– Abraham Aigba & Henry Madukolu
Covid-19 pandemic continues to disrupt traditional modes of doing things the world over; thereby bringing about a new normal. Following the need to adapt to the challenges posed by the pandemic and prevent a total shutdown of the nation’s administration of justice, the Nigerian judiciary has introduced a complementary procedural regime.
On May 7, 2020, the National Judicial Council (the NJC) released Guidelines for Court Sittings and Related Matters in the Covid-19 Period (the Guidelines). The Guidelines are intended to aid the various courts conduct proceedings remotely in order to meet the ends of justice, particularly with respect to time bound cases, matters not requiring oral evidence (except where those of extremely urgent nature)and matters ripe for judgment, whilst ensuring the safety of judicial officers and workers, legal practitioners, litigants and the general public.
However, the Guidelines do not stand alone and are not in any way meant to replace the Rules of Court or existing Practice Directions but to complement same. The Guidelines can also be modified by Heads of Court to fit the needs of particular courts. Whilst part one of this article looks at pertinent provisions of the Guidelines relating to remote sittings (or virtual sittings) and some issues that may arise therefrom, Part two will subsequently examine the provisions of the Guidelines relating to the conduct of physical court sittings.
Filing and Service of Court Processes
Filing of court processes is the life wire of litigation, without which a suit cannot be commenced or any application or response made thereto. While the Guidelines have not dispensed with the traditional hardcopy filing of processes, the Guidelines envisage that court processes, including Hearing Notices should only be filed traditionally “where there is no electronic filing system and pending the institution of such electronic filing system”. Hence, as much as it is practicable, filing of court processes are required to be done electronically using the Legal Mail, emails, WhatsApp enabled phone numbers amongst others.
To achieve the above, the Nigerian Bar Association is to liaise with Heads of Court for the publication of counsel directory which shall contain counsel’s addresses, emails and telephone numbers (including WhatsApp enabled telephone numbers) for service. Respective counsel are also required to indicate their email addresses (where counsel has no Legal Mail, any functioning email address will suffice) and WhatsApp enabled phone numbers on all filed processes.
Where for want of electronic filing system hardcopy of processes are to be filed, Item B of the Guidelines stipulate that such processes should be sanitized with alcohol-based hand sanitizer by dedicated court officials and be further subjected to a 96-hour quarantine period in a secured facility before the processes are processed. Parties are enjoined to monitor the process up to completion.
Upon filing of processes, the party filing is obligated to scan and send the filed processes in PDF form to the other party. The court reserves the right to direct parties to send the filed processes in PDF form to the court via email. By Item D.6 of the Guidelines, it shall be unprofessional and deserving of disciplinary proceedings for counsel to variously send different versions of the filed processes to the court and the other party.
Whilst these provisions are commendable and seem to take care of the potentiality of the spread of Covid-19, there is however the concern of the sustainability of the recommended/prescribed safety regime in all our courts, particularly regarding sanitizing hardcopy of processes to be filed. This is in light of the fact that the foregoing requires increased funding to all courts, whereas one constant complaint of the judiciary has been lack of adequate funds.
Moreover, to ensure the long term safety of hardcopy of processes, particularly in line with the provisions of Item D(a)(ii) of the Guidelines admonishing utmost care in handling these processes, it is important to avail the designated staff the relevant and necessary training to forestall the potential of a compromise of the nature, quality and substance of processes due to exposure to chemical/alcohol based sanitizers.
Content and Service of Hearing Notices
With respect to hearing notices for virtual proceedings, Item E.8 (a-c) of the Guidelines stipulates that the notices expressly state that hearing shall be virtual, indicate the time of hearing and relevant details (such as passwords, links, IDs, etc.) that would enable the parties join in the sitting as well as the details of the platform through which the court’s sitting would be streamed to the public.
The court shall also publish on a weekly basis, matters to be heard remotely and shall ensure a live streaming of all court remote sittings through whatever website or platform which shall be publicized in order to satisfy the constitutional requirement of public hearing of proceedings.
Apparently, this is quite laudable. Thus, to avoid any confusion on the part of counsel or the parties, there should be strict adherence to the weekly publication of the cause list. This will afford both counsel and the parties a window to resolve issues of omission of matters scheduled for a certain day during the week and misrepresentation as to the business of the day, amongst other associated issues.
E-Payment of Filing Fees
Under Item C of the Guidelines, while assessments of filing fees are still to be done by designated court officials, parties are to send electronic copies of their processes to the registry for assessment of fees payable. Upon payment of fees, evidence of payment shall be sent to court nominated officials.
