We are gradually getting to the center of it all, now marking one month and some days since the compulsory lockdown due to the Coronavirus pandemic, although this has not seriously affected some sectors of the economy designated as essential services. By and large, the legal profession is beginning to feel the impact of COVID 19 and a lot of suggestions have propped up from some segments of the legal community, on the need to embrace technology to overcome the lockdown of the judiciary in this critical time.
For the past two weeks or so, arguments have raged for and against what is termed remote hearing, by which is meant the deployment of technology to aid the administration of justice and to dispense with physical appearance of lawyers and their clients. A video was circulated of a State in the North, where criminal proceedings were said to have been commenced and concluded, using a customized Zoom application for the court, even though we were not availed the full trial, to determine how the prosecution, the defendant and their witnesses were heard. The matter has gotten so serious that the National Judicial Council, NJC, has set up a Committee to look into it.
Those who advocate remote hearing predicate their argument on the fact that technology is the driving force of the universe presently. They posit that virtually in all sectors of human life, internet has become second nature and that sooner than later, artificial intelligence will most probably take over the functions of men such that we may have no need even for a physical office. Examples are cited of advanced countries such as the United States of America and the United Kingdom, where even before COVID 19, remote hearings have become the order of the day in the conduct of judicial proceedings. It is faster, predictable and very much reliable. It would help in the decongestion of the cause list and would assist greatly in the attainment of effective dispensation of justice. Given the traffic situation in metropolitan cities like Lagos, Port-Harcourt, Abuja, Onitsha, Awka, Benin, etc, which are the core litigation centers in Nigeria, any method that would not require lawyers, judges and litigants to get up so early in the morning just to be in court, should be embraced by all, as it will enhance longevity.
Ebun-Olu Adegboruwa
A situation where a judge has well over six hundred cases on his docket cannot deliver justice, at least for the majority of the litigants who flock the courts daily, to seek judicial remedy. This has in turn taken its toll on the quality of the judgments coming out from the courts, as the judges do not have enough time to embark upon thorough research to come out with very sound reasonings for the decisions being handed down, most often times trying to beat the deadline to submit returns to the NJC.
One of the major challenges of advocacy in Nigeria is the physical appearance of counsel to argue applications. The problems range from absence of proof of service of court processes, to non-service of hearing notices on the opposing counsel, inability of the court registrars to place the relevant application before the court, and even default and non-compliance. In many cases that I have witnessed, counsel and the court registrar would be at logger heads as to whether the application was indeed submitted or not, to the extent that the Chief Judge of Lagos State had to issue a practice direction to the courts, to develop an acknowledgement strategy for all processes filed and taken to the court. At other times, counsel is not ready to proceed, due to improper preparation, sometimes the judge has official engagements which has not been communicated to the lawyers and their clients, who at times come from outside jurisdiction. This cannot continue. The other point is that judges are able to regulate their proceedings and in that wise achieve more, as lawyers are used to long arguments. In most cases, by the time a court has taken three interlocutory applications, the judge gets weary and worn out, resulting in peremptory adjournment of all other cases. With remote hearing, it is expected that cases will be scheduled and given specific timelines so that nobody is able to drag the wheel of justice.
There are many challenges with remote hearing, the most important of which is legislative prohibition. In virtually all the courts across the nation, the rules guiding practice and procedure are made for the conduct of physical proceedings, where the judge, the lawyer and the litigant, are all present in court physically. In addition, the Constitution requires that all court proceedings be conducted in public and that everyone should have access to such hearing. That is why in the consideration of whether a judge is likely to be biased or not, the opinion of the reasonable man, who is allowed access to the proceedings as a member of the public, is key. So, unless a litigant is guilty of misconduct, he cannot be barred from witnessing his own case. In criminal cases, the defendant must be physically present in court, for the proceedings to be valid. In a recent case involving one of the agencies prosecuting financial crimes, a situation arose where a defendant absconded from the court, after trial had been concluded and the case was adjourned for adoption of written addresses. Ordinarily, the court and counsel on both sides thought it normal to just proceed to adopt the addresses and then adjourn for judgment. When the matter eventually got to the appellate court, all the proceedings conducted were set aside and the judgment delivered thereon nullified, for failure to comply with statutory requirements. The Court of Appeal did all its best, to examine all the statutes, from the Constitution to all the criminal procedure legislations, given the amount of time and industry that had gone into the case, but it could not salvage the case.
