibility of the frontloaded documents in the statement of facts and witness statement on oath. As earlier noted, the admissibility or otherwise of a document has nothing to do with the entire case filed by a claimant. A claimant who fails to lay foundation in his statement of facts and witness statement on oath regarding the admissibility of a document may properly be punished by the rejection of the document in question by the court. Punishing the claimant with an order striking out the entire suit for such inconsequential infraction will only amount to doing the bidding of injustice in the temple of justice. Surely, by the Practice Direction, the era of laying foundation orally for the admissibility of a document may be gone since an attempt by a claimant to lay an oral foundation in open court may expose the claimant to the absurd – the striking out of his entire suit. This absurdity is clearly undesirable and unacceptable.
Numbers 8 and 9 deal with failure of the claimant to indicate that he intends to object to any document referred to in the defendant’s statement of defence and state the basis of the objection both in his reply to the statement of defence and witness statement on oath. The penalty for this non-compliance which is striking out of the claimant’s suit is strange and totally incomprehensible. Notably, this non-compliance can only be visible where the claimant objects to the admissibility of a document sought to be tendered by the defendant at the trial.
To be graphic, where a claimant raises an oral objection to the admissibility of a document sought to be tendered by the defendant; and the court looks through the reply to the statement of defence and confirms that the objection was neither indicated nor the basis of the objection stated; by the Practice Direction, the court is to, there and then, strike out the entire suit for non-compliance of the reply to the statement of defence with the dictates of the Practice Direction. What a travesty. Such an action on the part of a judge can only enthrone injustice and suffocate the administration of justice.
To be sure, a defect in a reply to a statement of defence cannot form the basis of striking out a claimant’s suit. After all, a claimant is not under any obligation to file a reply to a statement of defence. Indeed, a claimant may decide not to file any reply to the statement of defence where he considers that the statement of defence is not deserving of any response. It is safer and more just to suggest that a claimant who fails to indicate and state the basis of his objection in his reply to the statement of defence may lose the right to raise such objection at the trial.
The problem arises where a claimant does not intend to file a reply to the statement of defence but intends to object to the admissibility of the defendant’s document(s). It would seem that by the Practice Direction, a claimant wishing to object to the admissibility of a document frontloaded by the defendant must necessarily file at least a reply to the statement of defence wherein he will indicate and state the basis of his objection.
We say that such a claimant must file at least a reply to the statement of defence because the idea behind stating the basis of one’s objection in a statement on oath is not entirely clear. A witness statement on oath should ordinarily contain facts not law. Arguing the admissibility of a document in a witness statement on oath may be very strange and unacceptable.
A witness who is not a legal practitioner may not be able to answer any question relating to any argument on the admissibility of a document which the Practice Direction requires to be contained in a witness statement on oath. To fully satisfy the Practice Direction, there may be a need for a separate deposition by a legal practitioner where the basis of an objection relating to the admissibility of a document may be stated. But this may be going too far and unnecessary.
It is therefore submitted that stating the basis of an objection in a reply to a statement of defence suffices. However, any omission to indicate and state the basis of the objection in the reply to the statement of defence cannot justify an order striking out the entire suit.
Regarding numbers 10 – 15, which relates to striking out the defendant’s processes for non-compliance, we take the view that all the arguments made in the preceding paragraphs are relevant and are hereby adopted.
In sum, we take the strong view that failure to adhere to the Practice Direction as it concerns a document should not affect the entire case or the processes filed. Remarkably, the offending document may even be inconsequential to the case such that the document may absolutely make no difference to the judgment of the court.
That is, the presence or absence of the offending document may not affect the outcome of the case. The question therefore is: why strike out a suit or a process by reason of the fact that a document sought to be used as evidence does not comply with the Practice Direction? A case may be proved by oral evidence alone without the need for documentary evidence. The fate of a case should therefore not be tied to any document sought to be used to prove it.
Further, it is not clear what happens where there is a case of partial non-compliance with the Practice Direction. Notably, the requirements of the Practice Direction, as they relate to the claimant, are to be carried out in the statement of facts and witness statement on oath. Similarly, a defendant is to comply with the dictates of the Practice Direction in his statement of defence and witness statement on oath.
So, what happens where, for instance, a claimant carries out the requirements of the Practice Direction in the statement of facts but not in the witness statement oath? This will clearly be a case of partial non-compliance (or partial compliance) with the Practice Direction.
