Covid-19: When NJC opted for virtual court

In this report, KEHINDE OSASONA examines the implication and sustainability of the National Judicial Council (NJC) approval of virtual proceedings for all heads of courts as a way of achieving speedy dispensation of justice amidst the Coronavirus (Covid-19) pandemic.

Before now, some stakeholders in the judiciary had advocated e-Court/ virtual court as beneficial to both litigants in the long run given the long drawn period most litigations take.

In line with the fore going the National Judicial Council (NJC) approved virtual proceedings for all heads of courts as a way of achieving speedy dispensation of justice amidst the Coronavirus (Covid-19) pandemic.

While reeling out guidelines for court sittings in the Covid-19 period on May 6, 2020, the NJC directed all courts in the country to avoid physical court sitting and urged the adoption of the virtual or remote court system.

According to the practice direction, lawyers are to file their suits electronically through email or WhatsApp, even as court papers must be in PDF form.

“Remote hearings shall be by Zoom, Skype or any other video communication method approved by the court,” the commission said.

Prior to this time, some legal pundits had clamoured for an amendment of the Constitution of the Federal Republic of Nigeria to accommodate virtual or remote hearings before it could be applied in the country.

Blueprint Weekend checks indicate that the bill which was recently introduced at the Nigerian Senate seeks an amendment of the Constitution to make provision for the proposed technological option.

The guidelines

At its 91st meeting held on April 22, 2020, the NJC constituted a committee to devise guidelines and measures to enable safe court sittings during the Coronavirus pandemic era.

Headed by Hon. Justice Olabode Rhodes-Vivour, a Justice of the Supreme Court (JSC) and NJC deputy chairman, the committee was saddled with the responsibility of devising guidelines and measures appropriate to the legal and material circumstances of their Courts, with a view to achieving the goal of safe justice delivery.

The guidelines partly read, “I have directed the Judicial Information Technology Policy Committee (JITPCO), of the Council to urgently set-up a Helpdesk for Courts that may require handholding in adopting and utilizing the technological tools suggested in the guidelines.

“Such physical court sittings must be limited only to time bound, extremely urgent and essential matters that may not be heard by the court remotely or virtually.

“Heads of courts have the responsibility for determining the matters that fall within these set boundaries and shall publish the list thereof for the information of judicial officers, litigants, counsel and members of the public. Such list may be reviewed by the head of court from time to time as necessary and required.

“Virtual court sittings (alternately referred to as ‘remote court sittings’ or ‘online court sittings’) should be encouraged and promoted by the courts and counsel; the courts should insist on such remote hearings for matters that do not require taking any evidence.

“All judgments, ruling and directions may be delivered and handed down by the courts in and through remote court sittings.”

The guidelines further stated that if the courts must have to hold a physical courtroom sitting or hearing among other guidelines, “the containment guidelines in the various published advisories by the World Health Organisation (WHO), and relevant agencies of the federal and state governments, including but not limited to the Nigerian Centre for Disease Control, must be strictly enforced by heads of courts within court premises including courtrooms, offices, registries and the chambers of judicial officers.”

 Federal High Court aligns

While aligning with the NJC on the directive, the Chief Judge (CJ) Federal High Court (FHC) of Nigeria, Justice John Tsoho, gave approval to the use of virtual proceedings for adjudication in courtrooms.

According to the CJ, under the new rules, FHC judges cannot hear more than nine cases in a day, while proceedings can only be held virtually with the consent of the parties and their counsels.

 “Virtual proceeding is hereby adopted for adjudication in the Federal High Court. Virtual proceedings can be either by Zoom, Skype or any other audio-visual platform approved by the Court.

“Where parties and counsel agree to virtual proceedings in a case, he directed them to liaise with the court’s Registrar to schedule the hearings.

“Cases for virtual proceedings shall then be stated on the Cause List, posted on the FHC website and communicated to counsel and parties, either by e-mail or any other electronic means.”

Tsoho further stated that service of court processes may be effected by e-mails, WhatsApp or as may be directed by the Court, and shall be deemed as good service.

“Service of hearing notices may be effected by e-mail, WhatsApp, text messages or as may be directed by the Court. The print out of same shall be sufficient proof of service,” he added.

Justice Reform Project argument

However, while countering the proposed technology in a letter dated April 14, 2020, a group Justice Reform Project urged the CJN to consider issuing immediate Court Directions and Protocols to ensure the continued administration of justice in the face of the pandemic.

The JRP said it took the view that “this situation provides a unique opportunity for a considerable improvement of the administration of justice system in Nigeria, recommending that the adoption of remote court hearings would ensure the continued administration of justice in the face of the pandemic and an improved dispensation thereafter.

JRP in the letter signed by the Chairman, Governing Board, Mrs Olufunke Adekoya (SAN), and Convener, Charles Adeyemi Candide-Johnson (SAN), said, “The judiciary in several countries including the United Kingdom, the Republic of Kenya and Uganda have exploited legal, financial and technological resources to ensure hearings can be conducted remotely despite the movement restrictions in place.”

According to the group, a Justice of the Kenyan Court of Appeal reportedly delivered 57 rulings and judgments using inexpensive online video conferencing platform, Zoom sometime in April.”

Arguing further, JRP said, “Nigerian Judiciary can adopt this available, simple and inexpensive technology as has been done in other jurisdictions pending the installation of more permanent court infrastructure.

“In essence, we recommend the deployment of technology in two stages, an immediate temporary deployment using the simple and inexpensive measures recommended herein and a more permanent technological upgrade to be set out by a more elaborate process.”

Stakeholders react

The Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), last week, announced plans of Nigeria’s courts to resort to virtual proceedings during and after the Covid-19 pandemic.

Also, at a webinar entitled: Legal and Infrastructural Considerations for Remote Court Proceedings in Nigeria, which was organised by Wole Olanipekun & Co., and attended by stakeholders from the judiciary echelon, jurists and policy influencers in the justice sector, the virtual proceedings discourse resurfaced.

Atolagbe lauds initiative

Corroborating earlier stance, a notary public and assistant counsel, International Criminal Court, the Hague, Oluwaleke Atolagbe, who recently participated in remote court proceedings in Abuja and Lagos, lauded the adoption of the new initiative.

According to Atolagbe, the concept satisfied constitutional requirements, saying the virtual proceedings were in line with Section 232 of Administration of Criminal Justice Act, 2015, enabling “the witness to give his evidence through video link.”

Atolagbe, who called for more training of the judges, lawyers and court staff, observed that both the public, including the press can join and monitor proceedings such that the number of people to be accommodated may even be more than what the physical court can take.

He further stated that, “Nigerian legal practice has picked the entrenchment of this positive development from the bad situation (the pandemic) we have in our hands.”

Lagos state on March 4, 2020, adopted the Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice, which would ensure the hearing and determination of urgent and time-bound cases through digital platforms like Zoom, Skype or any other video and audio conferencing platform approved by the court.

While other states are working behind the scenes to adopt a similar practice direction, few cases had been heard in the state using the practice direction.

Meantime, the question agitating the minds of stakeholders about the digital initiative has been the likely constitutional hurdles the newly embraced technology might face.

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