Ganiyu Ajibola Bello. Esq.*
The president of the National Industrial Court of Nigeria (NICN), Hon. Justice B.B. Kanyip Ph.D on the 31st of May 2022 issued the National Industrial Court of Nigeria Practice Direction 2022 (Practice Direction) with same taking effect on the 13th of June 2022.
The said Practice Direction was made to set out guidelines for two things i.e. i, the filing of applications and motions in trade union matters and ii, the marking of documents/exhibits. It should be stated at this juncture that the instant call for review of the said Practice Direction is with regards to the provisions covering the second purpose of the Practice Direction.
It is also instructive to state that the legitimacy of the practice direction in question is not in doubt as the President of the NICN is empowered by the provision of section 254F of the Constitution of the Federal Republic of Nigeria to make rules for the practice and procedure of the NICN and it is pursuant to the said provision of the Constitution; section 36 of the National Industrial Court of Nigeria Act, 2006 and Order 1 Rule 8(3) of the National Industrial Court Civil Procedure Rules 2017 that the President of the NICN made the instant Practice Direction. Although the President is not a law maker, such capacity to make the rules of practice and procedure of the court comes within the realm of what is known as delegated legislation which is a concept that serves as an exception to the principle of separation of power.
The laws made from such delegated legislation are termed subsidiary laws and the main background to delegated legislation is as a result of the fact that Legislatures cannot possibly enact all the laws needed in the society while the exigencies of events may require a law to be timeously made with certain expertise and use of experience in the area which the law covers.
It is pursuant to such expertise and experience that the President of the NICN has made the NICN (Civil Procedure) Rules, 2017 and subsequent to which the instant Practice Direction was made. It must also be noted that the Practice Direction, just as much as the Rules, was made with the intention of guaranteeing access to justice and expeditious disposal of cases. See Rule 2. However, the provisions requiring the marking of exhibits seem to have brought with it some technicalities which can be counterproductive and end up being a stumbling block on the path of substantial justice thereby failing to reflect the true intention.
The Good part of the Practice Direction:
By way of highlight, Rule 3 (2) (a), (b), (c), (d), (e), (f), (h), (i) and (j) of the NICN Practice Direction, 2022 has the combined effect of now requiring parties to indicate the documents to be relied upon by having the said documents serially marked in the same way documents are marked when annexed to an affidavit in support of an originating summons. In this instance however, the marking must be done both in the statement of fact or statement of defence or reply and also the witness statements on oath filed by either the Claimant or Defendant as the case may be. The rules also require the specific page/part/paragraph of the pleaded document to be marked. This is perhaps to make it easy for the other party and the judge to easily discern the specific part of the document that is relevant and to eliminate dumping.
In addition, the party pleading the document, particularly the Claimant must also state whether the original of the document will be available or produced during trial and where such document is not the original in which case it would require laying foundation for same to be tendered, the said foundation should be stated in the pleadings i.e. statement of fact and witness statement on oath.
The foregoing requirements are quite practicable and they are understandably needed for efficient trial management so as to eliminate the wastage of precious judicial time in dealing with frivolous objections or the waste of time in going through a pile of documents that are irrelevant and have no impact on the fact(s) in issue.
The Bad and Ugly Part of the Practice Direction:
The Practice Direction however took the scope of the regulation of pleadings farther than the law allows in view of the provisions in Rule 3 (2) (g) and (k) which provides thus:
(g) Where a defendant intends to object to the admissibility of a document to be tendered by a claimant, such objection must be clearly indicated in the statement of defence and witness statement on oath, and state the basis of the objection.
(k) A claimant who intends to object to the admissibility of a document to be tendered by a defendant at a trial must indicate so in the reply to the statement of defence and must state the basis of his objection in the statement of defence and witness statement on oath.
Upon a consideration of the foregoing provisions, it is clear that the practice direction now requires litigants to raise and argue an objection to the admissibility of a document via, not just the statement of defence and reply, but also via the witness statement on oath which has same status as an affidavit and which the form is already regulated by the Evidence Act, 2011 by restricting the content. In other words, the provision of Rule 3(2) (g) and (k) are inconsistent with and contradictory to the provision of section 115 of the Evidence Act, 2011 which stipulates to the effect that an affidavit shall not contain extraneous matters by way of objection, prayer or legal argument or conclusion.
For ease of reference, section 115 (1) and (2) of the Evidence Act 2011 stipulates thus:
(1) Every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2)An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
Bearing the foregoing in mind, it is crystal clear that the provision of the Practice Direction which is a subsidiary legislation (secondary law) requiring the raising of an objection and stating the basis of same via a witness statement on oath is ultra vires the provision of the Evidence Act, 2011which is a primary legislation. It is settled law that a subsidiary legislation derives its validity and authority from a substantive law and therefore has no capacity to extend or override such authority. See THE GOVERNOR OF OYO STATE & ORS. V. FOLAYAN (1995) LPELR-3179(SC).
In the light of the foregoing there may be an argument that the witness statement on oath is not an ‘affidavit’. In this regard, it must be emphasized that the witness statement on oath is the ‘affidavit used in the court’ as envisaged by the opening paragraph of section 115 (1) of the Evidence Act. This means that a witness statement on oath must comply with all the requirement for an affidavit as stipulated in the Evidence Act including leaving out extraneous matters by way of objection and argument which the NICN Practice Direction, 2022 now makes mandatory to be included in the witness statement on oath.
