Commentaries on the Lagos State Practice Direction for Remote Hearing of Cases 2020

By: Joy Ebong, Okiemute Ejokpa and Pearl Eriyamremu

Introduction

The effectiveness of a country’s judicial system can be measured by the efficacy of its access to justice protocol for its citizenry. The outbreak of the novel coronavirus (COVID-19) pandemic has impacted virtually all aspects of human life, including the administration of justice system. Many jurisdictions, including Nigeria, have taken steps to ensure the continuous dispensation of justice and the progress of dispute resolution proceedings while trying to curb the spread of the virus.

The measures put in place to ensure the continuity of the Nigerian administration of justice system during the subsistence of the COVID-19 pandemic, including the remote hearing of cases through the deployment of technology is commendable but raises both practical and legal concerns.

Remote Hearings in Other Jurisdictions

The Judiciary in England and Wales released a protocol regarding remote hearings on 26 March, 2020. This protocol applies to hearing of all kinds including trials, applications in the County Courts, High Court and Court of Appeal (Civil Division), including the Business and Property Courts.

The UK Supreme Court conducted its first ever remote hearing on 24 March, 2020. That Court will be hearing all cases as well as delivering judgments through video conferencing until further notice. On 16 April 2020, the London Court of International Arbitration announced that each of its institutions will make use of digital technologies for working remotely. The International Court of Arbitration of the International Chamber of Commerce has released a guidance note outlining a range of measures to help mitigate the effects of COVID-19 on arbitration proceedings. One of such measures by the International Court of Arbitration of the International Chamber of Commerce is the conduct of conferences and hearings by audio-conference, videoconference, or other similar means of communication (“virtual hearings”). The Supreme Courts and Courts of Appeal in Ireland began remote hearings on the 20 April 2020.

The Dubai Courts have announced that from 19 April 2020, all hearings will occur electronically using Microsoft teams and that cases will be filed electronically. The Dubai International Financial Centre Courts have also announced that hearings will be conducted via teleconference. In Australia, the High Court in Canberra has announced plans that it will continue to deliver judgments and hear urgent matters using video conferencing technologies.

Remote Hearings in Nigeria

The Chief Justice of Nigeria, Honourable Justice Ibrahim Tanko Muhammad (the “CJN”) had directed all Courts to suspend court sittings for an initial period of two weeks from 24 March 2020. However, the Courts are expected to sit particularly, to dispense matters that are urgent, essential or time bound. The CJN further extended the suspension of court sittings till further notice given the measure put in place by the Federal and some State Governments to curb the spread of COVID-19.

On 20 April 2020, the Honourable Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN (the “AGF”) acknowledged that one major lesson from COVID-19 is that the Nigerian justice sector must leverage technology in the improvement of its capacity and in facilitating the fair and speedy administration of justice. The AGF announced that one of such adjustments in the judicial system in light of the COVID-19 pandemic will be the use of technological tools to conduct proceedings including virtual proceedings.

Interestingly, the Chief Judge of Lagos State, Honorable Justice Kazeem O. Alogba, pursuant to the provisions of section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), section 87 of the High Court Law of Lagos state 2015 , Order 49, Rules 1, 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules 2019, Lagos State Magistrates’ Court (Civil Procedure) Rules 2009, and the Administration of Criminal Justice Law of Lagos 2015, has issued Practice Directions for Remote Hearing of Cases in Lagos State.
The Lagos Practice Directions which came into effect on 4 May 2020, contain 26 paragraphs dealing with issues ranging from electronic filing of processes, service of processes electronically, preparation, conduct and recording of remote proceedings, as well as adoption of written addresses and delivery of rulings and judgments. The objectives of the Practice Directions are to ensure the timely and efficient disposal of cases, the use of suitable technology, the just determination of proceedings, the efficient use of available judicial and administrative resources in the hearing of new urgent cases and pending cases, adoption of addresses, rulings and judgment or any other matter as the Chief judge may approve. The Practice Directions are highly commendable as it reflects the desire of Lagos State to ensure the hearing of urgent matters and dispose of pending cases even during unprecedent times such as this. However, there are some practical and legal issues that are of concern in the application of the practice direction. The issues are dealt with hereunder.