Another danger in remote hearing is the absence of requisite infrastructure to power it. In this regard, we talk of inefficient and unreliable telecommunications system, especially for e-filing and service of court processes. In Lagos State, it used to be possible to file a case and get it assigned to a court in just one day and thereafter get a hearing date, if it is accompanied with an affidavit of urgency. But since the introduction of e-filing in the court, cases have suffered delays, as you have to first generate a code, and then pray to God to be able to pay for filing. You then have to get a temporary suit number and thereafter go home and wait for the permanent suit number. The bailiff will most probably not agree to go and serve the process until the permanent suit number is out and the court papers will keep gathering dust in the registry without moving to any court, until the permanent suit number is generated. And this is just filing of court processes. In the Practice Direction issued for courts in Lagos State for remote hearing, it is stated in paragraph 13 thereof that “where an electronic mode of service is employed, time shall prima facie begin to run from the date the process was sent.” How can this be? To punish a litigant and his lawyer for court processes sent but not delivered or received? In a case that I am presently handling, hearing notices were said to have been sent via email of counsel for the hearing of an appeal, but the appellant was not represented on the day of hearing and the appeal was dismissed. It has since turned out that the hearing notice purportedly sent to the email of counsel was not delivered as was represented to the court. The electronic platform of the courts cannot cope with the pressure of work to come from lawyers, as they are too slow and in some cases, outdated.
Then another issue is power supply. For a counsel to participate in remote hearing, he must be in an environment that is well lit and conducive for decent viewing. So, he has to buy a generator and power it for this purpose. The same thing for the litigant, if he wants to exercise his constitutional right to be part of the proceedings, especially if he is the witness in the case. Then also is the issue of electronic appliances for remote hearing. It has to be a modern smart phone, an Ipad or a computer, with the latest facilities. After this comes the real issue of data subscription. The way the GSM companies operate their data regime, it cannot encourage any remote hearing, with just one hour of video conference consuming almost a month’s subscription, all at one hearing. But perhaps the greatest obstacle to remote hearing is the issue of security. First is the security of the court proceedings itself, not to be hacked into by fraudsters. Some court cases are very sensitive, especially political cases and matrimonial causes, where the destinies of children are at stake. Then is the major issue of security of documents. Even in physical court appearances, some lawyers and their clients do alter documents and present them as authentic, how much less in remote hearings, where it becomes extremely difficult to determine the authenticity of documents presented to the court. The case becomes more compounded when it comes to tendering of exhibits and documents and even in the compilation of records of appeal, certification of documents and such other important matters involving documentary evidence.
What then can be the solution? Remote hearing will work best in the appellate courts, to clear the backlog of the pending appeals in the Court of Appeal and the Supreme Court. It will work well for arbitration proceedings and such other causes that do not warrant calling oral evidence all the time. If adopted for complicated High Court hearings of land and chieftaincy causes, criminal proceedings and other cases requiring oral and documentary evidence, it will lead to denial of access to justice, which is granted to all citizens by the Constitution. Without first addressing the basic issues of access to justice and the capacity of lawyers and litigants to participate, remote hearing then becomes totally elitist and unsuitable for our present circumstance.
Then now comes my own personal issue. Are we going to robe for remote hearing or we are going to discard our beautiful attires of wigs and gowns? This is one of the reasons why I studied law, that is the beauty of the robes and attires. I just can’t get over it, that I won’t be donning my royal gown, kitted in my ever shinning bib and collar, upon that stripped trouser! Lord have mercy and take away this COVID 19, for I can’t wait to resume legal advocacy. I can never be a complete barrister, should I be banished to operate only in remote circumstances. How am I different from those laymen, in everyday suit? Tell it not in Nigeria, publish it not in the streets of Lagos, lest the mockers of lawyers rejoice and the adversaries of justice triumph.
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