In addition to the foregoing, it must be borne in mind that the statements deposed in a witness statement on oath are facts within the knowledge of either a litigant himself who intends to testify for himself or a witness to the litigant’s case while the raising of objection to the admissibility of a document is a function of a lawyer who knows and understands how to present such argument. To raise such objection and state the basis of same cannot be done efficiently by a litigant or the witness called.
Moreso, the NICN operates the practice of allowing arguments on the admissibility or otherwise of document to be presented in the final addresses so as to save the time of the court in delivering rulings on such objections mid-trial and also to avoid interlocutory appeals. See Order 15 Rule 4(1). Taking this practice into consideration, stating the basis of objection in the statement defence and reply therefore becomes superfluous and makes the practice and procedure more cumbersome not to mention the extension of the requirement to witness statement on oath which runs contrary to existing extant laws.
It is also to be noted that Section 12 (2)(b) of the National Industrial Court Act, 2006 and Order 1 Rule 9 (2) of the NICN (Civil Procedure) Rules as a general rule makes the court bound by the provisions of the Evidence Act but only allows a departure in the interest of justice. This presupposes that it is only when the interest of justice will be defeated that the Court should depart from applying the Evidence Act. Conversely in this instance however, the effect of Rule 3 (2) (g) and (k) is that the departure from the provision of the Evidence Act is being imposed and the consequence of failing to depart comes with a great penalty by way of striking out a party’s suit. This is certainly not what the NICN Act, 2006 intended.
With regards to the effect of non-compliance with the Practice Direction, it should be borne in mind that the Practice Direction is a derivative of the Rules of the NICN as Order 1 Rule 8 (3) vests the President with discretion to give practice direction for the effective implementation of the Rules. Therefore, the Practice Direction should align with the core values and objectives of the Rules one of which is to promote easy and speedy resolution of civil matters. It is in this light that the Court makes effort to eschew and discourage technicalities. However, making the compliance with the foregoing provision of rule 3(2) to be a basis for mandating judge of the court to strike out a suit for things that can be achieved through trial seem somewhat harsh and a harbinger of technicality through the backdoor. This is particularly in view of the fact that the Rules itself by Order 5 Rule 1 had earlier given the Court discretion to treat non-compliance with any of the rules as an irregularity following which the appropriate direction can be issued by the sitting judge.
Furthermore, Order 15 Rule 3 and 4 of the NICN (Civil Procedure) Rules 2017 has extant provisions in relation to correspondence between claimant and Defendant on schedule of documents for the indication of that which is intended to be objected to and how to express the ground of the objection along with the implication of not indicating an objection. The instant Practice Direction made no reference whatsoever to these provision of the Rules and same without a doubt brings about multiplicity of Rules without synchronization or harmony.
Suggested Way Forward:
Having manifested the unease and impracticalities which Rule 3(2) particularly (g) and (k) introduces, it is suggested that the Sub rules (g) and (k) be deleted in their entirety as they are incompatible with the provisions of the Evidence Act.
In addition, taking into account the fact that the Rules of the court has originally made provisions as to what a Claimant and the Defendant must file in terms of pleadings i.e. Order 3 Rule 10 in the case of a Claimant and Order 15 Rule 1 in the case of a Defendant, the Practice Direction can elaborate on the content of the schedule of documents stated in Order 3 Rule 10 (c) (iii). The said elaboration could require the Claimant to “in relation to the documents marked serially in the statement of fact, make a table with rows and columns indicating which document the original is intended to be tendered and that which it is the secondary copy that is intended to be tendered. And where a document to be tendered is a secondary copy, the foundation or basis for intending to tender the secondary copy should be stated in another column”. What this implies is that the schedule of document to accompany the Complaint and statement of fact can neatly and conveniently produce the same effect of notifying the other party and the judge which of the frontloaded document is original/secondary and the basis for the secondary copy.
On the part of the Defendant, the list of documents mentioned in Order 15 Rule 1 (c) as part of the documents which the Defendant must file can be made elaborate to include “in relation to the documents marked serially in the statement of defence, make a table with rows and columns indicating which document the original is intended to be tendered and that which it is the secondary copy that is intended to be tendered. And where a document to be tendered is a secondary copy, the foundation or basis for intending to tender the secondary copy should be stated in another column”.
The list of documents should also have a separate table for “Schedule of Objected Documents from the Claimant’s List of Documents” which would contain rows and columns for the documents intended to be objected to and the basis for such objection in highlight.
On the part of the Claimant who may wish to file a reply, such Claimant can accompany the reply with a table of rows and columns indicating documents objected from the Defendant’s List of Documents with columns stating in highlight the basis for the objection.
The foregoing suggestion will eliminate the repetition of the facts in relation to the nature of documents and the ground and basis of objection in the pleadings which would ordinarily make the pleading untidy.
Should the elaborate provision on the schedule of documents be adopted, the sitting judge can after a review of the correspondence of the schedule of documents accordingly direct the parties to file a written address on the highlighted grounds of objection prior to commencement of trial or reserve the argument to when the final written address is filed. See the last proviso to Order 15 Rule 4 (1).
In the light of the words of Lord Denning that the draftsman conceives certainty, but he has brought forth obscurity and sometimes absurdity (The Discipline of Law, 1979), it is appraised that the absurdities brought forth by the NICN Practice Direction, 2022 is not intended. However, it is in hope that now that the absurdities have been brought to light, there shall be a review and rethink leading to a redraft of the said Directives to meet with settled legal principles and the original intent of the practice and procedure of the NICN which remains a specialized court and has been at the forefront of eliminating technicalities from court practice in Nigeria.
Ganiyu Ajibola Bello Esq. is a Legal Practitioner and Senior Partner at Law Corridor, Abuja.