Constitutionality

Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) is clear on the way and manner civil rights and obligations of a person should be determined. The Constitution provides that every person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

Section 36 (3) of the Constitution provides that the proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in section 36 (1) shall be held in public. Thus, virtual hearings, not being held in a conventional courtroom, would seem to offend the Constitution. In Oviasu v. Oviasu (1973) 11 SC 315, the Supreme Court defined “public” to mean: “Open to everyone without discrimination. Anything, gathering or audience which is not private is public.”
It is our considered opinion that where such virtual hearing details like meeting codes and passcodes are shared with the public, giving the public access to these hearings, such hearings will meet the constitutional requirement of access to the public. By sharing the codes and virtual hearing details, any member of the public can access such hearing.

We are not unaware of the arguments that Nigeria is not an advanced nation and as such virtual hearings will only be limited to those who can afford the necessary devices and Internet services. We submit that those arguments are akin to lack of resources to commute to the court premises. Members of the public who lack the resources to attend court sittings cannot argue that court hearings are not public. The various virtual hearing platforms are always accessible where the passcodes are available to members of the public. The argument that virtual hearing platforms have limited access as regards the number of persons that can be on the platform at a given time, is neither here nor there. Our biggest courtrooms cannot accommodate the over 200 Nigerians per time. Does that imply that such courtrooms do not qualify as public?

While we believe that there is nothing preventing Nigerian Courts from holding virtual hearings in civil cases, with respect to criminal matters, it might seem difficult to satisfy other requirements of the Constitution and other laws. For instance, where will be the dock for the purposes of taking a plea? In Edibo v. The State (2007) 13 NWLR (Pt 1051) 306, the Supreme Court held that:
“The proceedings of the 19th January, 1998 wherein the plea of the appellant and others were taken in the Judge’s chambers was not only irregular; it was fundamentally defective rendering the entire proceedings null and void. I hold in the circumstances that this appeal succeeds on that issue. The appeal is accordingly allowed, and the judgment of the court below is set aside. The entire proceedings of the learned trial Judge including the conviction and sentence of the appellant and others tried along with him contravened the provisions of Section 33(3) of the 1979 Constitution and same is hereby declared null and void and is set aside.”

Other Legal Challenges of Remote Hearings in Nigeria

• E-payment for filing

Paragraph 9 of the Lagos Practice Direction provides that:

“(i) Parties shall pay the assessed fees by electronic transfer into the bank account of the Court. (ii) A copy of the electronic receipt issued shall be scanned for verification. (iii) The document shall be deemed to have been filed when the payment is verified by the Court. PROVIDED that during the Covid-19 period, where it is impracticable to make e-payment, payment can be made at the Registry.

As a leeway for litigants where e-payment is not possible, the Practice Direction provides that during the Covid-19 period, such payment can be made at the Court Registry. We understand that Lawyers as well as litigants have not been designated as essential service providers. The implication is that where there is a lockdown imposed by the Federal Government or the Government of a State, they are not exempted. How then can litigants make payments for filing where e-payment is impracticable? Would there be proof of an exemption that will be carried around by such litigants or their Lawyers in order not to be harassed by security agencies whilst proceeding to the Court Registry? This is a problem that is yet to be addressed by the proponents of Remote Hearings in Nigeria.

• Electronic service of Court processes

Paragraph 11-13 of the Practice Directions provides that:

“Notwithstanding the provisions of the High Court of Lagos State (Civil Procedure) Rules 2019 and the Lagos State Magistrates’ Court (Civil Procedure) Rules 2009, service of Court processes may be effected by email, WhatsApp or as otherwise directed by the Court. This service shall constitute proper service and time shall begin to run from the date the process was sent. Where an electronic mode of service is employed, time shall prima facie begin to run from the date the process was sent.”

