ISE-OLUWA IGE reporting
As technology gradually permeates the legal industry, many countries of the world are gradually moving away from the traditional physical court hearings to adopt virtual court proceedings where all relevant parties to a legal case appear over one or more video conferencing or phone lines instead of appearing in person, for multiple benefits.
In this piece, Vanguard’s Law and Human Rights locate Nigeria in the global race towards a virtual court system, through its implementation of the May 2020 guidelines rolled out by the National Judicial Council, NJC, and other levels of court in the country to regulate remote court sittings in the country, and argues that though the policy has more benefits than drawbacks, its level of acceptability by the bar and the bench appears to be disturbingly low owing to a number of challenges including dwindling political will by relevant authorities to make the administrative policy work.
Background
About two years ago, a Lagos High Court sitting in Ikeja, sentenced one Olalekan Hameed to death by hanging for robbing and killing one Mrs Jolaoso Okusanya at her residence located on Plot 83, Owukun Crescent, Alaka Estate, Surulere in Lagos.
The trial judge in the matter, Justice Mojisola Dada gave the judgment in a criminal case with Charge No ID/9006C/2019.
Specifically, the judge delivered the verdict during a virtual court session using Zoom platform.
The participants in the court session included the judge who was fully robed; the defendant; his team of counsel; the prosecution team led by the Lagos State Solicitor-General, Shitta Bay; and all witnesses in the case.
They all participated in the session from different locations via the Zoom platform.
The condemned, Hameed, who was a driver until he was arrested, was earlier arraigned for the offence on March 6, 2019.
He had pleaded not guilty to the charges, following which the trial commenced.
At trial, the prosecution called nine witnesses and tendered exhibits including the Coroner’s report, stolen N97,500 and $117 recovered from the convict.
The case of the prosecution witness was that Hakeem was the only one with the deceased at the time of death after which he was also seen scaling the fence of the deceased’s residence.
But during defence, Hameed disowned the exhibits tendered against him, saying the only money he took from the deceased was N1,000, even as he denied killing Mrs. Jolaoso Ogunsanya.
Delivering judgment in the case through Zoom, the trial judge, Justice Dada held that the case was straightforward.
“The case is clear. I have not found any contradiction with the evidence of the prosecution witness that can be deemed material or weighty enough to cast any doubt on the case of the prosecution against the defendant in this case.
“The facts of the case are incompatible with the innocence of the defendant but rather, his guilt on the two counts.
“The defendant is hereby found guilty of the count two charges of murder and is hereby convicted as charged and accordingly sentenced to death.
“The sentence of this court upon you, Olalekan Hameed, is that you be hanged by the neck until you are pronounced dead and may the Lord have mercy upon your soul. This is the virtual judgment of the court.”
The verdict which was delivered on May 4, 2020, was one of the first virtual court sessions that was held in the country.
The platform used to deliver the judgment by the judge had sparked controversy amongst lawyers, judges, academics and other stakeholders in the country with some attacking the constitutionality of virtual court proceedings while others were of the view that it was a format of justice dispensation that was long overdue for adoption.
How Virtual Court Proceeding Started in Nigeria
With the outbreak of COVID-19 in the country and the attendant lockdown and restriction of movements, most lawyers were feeling frustrated that they were being denied the opportunity to practice their trade.
This made the Chief Justice of Nigeria, Justice Tanko Muhammad, to direct that cases that were time-bound and urgent be heard.
But lawyers could not leave their houses because of lockdowns imposed by states.
To ensure that the justice system was not grounded to a total halt, some senior lawyers wrote to the CJN to consider the adoption of the remote court sitting.
In one of such correspondence, the Justice Reform Project, JRP, in a letter dated April 14, 2020, urged the CJN “to consider issuing immediate Court Directions and Protocols to ensure the continued administration of justice in the face of the pandemic.”
This made the CJN in his capacity as the Chairman of the National Judicial Council, NJC to set up a 10-man committee for the purpose.
The committee, headed by Justice Olabode Rhodes-Vivour (now retired), was to come up with urgent practical strategic measures to ensure courts continue to function despite the lockdown and restrictions arising from the COVID-19 challenges.
Apart from Justices Rhodes-Vivour, other members of the committee included the Acting President of the Court of Appeal, Justice Monica Monsem Dongbam and the Chief Judge of the Federal High Court, Justice John Tsoho.
Also on the committee were the President of the National Industrial Court, Justice B. Kanyip; Chief Judge of the FCT, Justice Ishaq Bello; Justice Kashim Zannah and Justice O. A. Ojo.
