Introduction
The
outbreak of the Corona virus (more technically referred to as
Covid-19) brought with it drastic implications in the activities of
man the world over. No doubt, the pandemic hit the business of people
everywhere in the world when the only generally acceptable means of
preventing and treating the disease was isolation, with the direct
implication that everyone stays at home. Of course the practice of
law is not any different.
Society
must, no doubt, move on, against all odds; and part of the greatest
gifts of man’s acumen is its power of innovation, to adapt to new
trends and situations in order that one does not live behind the
time. However, a supreme gift of man to society, too, is the law,
which bears to regulate virtually every activity of man and ensures
order in the society, man having searched in vain for the philosopher
king. So, no matter the innovation or genius of man, the law is
always there to test to which extent man’s activity is acceptable
in any given society.
The
Nigerian legal system has faced such an unforeseen difficult moment
as did other areas of life following the lockdowns, social
distancing, restrictive orders, etc, that are the direct indices of a
concerted effort at fighting the Covid-19 virus. Courtroom practices
were halted as courts were shut down and pending matters faced
indefinite protractions. It means that justice is automatically
delayed, would one argue that it is justice denied in this case? I
think it’s neither here nor there.
Virtual
Court Proceedings
The
above situation and more led to the proposition that the Nigerian
legal system should adopt virtual court proceedings whereby counsel
and court can communicate and conduct proceedings via internet
enabled media such as: zoom,
skype, et al
without the physical presence of the lawyers, and perhaps parties, in
court. It is a process enabled by the Information Technology (IT)
system which has like wildfire traversed the length and breath of
human activities and taken them to a different new dimension. Of
course the practice is already common among journalists and other
practitioners, and one will not deny the inestimable advantages
thereof, especially as it has become the perfect way to contain the
menaces of the present day pandemic as it relates to trial lawyers.
One learns that some courts and arbitral bodies are already using it.
Virtual
Court Proceedings and the Constitution
This
author is of the view that as innovative and welcome the idea of the
virtual court proceedings is, same, like every other activity in
life, must be tested within the confines of the laws of the land, and
in this case, the supreme law of the realm. That is the principle of
legality: that there has to be lawful authority, legal backing, for
the activities of man and government, including judicial proceedings
and the procedures therefore.
It
is the humble opinion of this author that it is just recently that
the rules of some courts recognised electronic service of court
processes by such methods as e-mail, whatsApp and text messages,
phone calls, etc. Text messages and phone calls have recently been
used by the Court of Appeal to serve hearing notices in some cases
and they were deemed properly so served by the court. The same
situation is also applicable to electronic law reporting which has
found a veritable place in the job of court and counsel, that today
with law pavilion, legalpedia,
etc, a trial lawyer has access to the authorities he needs in the
prosecution of his case just by a mere click of his phone or tablet.
But what about the actual court proceeding?
The
1999 Constitution of the Federal Republic of Nigeria, section 36(3)
thereof, relating to civil causes, provides as follows:
“The
proceedings of a court or the proceedings of any tribunal relating to
the matters mentioned in subsection (1) of this section (including
the announcement of the decisions of the court or tribunal shall be
held in public.”
Section
36(4) of the same Constitution further provides:
“Whenever
any person is charged with a criminal offence, he shall, unless the
charge is withdrawn, be entitled to a fair hearing in public within a
reasonable time by a court or tribunal:
Provided
that –
- a court or such tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice.
- if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be disclosed, the court or tribunal shall make arrangements for evidence relating that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”
The
doctrine of constitutionalism simply insists that every activity done
in law must fall within the provisions of the constitution, or, put
the other way round, must not derogate from any provision of the
constitution, to say the least. As Professor Vile rightly pointed out
in his book, Constitutionalism and Separation of Powers:
“Western
institutional theorists have concerned themselves with the problems
of ensuring that the exercise of governmental powers, which is
essential to the realisation of the values of their societies, should
be controlled in order that it should not itself be destructive of
the values it was intended to promote.”
Furthermore,
an American commentator, R. Kay, had written:
“The
special virtue of constitutionalism…. lies not merely in reducing
the power of the state, but in effecting such reduction by the
advance imposition of rules.”
In
the context of the topic of this discourse, one is called upon to
examine to what extent the proposed virtual court proceedings,
despite its many perceived advantages, is in line with extant
provisions of the 1999 Constitution of the Federal Republic of
Nigeria (as amended), before considering the likely challenges and
vicissitudes that may be collateral therewith.
In
determining civil rights and obligations, the constitution expressly
and without exception forbids trial of matters anyhow else than in
public. See section 36(3) reproduced above. In criminal cases, the
constitution in section 36(4) prescribes public trial and in the
proviso thereof excludes certain situations whereupon the court or
tribunal being satisfied, certain person may not be allowed to
witness the proceeding and where such proceedings may be conducted in
private for the reasons listed in (a) and (b). It therefore becomes
easily discernible that the constitution intends the conduct of court
proceedings in public, even in judgments and rulings.
But
salient issues that agitate the mind include: to what extent does
virtual court proceedings qualify as trial in public and to what
extent does the constitution foresee virtual court proceedings?