Will such partial non-compliance be treated as non-compliance at all? Considering the egregious penalty provision in the Practice Direction, a better view may be to treat any partial non-compliance as compliance or substantial compliance with the Practice Direction. The opposite view will seriously undermine the administration and course of justice.
In the final analysis, we take the firm view that the penalty provisions are draconian and unacceptable as they have strong potential to undermine the administration justice at the NICN.
Final words – adjudicating the Practice Direction
As already noted, Practice 3(1) of the Practice Direction, on the place of filing of an action, conflicts with the NICN Rules, the National Industrial Court Act, and the Constitution. The provision is therefore null and void and of no effect whatsoever. Regarding the marking of documents and exhibits, issues of non-compliance with the Practice Direction are bound to arise for adjudication. In this regard, certain established principles regarding practice directions are explored with the hope that the principles will guide the Court when deciding issues arising from non-compliance with the Practice Direction.
The first is that a practice direction must be aimed at ensuring justice and where it will lead to injustice or absurdity, a court is required by law to reject the practice direction. In Haruna v Moddibo (supra), the Court of Appeal in discussing the position of the rules of court and practice direction in Nigerian legal system made the point as follows: “The two (Rules of Court and Practice Direction”) are there for no other purpose but for ensuring that justice is obtained by parties in the citadel of justice. Where the two of them or either of them will lead to injustice a court of law which is as well a court of justice must be too ready to jettison them for dispensing justice.”
It is clear from the foregoing, that any practice direction, the application of which will lead to injustice, is not acceptable in Nigeria. In this regard, it is submitted that the application of the penalty provisions of the Practice Direction in a case will surely lead to injustice. It is expected that the Judges of the NICN should not hesitate to jettison the Practice Direction in deserving cases especially where a party seeks to take an undue advantage of his adversary. The Court is encouraged to devise more creative and pragmatic ways to ensure compliance of the parties with the Practice Direction. Using a sledgehammer to crack the nut, as the letters of the Practice Direction suggest, will surely lead to manifest absurdities and injustice.
Secondly, a practice direction cannot tamper with the discretion of a court of law. In Ikem v Aisowieren (2010) 1 NWLR (Pt. 1174) 147 at pp. 171-172, paras. H-A, the Court of Appeal put it this way, “it is an established principle of law that a Practice Direction cannot remove the exercise of the court’s discretion granted to them by statute…” In other words, the penalty provisions of the Practice Direction do not in any way take away the discretionary powers of the judges of the Court. A judicial and judicial exercise of discretion will not support a wanton order of court striking out a suit for any of the infractions or non-compliance with the Practice Direction.
Finally, it must be pointed out that a Judge of the NICN may not raise the issue addressed in the Practice Direction suo motu and proceed to decide the point without inviting the parties to address the court on the issue. This point was made in the case of Obumseli v Uwakwe (2009) 8 NWLR (Pt. 1142) 55. In that case, a practice direction was issued by the Chief Judge of Anambra State on certain issues relating to demurrer. Notably, the practice direction of the Chief Judge of Anambra State required that non-compliance with the practice direction shall be met with a rejection of the process by the court registry or, where accepted for filing, an order of the trial court striking out the process suo motu.
In furtherance of this Practice Direction, a High Court Judge sitting at Onitsha Judicial Division of the High Court of Anambra State suo motu dismissed an application pending before the court. On appeal, the issue was whether the trial Court was right to have raised the incompetence of the application suo motu and dismissed same under the provisions of the practice direction without affording the parties opportunity to address the court on it. In answer to this issue, the Court of Appeal found as follows at p.76 paragraphs A – E of the report: “If a court raised an issue suo motu it has removed itself from its exalted position to flirt with the parties and in the course get itself soiled in the litigation…. Though the court has jurisdiction to raise an issue suo motu as I said above, it has no jurisdiction to resolve the issue suo motu. The court must give an opportunity to the parties to react to the issue by way of address. On no account should a court of law raise an issue suo motu and resolve it suo motu as in this case. That is unjust and a party aggrieved has the right to complain in the way the appellants have complained in this court…. On no account should a court of law raise a point suo motu, no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties. If it does so, it will be in breach of the parties’ right to fair hearing”
From the foregoing, it is clear that the Judges of the NICN cannot properly raise suo motu and decide issues presented by the Practice Direction without affording the parties an opportunity to be heard. Affording the parties opportunity to address the court will give room for the affected party to persuade the court to exercise its discretion against the dictate of the Practice Direction, particularly its penalty provisions for non-compliance.
Ozuo is the founder of VS Law Firm and is based in Port Harcourt, Rivers State.