Three private practising Senior Advocates of Nigeria were also part of the committee.
There were two former Presidents of the Nigerian Bar Association, NBA, Paul Usoro and A. B. Mahmoud with another senior member of the inner bar, D. D. Dodo.
The committee at the end of its assignment, among other recommendations in line with the Federal Government’s guidelines for taming the spread of COVID-19, recommended the use of technology by way of virtual sitting in court proceedings, a decision the CJN and the NJC approved.
By way of circular with Reference Number: NJC/CIR/HOC/II/656 issued in April 2020, the CJN recommended the remote court proceeding to heads of different levels of court to mitigate the suspension of courts’ activities during the COVID-19 pandemic.
Following the recommendation, Heads of Courts issued Practice Directions for a remote court sitting pursuant to powers granted them by the 1999 Constitution (As amended).
Lagos State was one of the few states in the country that responded to the circular by coming up with its own Practice Direction with the signing of the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice Direction” by the state chief judge, Justice Kazeem Alogba, in May 2020.
The said Practice Direction approved the use of digital platforms like Zoom, Skype or any other video- and audio-conferencing platform approved by the Court for the hearing and determination of urgent cases.
Justice Mojisola Dada of the Criminal Judicial Division of the Lagos High Court rode on the state’s newly rolled out Practice Direction to deliver the May 4, 2020, judgment sentencing, Mr. Olalekan Hameed to death for robbing and murdering his victim, Mrs Jolaoso.
Also in Borno, the state government in April 2020 set up a virtual courtroom for hearing cases through teleconference, using digital tools.
The Chief Judge of the High Court of Borno State, Justice Kashim Zannah said that although the coronavirus pandemic necessitated the development, he assured that the state would continue to take advantage of available technologies even after the pandemic.
Indeed, using the virtual courtroom, a judge of the Borno State High Court, Justice Fadawa Umaru, delivered a judgment in a case between the state and Ali Mohammed.
Unlike the Lagos case, the defendant in Borno criminal case was discharged and acquitted having been found not guilty of culpable murder.
The Federal High Court and some other state judiciaries equally issued separate but similar Practice Directions on virtual court proceedings in their jurisdictions and commenced the implementation of the same.
Lawyers, judges kick against the adoption of Virtual Court Proceedings, VCP
Soon after the Lagos High Court delivered the May 4, 2020 judgment, tongues began to wag over the validity of the judgment and the constitutionality of virtual sittings generally, considering the provisions of Section 36 of the Nigerian 1999 Constitution (as amended).
Indeed, Section 36 of the Constitution basically provides that every person shall be entitled to a fair hearing within a reasonable time for the purpose of determining the rights and obligations accruing to any such person and that such a hearing must be held in public.
The gravamen of the issue was whether virtual sittings or the Internet constituted a ‘public’ place within the meaning of the Constitution.
One of the lawyers who documented the attitude of the bar towards the judicial policy is a respected member of the inner bar, Chief Adegboyega Awomolo, SAN.
Why VCP is unconstitutional—Awomolo, SAN
According to him, the requirement for public hearing and determination of cases in Nigeria is mandatory as the operative word in sections 36 (3) & (4) of the Constitution is “shall” maintaining that the law is settled, where the word “shall” is used in a statute, it means a command to do or not to do a particular thing and there is no room for discretion.
Citing the case of Edibo v. The State (2007) 13 NWLR (Pt. 1051) p. 306, Chief Awomolo, SAN, argued that the Supreme Court set aside the conviction of the defendant by the lower courts in the case simply because a Judge’s chambers is not a public place which permits unrestricted ingress and egress for the general public.
The learned senior advocate also referred to the case of Oviasu v. Oviasu (1973) 11 SC 315, where the judge conducted a hearing of a petition for dissolution of marriage in his chambers.
He had said that upon appeal, the Supreme Court set aside the decision of the trial court and held that the hearing of the petition in the Judge’s chambers occasioned a fundamental irregularity as the same was not conducted in public.
That was after the Court defined “public” in the case to mean “open to everyone without discrimination.
Relying on the above decisions, the learned silk concluded that virtual proceedings do not meet the constitutional requirement of sitting in public.
Again he argued that before virtual communication of any kind can take place, the following must be available: appropriate technology gadgets (like smartphones), access to the internet and registration with a virtual communication service provider.
He said that according to a February 2020 report, only about 25% to 40% of Nigerians have a smartphone.
Furthermore, he cited another report published in January 2020, to show that only 42% of Nigerians have access to the Internet.