It is the duty of the court to encourage electronic payment of filing fees as well as publish acceptable method of sending evidence of payment of filing fees.
The court shall hear remotely those matters which are time bound or urgent as may be determined by the head of that court in a list to be published to the judicial officers of that court, litigants and their counsel and to the general public. Only judgments, rulings, applications and other matters that do not require taking of evidence are to be heard remotely in the immediate, until proficiency is attained in remote court sittings, by which time evidence of witnesses may be taken virtually, save that extremely urgent and time bound matters which requires calling of witnesses may be heard remotely.
While conducting remote hearings, only judicial officers and security personnel shall be allowed into the courtroom except where the court grants leave for parties whose matter is being heard virtually to be in the courtroom. Virtual proceedings may also be conducted in Chambers with approval of the head of court.
In consideration of judges with time bound judgments and/or rulings to deliver but are isolated from the location of their courts due to government imposed lockdown, the Guidelines permits such judges to conduct virtual proceedings from their location and where impossible, deliver such judgment or ruling in the courtroom of any of the divisions of his court closest to him, upon obtaining a fiat from the head of his court.
Under Item E6 of the Guidelines, the courts shall ensure that the respective locations where the judicial officers and court officials are located are provided with fast-speed electronic internet, electronic devices like desktops, ‘collaborative platform’ such as MS365, Zoom, etc., and other ancillary equipment during the course of the hearing.
Here lies the major challenge this attempt (or rather a quest) to go virtual with court proceedings will face in Nigeria. Internet connectivity is a major challenge in Nigeria even in our big cities. Virtual proceedings may be made tedious and wearisome by this fact alone. A number of our High Courts are located in remote places, some counsel also reside in remote places with worsened connectivity. In other instances, an unprepared counsel may decide to be unscrupulous and feign poor connectivity thereby stalling proceedings.
Akin to the issue of connectivity is the restrictive capacity of some of the recommended/prescribed collaborative platforms. Thus, there may be situations where litigants and/or their counsel are unable to attend/participate in these proceedings owing to the collaborative platform reaching its capacity. Furthermore, electricity continues to be a major challenge in Nigeria.
Beside the hurdle of connectivity and electricity, there is also the aforementioned issue of funding or lack of adequate funding. The conduct of virtual proceedings comes with its additional cost. We hope that there will be increased budgeting for the judiciary by the different tiers of government to cater for the extra costs that are attendant with these innovations.
Meanwhile, we think that in the circumstance, it would be helpful to dispense with the need/requirement for the court to sit particularly with respect to innocuous and unchallenged applications. We think that it would make mockery of the intentions of the NJC where hearing of an application is stalled because counsel who is unopposed to an application is unable to connect with the court. In this light, we propose that applications properly filed and served on the adverse party, and to which application no opposition was filed (as contemplated by the relevant rules of court) should be heard and granted in Chambers without the necessity of the court ‘sitting’ or the presence of counsel or the parties. In this instance, the Court is only obligated to communicate its ruling/decision to the respective counsel. The underlining principle of the foregoing is akin to that behind Item G.2 of the Guidelines wherein the courts are encouraged to dispense with physical or remote court sittings for adoption of addresses proceedings, where the respective addresses have been filed and the relevant rules allow for the deeming of such addresses by the court.
Proceedings at Remote Sittings
The court shall be fully in control of proceedings notwithstanding that it is conducted remotely and the assistance of IT experts is employed. Proceedings of the court shall be recorded using the features of the collaborative platforms and the records shall be given to the parties upon application. This is without prejudice to any other means of recording a particular court may wish to deploy.
Although counsel may with leave of court record proceedings conducted remotely, as with physical court sittings, the records of the court is superior under the Guidelines. The Guidelines deem leave given to a party to record proceedings as leave given to all other parties in the proceeding to record same.
Interestingly, Item E (10)(h) makes it mandatory for counsel to be fully robed and address the court on his feet in virtual sittings except with leave of court.
While we appreciate the intention to make virtual sittings retain the seeming seriousness and sobriety of physical court sittings, we find this provision rather impracticable, particularly in light of the peculiarities of these gadgets driven proceedings/sittings. Usually, users of these collaborative platforms are required to take a rather defined physical position vis-à-vis their enabling gadgets throughout the session, because of the need to always remain visible to the participants. Moreover, many will adjudge Item E (10)(h) as a miss of a rare opportunity to jettison the vestiges and antique of the colonial legal system we inherited. Clearly, being fully robed have no practical effect have on the proceedings. It is hoped that courts would exercise their discretion in this regard in consideration of peculiar circumstances, for example – counsel marooned from their wigs as a result of the lockdown.