Electronic service of processes is not unknown to our judicial system. In C.E. & M.S. Ltd v. Pazan Services Nigeria Ltd (2020) 1 NWLR (Pt 1704) 70, the Supreme Court held that:

“There is evidence that parties left their phone numbers with the registry of the Court, the phone numbers were supplied for the purpose of communication between the parties in this matter and the registry. Message containing 15th March 2016 as the hearing date of this matter was sent to learned counsel for respective parties, through their phone numbers. Clearly, parties were properly served with hearing notice. I agree with the lower court that at this age of information technology superhighway, it would be foolhardy for any litigant to insist on being served with hard copy hearing notice. Once a notice is sent to the GSM numbers supplied by the litigants, that is sufficient.

Also, Order 7, Rule 1 (4) of the National Industrial Court Rules 2017 provides that where a hearing notice or any other Court process has been sent and delivered by means of any electronic device, as stated in the rule, to the contact addresses or information provided by a party or counsel, it shall be deemed sufficient, good and proper service on the party or counsel that provided the e-mail address(es) or electronic mailing device. See also Order 9, Rule 5 of the High Court of Lagos State (Civil Procedure) Rules 2019.

The purpose of service of judicial processes is to bring the existence or pendency of the said process to the knowledge of the Defendant or Respondent. Thus, the issue of service goes to the jurisdiction of the court as it is an issue of fair hearing. Given the peculiarities of Internet service providers and the electronic platforms chosen (such as WhatsApp), the question then is, how will a Claimant or Applicant prove receipt or delivery of processes served electronically?

It is common knowledge that while messages may be sent on WhatsApp, it may be difficult to ascertain whether or not such messages have been read especially in cases where the receiver turns off read-receipts (which is usually signified by two blue-coloured ticks beside the sent message). Also, the fact that an email has been sent is not proof of delivery as the receiver may not have received it or may not have had the opportunity of reading it due to some error in sending or download.

Under the received Common Law, where acceptance of an offer is by post, the date of posting is deemed to be the relevant date of acceptance, even though the said acceptance has not been communicated to the offeror (See Adams v Lindsell (1818) B & Ald 681; Byrne v Van Tienhoven (1880) 5 CPD 344). This rule is an exception to the doctrine that acceptance must be communicated to the offeror. Whether or not the offeror received the post was of no moment, as there is a binding contract, once acceptance has been posted. Over the years, the absurdity of this form of acceptance led to the Courts developing so many exceptions to the rule. In British & American Telegraph Co. v. Colson [1871] LR 6, the Court was of the view that “the rule in Adams v Lindsell will not apply where the application would produce manifest inconvenience and absurdity…”

In juridical proceedings, it would be unfair for a Court or Tribunal to assume jurisdiction over a matter when the opposing party has no knowledge of the pendency of the action or application. If the aim of service of court processes is to bring to the attention of the opposing party knowledge of a pending action against him, then there must be proof that he had knowledge of such process.

• Dressing for Remote Hearing

Paragraph 20 of the Lagos Practice Directions provide that Counsel shall dress appropriately, and parties shall be properly dressed for Court proceedings. The Practice Directions do not define what constitutes appropriate dressing. This begs the question whether for a Lawyer to be appropriately dressed, he must be fully robed. Where the requirement is that the Lawyer must be fully robed, it will be difficult to excuse the provisions of Rule 45 (2) of the Rules of Professional Conduct for Legal Practitioners 2007. The Rule provides that:

“A lawyer shall not wear the Barrister’s or Senior Advocate’s robe – (a) on any occasion other than in Court except as may be directed or permitted by the Bar Council; or (b) when conducting his own case as party to a legal proceeding in Court; or (c) giving evidence in a legal proceeding in Court.”

Thus, will a Lawyer be denied right of audience based on inappropriate dressing particularly where such a Lawyer merely wears a decent shirt and trouser?

• Evidence of Court proceedings.

Paragraphs 21 – 23 of the Lagos Practice Directions provides that: (i) the proceedings of remote hearings shall be recorded by the Court; (ii) parties are only allowed to record the proceedings with leave of Court; and (iii) a certified true copy of proceedings shall be made available upon request.