In the light of the foregoing, he concluded that it is clear that, unfettered access to virtual court proceedings in Nigeria will not be feasible to a larger percentage of the Nigerian public.
Furthermore, he posited that virtual court proceedings will be open to only the Judge, the litigants and their counsel and that limiting virtual court proceedings to only these people would defeat the spirit of Section 36 (3) and (4) of the Constitution, as any “justice” arrived thereat, would be cloistered justice.
Finally, the learned Senior Advocate maintained that while the adoption of virtual court proceedings by the Nigerian judiciary is desirable, certain extant laws including the Nigerian Constitution must first be amended to avoid a situation where justice is slaughtered on the altar of modern trends.
“Contentious matters ought to be handled virtually so that people would not need to travel a long distance.
“But even now, you still find that lawyers will have to travel a very long distance just to move these simple motions. The other day, I travelled from Abuja to Port Harcourt just to go and move a motion.
“You know. When the pandemic ended, the heightened interest in virtual hearing declined. You know it was as if the main factor that propelled it was the pandemic. The moment the pandemic ended, the virtual hearing has virtually stopped in most of the courts with a singular exception and that is the National Industrial Court. And they should be commended for that.
“National Industrial Court continues to practice virtual hearings such that you can participate in their proceedings from any part of the country from their websites.
“Sometimes, there was a hearing going on in Akure, I was able to participate from Abuja here. I was in my car, connected and I participated. And it was open access. Members of the public can also connect. So, I think we should commend National Industrial Court for that and we should recommend virtual proceedings for most of the motions that are not contentious.
“More than 50% of the motions in our courts are motions that are not contentious. And the appellate court should particularly encourage the use of virtual court sitting because they did it very well during the COVID. There is no reason why we should now relax.
Why implementation of NJC policy on virtual sitting is dying—Prof Akinseye George, SAN
“The reason why the practice is not pronounced is inadequate sensitisation. All the sensitisation that took place during COVID had stopped. They ought not to stop it because we are talking of a major change in culture.
“Another reason is that the NBA has relaxed. The NBA has not continued to advocate the use of virtual hearing as it did during the COVID era. There is a need for the NBA to be more interested
“Another reason is that many of our judges are not ICT compliant. So, many of them preferred the traditional approach. That means that in subsequent appointments, anybody who is not ICT compliant should not be appointed.
“Another thing is the instability in the power supply. But that should not be a reason to stop us. During COVID, we did it. That means if we want to do it, we can do it. If we are interested, if the willingness is there, we can make sure we have a generator which is part and parcel of our economic system. That is the reality today. I think it is because of lack of willingness, commitment to do it,” he added.
Another top lawyer who does not want his name in print told Vanguard that judges actually plotted the death of the NJC judicial policy on virtual court sitting because they are not ICT compliant.
“Let me tell you, some of these top lawyers cant operate the phones they are carrying effectively.
“Besides, some of the top lawyers in the country prefer to appear before a judge physically rather than virtually in order to win their cases. Some of the judges on the bench today passed through the chambers of these top lawyers. They believe they will communicate better physically than virtually to win their cases,” the lawyer added.
Benefits of virtual court sittings
Although some lawyers and judges are of the opinion that Nigeria is not yet ripe for virtual court sitting, the policy is without doubt very useful.
Proponents of the policy argue that it is convenient and capable of saving time and cost because the current practice of lawyers and litigants sitting in court for long hours just to have their cases heard for a few minutes is time-consuming.
It is further argued that the costs saved can also be deployed to secure better legal representation asides from the likelihood that more litigants and their witnesses would attend virtual court sittings because of its convenience.
It is also the view of the proponents that there will be increased transparency as the RCP courts will be more readily accessible to more people.
Inefficient case management has also been noted as an impediment to justice delivery in physical courts and more cases can be concluded swiftly using virtual court sitting.
Perhaps a further long-term benefit to consider is the increased sophistication of society and business transactions and the consequential requirements in terms of the need for speed in the dispensation of justice.
This is in addition to the need to curtail the rising operating costs of running courts, particularly in the face of the recurrent budget constraints currently faced across all levels of government in Nigeria.
While it appears all hope is not yet lost, it is hoped that the NJC would hearken to the advice by Prof Akinseye George that henceforth, ICT compliance should be made a compulsory criterion for the appointment of judges while NJI should focus more intensely on computer literacy for all sitting judges in the country. Besides, computer literacy should be infused into the curricula of schools training lawyers in the country.
