An overview of proposed National Industrial Court of Nigeria (Civil Procedure) Rules 2015
Order 21 is an interesting provision. This provision is of more than a passing interest, and it is apposite to explain. It makes allowance for certain applications requiring urgent hearing/relief to be filed at the registry of the court, accompanied by an affidavit and SERVED ON THE OTHER PARTY.
It is not exactly clear ifthis provision is of much relevance in its stated intent, or scope of application. One: applications requiring urgent hearing are almost invariably such that the applicant cannot indulge in the luxury of service on the adverse party. They are mostly ex parte applications for injunctive orders. As for other forms of interlocutory applications that are prescribed to be made on notice to the other side, there are sufficient provisions in the rules (for example, O.17 on ‘Motions and other Interlocutory Applications’, O.18 on ‘Determination of Motions’O. 22 on ‘Interlocutory Injunctions’)prescribing minute details such as the way, manner, form and substance of such applications; the hearing (including order of hearing of preliminary objections as to jurisdiction vis-à-vis other applications before the court. O.18); and sundry matters.
Holding practitioners personally liable for unnecessary court costs
The proposed Rules not only expect parties to behave responsibly, but also –and, this is the first time such a provision will appear in the Rules- now make practitioners personally liable when it provides in O. 55 r. 6(2) that Counsel is to bear the costs arising from his own default or negligent act. There is an appropriate sanction for failure to pay cost awarded: the defaulting Counsel is denied (further) right of audience.
‘Time is always running’
A more nuanced expression aimed at seeking an expeditious determination of matters before the Court can be found in the provision of the proposed rules that the time for filing and service of processes or taking any step required by the rules shall continue to run notwithstanding that the time falls within the court’s annual vacation, Easter or Christmas recess (O.58 r.6 &7).
It is safe to conclude again referencing the jurisprudential leaning of the Rules. It is important that practitioners understand the full implications of the set objectives of the Rules stipulating ‘quick, just, fair and efficient fast track case management system of all matters within the jurisdiction of the Court’. To achieve the ethos, the Court may want to consider imposing a stricter approach on latitudes with compliance with the provisions of the rules.
Take, for instance, the Rules of the High Court of Lagos State. By virtue of Order 5 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012, a claimant, who does not comply with the frontloading requirement in Order 3 of the self-same Rules, is visited with consequences ordained therein, namely the nullification of the proceedings. The severe penal measure has largely ensured compliance as many a case has had to be struck out of the court’s docket list for non-compliance with the aforesaid provision. There is a regime of compliance in place which guarantees that court processes and proceedings are treated with the seriousness which they deserve; at the pain of stiff sanctions, namely nullification of proceedings. Can the NICN incorporate a similar provision in its soon to be enacted Rules?
While the reasoning to give precedence to substantial justice over technical cannot be faulted, it however tends towards levity in commencing an action at the NICN, where it is apparent that even in commencing an action, any defect in proceedings will be treated as a nullity.
The case for this is even more compelling when viewed against the provisions of the Rules that make a practitioner liable for personal default in the conduct of proceedings. In introducing a similar sanction as in Order 5 of the Lagos Rules, such provision as found in the proposed NICN Rules; rendering practitioners and not the litigants liable for their own default, can merely be expanded to provide that a practitioner may be liable for the cost of commencing the new proceedings, where the default in commencement was that of the practitioner to begin with.
On the whole, the NICN Rules are seemingly well intentioned, and, for the most part, well crafted. In particular, there is coherence which may just guarantee the predictability of culture which the Rules so clearly seek to inculcate in litigants and Counsel.
• Kuti is a partner in the law offices of Perchstone & Graeys
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