In
resolving the issues raised in the preceding paragraph, it will be
apposite to juxtapose the actual proceedings that we are used to with
the novel virtual court proceeding already described in the
introductory paragraphs to this essay. In the actual proceedings, the
judge and court staff, counsel and clients physically appear in
court, sign cause lists and prosecute their matters. In criminal
matters, the police and correctional service officers play vital
roles in producing the defendants and taking them back into lawful
custody. The court and counsel must be properly robed as prescribed
by law. And that is the practice we are used to.
But
in the virtual court proceedings, as the name suggests, the need to
be physically present in court is dispensed with. Counsel stays in
the comfort of their home, connect the court with electronic gadgets
that can show their live image and the court’s, and conduct
proceedings.
It
is our humble submission that the constitution of the Federal
Republic of Nigeria did not envisage the situation of virtual court
proceedings, and so it could not have provided for it. The grund
norm copiously prescribed
trials to be in public. Even the provisions in provisos (a) and (b)
do not contemplate or in any way infer virtual court proceedings.
Proviso (a) talks about exclusion of certain persons from gaining
access to court proceedings in specified situations, whereas proviso
(b) talks about trial in private i.e. outside the open courtroom,
perhaps in the judges chambers.
There
is no way the provisions of (a) and (b) can be read to insinuate
virtual court proceedings, and this author holds the view that
virtual court proceedings is strange to the highest law of the land
which has explicitly stated how court proceedings should be conducted
and a judex
will be acting ultra vires
his powers as conferred by the constitution to conduct a virtual
hearing of a matter. Whenever a statute provides for a way of doing a
thing, that way and no other should be followed; and the express
mention of a thing is the exclusion of others. The constitution has
clearly prescribed what should be done and in what manner, this
author holds the view that the constitution has stated ‘a
fair hearing in public’.
Courts do not act in vaccuo.
More
Challenges of Virtual Court Proceedings
Aside
the paucity of constitutional guarantee for virtual court proceedings
in Nigeria, more challenges seem to bear to adversely affect its
success in our corpus juris
and society. It is said that before one sets out on a venture, good
judgment warrants that one takes a critical appraisal of the said
venture and see to what extent one is prepared for the challenges
that follow in order not to dissipate energy for nothing and like
Professor Vile said supra
“be destructive of the
values it was intended to promote.”
The likely challenges include:
Lack
of Adequate Facilities and Expertise
It
remains to be rather imagined than asserted how seasoned our judexes
and staff, even counsel, are to be able to adapt to the virtual court
proceedings. More worrisome is the availability of facilities that
will offer the virtual platforms. This author by this constraint
excepts the A-league and mega law firms with state-of-the-art
facilities and periodic training for their legal and para legal staff
that technological cum digital advancement has become their other
names; no, this author refers to the real VIP’s, those everyday
lawyers and law firms which make a living from the defence of
criminal defendants who have barely a dime or none at all to pay. How
will accused persons who are in custody be present in virtual
proceedings? How will the police and correctional service officers
discharge their duties? Or will some cardinal rules of criminal
jurisprudence be jettisoned? Even, most of our courts and judexes
alike do not even possess the wherewithal to embark on this venture.
How do we proceed with virtual court proceedings where e-filing of
court processes a gaping issue? So how ready are we?
Frauds
and Sharp Practices
We
live in a society and time of internet frauds and sundry activities.
The police and the Economic and Financial Crimes Commission have had
busy moments fighting, detecting and prosecuting the notorious yahoo
practitioners over the years, and yet there seems to be no close end
to that unwholesome vocation. A very vicious cankerworm eating deep
the root of law practice is that of sharp practice which has pervaded
the justice system in measures too numerous to count. Some lawyers
have excelled in sharp practices beyond perfection; while some
persons have already made names for themselves as wizards of the
Information and Communication Technology (ICT) industry and can
photoshop, crop, clone and even give life to non-existent ideas using
the computer and internet. A mixture of genius in ICT and disposition
to sharp practice readily spells
doom for a justice system that is not adequately fortified for this
mighty challenge. If with our manual and actual court proceedings,
sharp practices have faired this well, how much more in virtual court
proceedings where only a few know so much and the authorities can
hardly checkmate? Questions of tendering of documents, admissibility
and admission of evidence, etcetera, will definitely prove serious
waterloos.
Internet
Services Provision and Sundry Issues
We
live in a country of epileptic power and internet services provision.
The country’s consumer protection of citizens from the snares of
paid precarious public utility providers has been comatose. It is not
in doubt that most remote areas in Nigeria to this day are yet to be
reached in terms of internet services provision, whereas it is as
good as absent in some other areas that can detect signals from a
communication mast afar off. The place of functional internet
services in the effective running of virtual court proceedings can
only be likened to that of diesel to an engine, and where the
provision is below par? Your guess is as good as mine.
We
are constrained to state that granted the need is due for the
all-important baby that is virtual court proceedings, given the
present realities, it must however pass through its own gestation
period, lest we birth an evil child that will ruin the empire it was
sought to take over. Once it’s worth doing at all, it’s worth
doing well.
Uche
Amulu writes
from Maitama, Abuja. He is the Founder and Principal Partner of Uche
Amulu Legal.
Address:
No. 9 Osun Crescent, Maitama Abuja.
Email:
willsables@gmail.com.
Cell:
+234 806 424 0996
