The National Industrial Court of Nigeria (NICN) is a specialised Court created by the Constitution of the Federal Republic of Nigeria 1999 (as amended) with the exclusive jurisdiction to hear and determine cases relating to employment. Unlike other courts, the NICN is one Court in Nigeria that has demonstrated the hunger of the Nigerian courts to depart from technicalities and allow the triumph of substantial justice. To achieve this, for instance, the NICN does not allow some technical rules of evidence like the one relating to inadmissibility of certain documents for failure to conform to form. The NICN is driven by high sense of justice. As a matter of fact, lawyers who do not appear at the NICN frequently are often made to realise that there is no room for entertaining technical arguments like the ones advanced in our regular courts.

We shall see below how a popular Senior Advocate of Nigeria and a well-known human rights activist, Mr. Femi Falana SAN, recently attempted to exercise his advocacy skills at the NICN by challenging one of the Court’s rule of procedure on the ground that the same offends the constitutionally guaranteed right to fair hearing. This was in the case of Kassem Tay v. Provita Vitaforce Foods Nigeria Ltd – Suit No: NICN/PHC/39/2019. One of the brightest legal minds of the NICN, Ogbuanya J., stood up to the task.

Kassem Tay v. Provita Vitaforce Foods

The Claimant sued the Defendant for the alleged wrongful termination of his employment. As usual, the Claimant commenced the action by a General Form of Complaint (“The Complaint”). The Complaint is similar to a Writ of Summons. On the face of the Complaint, the Defendant was commanded to enter appearance to the suit within 14 days. This is in line with the provisions of the Rules that govern the procedures for dealing with cases at the NICN – that is the National Industrial Court (Civil Procedure) Rules 2017 (“NICN Rules”). It is important to note that other courts like the High Court of Lagos State have their own Rules. In Lagos High Court, a defendant enjoys as much as 42 days to enter an appearance to a suit.

Upon being served with the Claimant’s suit, the Defendant entered an appearance in protest (i.e., Conditional Appearance) through its Solicitors; the law firm of Falana & Falana. The Lead Counsel, Mr Femi Falana SAN, on behalf of the Defendant, challenged the jurisdiction of the Court to entertain the case on the grounds that the 14 days period stated in the Complaint is contrary to the 30 days period stipulated by Section 99 of the Sheriffs and Civil Process Act (“SCPA”) and that this offends the Defendant’s right to fair hearing.

In effect, the Court was called upon to resolve the conflict between the provisions of the NICN Rules requiring a Defendant to a suit to enter appearance within 14 days as against the 30 days stipulated by Section 99 of the SCPA.

In a Ruling delivered on 9^th December, 2019, the Court took time to consider the arguments as well as all the authorities cited. On the contention that the NICN Rules must give way for the SCPA, the Court reasoned that clearly, Section 99 of the SCPA only moves to make general provisions to guide the courts in prescribing the period within which a defendant should be compelled to enter an appearance to a suit. The SCPA is an Act of the National Assembly. The NICN Rules is a subsidiary legislation which was made pursuant to another Act of the National Assembly, that is the National Industrial Act 2006, Section 36(1)(a) thereof. Thus, it is inapposite to insist that the NICN Rules must give way to the SCPA on the basis of superiority.

Ogbuanya, J. accordingly noted that the NICN being a specialised Court, operates with special procedures that would aid it in delivering its mandate. In his Lordship’s words:

It is noteworthy that a key idea of setting of specialised court is to cloak it with specialised procedures to fast track its proceedings to ensure the realisation of the very philosophy that enabled its creation. To my mind, the essence of specialised court would be defeated if the so called specialised court is still kept in and enmeshed in the shackles of old procedural rules which led to clamour for and creation of such court/tribunal. To say that a specialised court is subject to the general provisions of statute whereas it has its own specific provision on the subject matter would just amount to ‘making a distinction without a difference’.

On the contention that the 14 days prescribed by the NICN Rules violates the Defendant’s right to fair hearing, Ogbuanya, J. found this argument as completely baseless:

I find this averment as speculative and academic, as no material or factual explanation was averred to throw more light as to how such right of fair hearing was denied the Defendant. It did not show how the Rule has worked miscarriage of justice in a suit that has not even yet been tried. Paradoxically, the Defendant/Applicant who complained of 14 days rule within which to enter appearance and prefers 30 days has spent more than 30 days pursuing an argument to give it 30 days to appear. I find that the Rule regarding Appearance of Defendant invariably does not affect the Rule of Filing Defence and presenting Defence at trial. There are ample provisions in the extant Rules of this court for extension of time or even setting aside Judgment obtained in default of appearance or defence, which are available and aimed at ensuring fair hearing and hearing a matter on the merits. With these safeguards of fair hearing laced all over in the Rules, I find no supporting basis to yield to the call by the learned SAN to tilt-down the provisions of the Rules of this Court regarding 14 days requirement for a Defendant to enter Appearance upon service of originating court processes in a suit in this court. I so hold.

Conclusion

The Court is highly commended for the above Ruling and also for brilliantly distinguishing the cases (both relevant and irrelevant ones) cited by the Defendant. In guaranteeing the right to fair hearing, the Constitution never intended that the same must be used as a tool to obstruct the actual hearing and determination of a suit on the merits. It is expected that the Defendant, its Counsel and all should join the train of substantial justice by jettisoning arguments such as the one in the instant case which does not aid the cause of justice in any way.