This raises the legal question whether evidence of a certified true copy of remote court proceedings will be subject to the requirements of section 84 of the Evidence Act 2011 which regulates the admissibility of electronically generated evidence. Again, where a party or counsel seeks to tender the recording of remote Court proceedings obtained without leave of Court in subsequent or other proceedings, will such recording be admitted in evidence without satisfying the requirements of section 84 of the Evidence Act 2011? It is submitted that such evidence ought to be admitted by the Court, where such same is relevant and has fulfilled any other condition for admissibility as provided by the applicable laws.

Some Practical Challenges of Remote Hearings in Nigeria:

There are also some practical challenges posed by the Lagos Remote Hearings Practice Directions. Some of the challenges include the following:

• Technological illiteracy: The lack of digital literacy by many Nigerians, including some Legal Practitioners, poses a great challenge to the system of virtual hearings. For instance, for a witness who has little or no digital knowledge, giving evidence in a virtual trial would pose a challenge.

• Lack of hardware/Internet facilities: Inadequate ICT infrastructure including computer hardware and software as well as bandwidth/access is one of the major challenges of a virtual court system in Nigeria.

• Data privacy of parties: Given the growing rate of cybercrimes, security breaches of confidential information/documents of a party or an organization, participating in a virtual trial may pose serious challenges to the system.

• Location of parties/witnesses: Although the virtual court system is time/cost efficient as parties/witnesses who are outside Nigeria need not be physically present for trial, there is the challenge of time difference between countries. For instance, it is doubtful if proceedings can be conducted by 8am and before 8pm (Nigerian time) where the parties and their witnesses are in different times zones. A party or witness who is in a country whose time zone is different from Nigeria’s time zone will face difficulty or inconvenience participating in the proceedings.

• Also, in giving evidence, video-conferencing may distort non-verbal cues such as postures and gestures, including the nuances and cadences of witnesses, and thereby affect the trial Court’s opportunity to observe the demeanour of witness.

Recommendations

a) There should be a policy framework which encourages investment in ICT for the judiciary, including tariffs on import of ICT infrastructure, to promote affordability and wide range usage, before the adoption of virtual hearings by Nigerian Courts.

b) In choosing a platform for the virtual hearing, certain factors should be considered, such as the quality of the video, quality of the audio, document sharing capabilities of the platform and capacity for participants. The use of secure courier services and tamper-proof packaging methods in transporting bulk data will help in mitigating breaches as well as securing information with encryption.

c) To satisfy the requirement of access to court hearings, virtual trials may be live-streamed and/or recorded and uploaded on YouTube or other similar platforms for the public. There is also the need for qualified ICT personnel to manage the applicable systems.

d) Counsel representing parties who wish to explore the virtual court system must be well-informed on the practical/legal challenges and possible ways of mitigating same.

e) There should be a procedure for ascertaining delivery and receipt of court processes served by email, WhatsApp etc.

f) The role of the judiciary, especially in unprecedented times like this, should be emphasized. It is obvious that the legislative and executive arm of government are actively involved in making and implementing policies that mitigate the effect of the COVID-19 pandemic on the socio-economic environment of Nigeria. However, it is trite that the three Arms of Government (with the inclusion of the Judiciary) must work effectively to ensure a system of checks and balances. The Judiciary is essential, especially in times like this.

g) There should be a uniform virtual platform for the hearing of the cases by the various Courts in Nigerian in order to maintain uniformity.

h) There is an urgent need for constitutional amendment in order to bring the applicable provisions of the Nigerian Constitution in conformity with the rapidly changing times and the realities of virtual Court proceedings in Nigeria.

Joy Ebong is an Associate in the Shipping & Dispute Resolution Practice Group of Adepetun, Caxton-Martins, Agbor & Segun (ACAS Law). jebong@acas-law.com
+234905 253 6219

Okiemute Ejokpa is an Associate in the Shipping and Dispute Resolution Practice Group of Adepetun, Caxton-Martins, Agbor & Segun (ACAS Law). oejokpa@acas-law.com
+2347030308812

Pearl Eriyamremu is an Associate in the Dispute Resolution Department of Alliance Law Firm. pearl.eriyamremu@alliancelf.com
+234 816 441 8133

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