Virtual court proceedings child of necessity

By Chinyere Omeire

Global pandemic, Novel Coronavirus (COVID-19), and its attendant restrictions have resulted in some new ways of doing things as governments, organisations, groups and even individuals struggle to survive.

In Nigeria’s judiciary, lockdowns following  outbreak of the pandemic on Feb. 27, 2020, crippled justice administration as court activities nationwide were halted in an effort to curb the spread.

Many lawyers and litigants, thus, decried  delay in accessing justice.

Thinking out the box, the Chief Justice of Nigeria (CJN), Tanko Muhammad, gave a directive to heads of courts at federal and state levels to adopt virtual court sittings to ameliorate the difficulty in justice dispensation.

The directive was, however, challenged by the attorney-general of Lagos State at the Supreme Court.

The attorney-general prayed the apex court to determine whether, having regard to Sections 36(1), (3) and (4) of the 1999 Constitution (as amended), the use of technology for remote hearings of any kind by the Lagos State High Court or any other courts in Nigeria in aid of hearing and determination of cases, were constitutional.

In July, the Supreme Court struck out the suit as a team of justices led by Olabode Rhodes-Vivour held that virtual court sitting was not unconstitutional.

The CJN and chief judges of states consequently  issued practice directions, allowing virtual court sittings mostly on the consent of parties involved in the suits.

This child of necessity – virtual court proceedings – enabled some courts to do peripheral activities while others could not, due to lack of capacity to adapt to the procedure.

Many lawyers have hailed judicial authorities for the virtual court system, describing it as a child of necessity.

According to them, the lockdown experience exposed inadequacies in the country’s judicial system and showed the need to embrace technological solutions and interventions.

Mr Osuala Nwagbara, the Managing Partner of Maritime and Commercial Law Partners, Apapa, Lagos, believes that a technological-driven judicial system will facilitate justice delivery.

Nwagbara says that Nigerian lawyers have been yearning for an automated system of filing processes in courts.

Nwagbara adds that the lawyers also yearn for adjudication of some matters online.

He argues that the constitutionality of virtual court proceedings is influenced more by the exigencies of the moment.

He says  virtual court procedure is not unconstitutional since the 1999 Constitution provides for an aggrieved persons to ventilate their rights through the courts and for accused persons to be given facilities to defend themselves.

According to the lawyer, virtual court hearing is a procedural way to ventilate such rights.

He insists that the procedure does not rob anyone of the right to be heard.

“On the contrary, not to devise safe court proceedings will amount to shutting people out of their rights to ventilate their grievances or defend themselves,” Nwagbara argues.

He is convinced that virtual court system does not make a complainant a judge in his own cause but follows the age-long tradition that an unbiased and independent umpire, a judge, sits and resolves disputes or complaints.

Mr Chibuikem Opara of the Justification Law firm, Ikeja,  also argues that the Supreme Court’s judgment was influenced more by the exigencies of the moment than the Constitution.

He suggests that laws should be applied  liberally while rigidity and harsh interpretations that may  result in hardship should be avoided.

Opara calls for amendment of the Constitution to expressly embody the Supreme Court’s decision.

Mr Chris Ayiyi, Principal Partner, Ayiyi Chambers, Apapa, Lagos, also says the court judgement was necessitated by the situation at hand.

He argues, however, that the cost effectiveness of the virtual court sitting was not considered.

Ayiyi believes  that the apex court should have considered the cost of virtual proceedings on ordinary people.

Mediation advocacy experts including  the Messrs Valentino Buoro and Adeyemi Akisanya, are  of the opinion that certain matters be should be referred to mediation for peaceful and amicable resolution through  multi-door courthouses.

They note that  COVID-19-induced lockdown  was unanticipated and suddenly disrupted routines.

According to Buoro, online mediation seeks to ease the imbalances.

He advises parties in suits to embrace Alternative Dispute Resolution (ADR) and resolve most of their cases through mediation or any other ADR process.

Akinsanya notes that ADR does not require bulk documentation like litigation.

“It is faster and consensual,” he argues.

Analysts believe that  administration of justice in Nigeria requires more intervention and more infrastructure to  global trends.