Oluadamilola Adebusoye
On Tuesday, A seven-man panel of the Supreme Court led by Justice Olabode Rhodes-Vivour ruled that virtual court sittings are not unconstitutional, null or void.
This decision was made during the hearing of separate suits filed by the Attorneys-General of Lagos and Ekiti states on the adoption of remote hearings by judges in their states. According to the panel, the suits filed by the Attorneys-General of both states were speculative as the suits did not disclose how virtual proceedings had negatively affected the interest or right of anyone.
As of today, virtual sitting is not unconstitutional
Justice Rhodes-Vivour
Members of the panel dismissed the fear said to be entertained by many judges as to the constitutionality of remote hearings in the country.
They maintained that the Chief Justices of the states that had issued practical directives to provide for virtual sitting when convenient had the duty to enforce the directive.
Moyosore Onigbanjo (SAN), Lagos State AG, and Olawale Fapohunda, Ekiti State AG have thus withdrawn the suits after members of the apex court panel described the suits as speculative.
Virtual Courts in Response to the Pandemic
The Covid-19 pandemic has continued to interrupt traditional methods of doing things, leading to the introduction of novel approaches. To ensure that the justice system does not come to a standstill due to the lockdown, some senior Lawyers wrote to the CJN to consider adoption of remote court sitting.
In his capacity as the Chairman of the National Judicial Council (NJC), the CJN set up a 10-man committee headed by Justice Olabode Rhodes-Vivour. The committee was to come up with urgent practical strategic measures to ensure courts continue to function despite the lockdown.
After much deliberations, the committee among other recommendations in line with federal government’s guidelines for taming the spread of COVID-19, recommended the use of technology by way of virtual sitting in court proceedings, Both the CJN and NJC approved of it.
The National Judicial Council (the NJC) released Guidelines for Court Sittings and Related Matters in the Covid-19 Period (the Guidelines). The Guidelines are intended to aid the various courts to conduct proceedings remotely in order to meet the ends of justice.
In particular, these guidelines deal with time-bound cases, matters not requiring oral evidence (except those of extremely urgent nature) and matters ripe for judgment. The rules also aim to ensure the safety of judicial officers and workers, legal practitioners, litigants and the general public.
The practice directions state that cases for virtual proceedings shall be stated on the Cause List, posted on the court’s website and communicated to counsel and parties, either by e-mail, WhatsApp, text messages or any other electronic means. It also allows for Service of court processes to be effected by e-mails, WhatsApp or as may be directed by the court. The printout of the same shall be sufficient proof of service.
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.
Justice John Tsoho, Chief Judge of the court
Nigeria’s Maiden Virtual Court Session
The first virtual court sitting in Nigeria was held on May 4 2020, at the Ikeja High Court, Lagos. The outcome of that case was the sentencing to death of a driver, Olalekan Hameed, for the murder of 76-year old Mrs Jolasun Okunsanya, on December 1, 2018.
In line with Lagos State Judiciary Remote Hearing of Cases COVID-19 Pandemic Period Practice Direction, the court session was held online via a video app, Zoom, between the hours of 11am and 2pm.
The judge, defendant, his team of counsels, the prosecution team, and all witnesses participated in the session remotely from different locations via the Zoom app.
At the conclusion of the session, the judge gave the verdict, “The sentence of this court upon you, Olalekan Hameed, is that you be hanged by the neck until you are pronounced dead and may the Lord have mercy upon your soul. This is the virtual judgement of the court.”
Speaking about this first virtual session, Ebun-Olu Adegboruwa (SAN), said the move will help in making the administration of criminal justice in the country more efficient.
The proceedings of the Lagos High Court conducted online otherwise known as remote courts is revolutionary and the same thing has happened today at the High Court of the Federal Capital Territory in Abuja where three courts also sat using virtual technology. So, we commend their lordship because this will assist in achieving smooth and effective administration of justice.
Ebun-Olu Adegboruwa (SAN)
The Legality of Virtual Court Proceedings
It is common to witness resistance to change when these changes initiate a new order of things. The use of technology in virtual court sittings and the legal system is a contrast from the traditional system which the Nigerian legal system has previously relied on.
Following the decision to approve virtual court sittings, many have resisted the decision as unconstitutional. Judges who have expressed their reservations over this decision hinge their opposition on Section 36 (3) and (4) of the Constitution which provide that:
(3) 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.
(4) 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…
They question the acceptance of a court hearing through Zoom or Skype as been considered to be held in a public place. Majority question the presence of infrastructures to allow the conduct of virtual court proceedings.
The Chief Judge of Oyo State, Justice Munta Abimbola, says the state has no infrastructure in place for virtual court proceedings
We don’t have any infrastructure that will make virtual court proceedings possible, but we make use of other procedures so as to open the court during this COVID-19 period
Justice Munta Abimbola, The Chief Judge of Oyo State
Others held that court proceedings or hearings conducted via social media platforms or technological innovation would be deemed illegal until a bill is passed into law that indicates otherwise. The Supreme Court says an amendment bill is already been deliberated upon by the House of Assembly.
Great Innovation, Terrible Infrastructure
Virtual court sittings come with a number of advantages. It makes it more convenient for the parties involved in the court case to participate from their various locations especially during pandemics such as the COVID-19 outbreak.
Virtual court sittings could also eliminate huge transportation costs especially involving witnesses from different States or Countries.
With proper documentation now enforced over the internet, Tech-enabled legal research would be faster, more convenient and more transparent
It will tackle the hydra-headed problem of delay in the judiciary and help in eliminating corruption because e-files will make it more transparent for litigants and lawyers to pay their money directly into the purse of the judiciary rather than the current system whereby court official have become more like businessmen at the expense of Justice
Ebun-Olu Adegboruwa (SAN)
However, without the right technological tools and skills invested in the adoption of virtual court sittings, it poses a number of challenges.
Many of the judges, particularly at the high court level and the Court of Appeal, were of the view that there are constitutional hurdles to cross before Nigeria can adopt a system of remote hearing of cases.
They opine that some expected judicial outcomes from some of these irregular provisions of virtual court proceedings online may not stand the test of the law, as they are likely going to create loopholes which parties could exploit on appeal when the trial is not in their favour
We need to amend our procedure rules that never contemplated proceedings like this and make adequate proceedings for some of the things that would come up during virtual proceedings
Monday Ubani, former 3rd Vice President of the Nigeria Bar Association
In other to carry out hybrid or fully virtual court sittings, it is expected that the Nigerian courts provide fast-speed and reliable internet connectivity. Remote participants of the process need to have hardware devices such as desktops, laptops, tablets and smartphones.
For decades, poor power supply remains one of the major factors affecting digital progress in various sectors across Nigeria. Interruptions in power supply challenges the virtual court system.
Internet connectivity is another major challenge in Nigeria. With a significant number of High courts located in remote places, this challenge is heightened. The level of broadband penetration in Nigeria is still quite low compared to that of other countries. Because of this, there may be lags in data speed for use to process information. The possibilities of an unprepared counsel to feign poor connectivity is not far-fetched.
Lack of competencies among legal practitioners in the use of online resources and digital platforms could also discourage the adoption of these virtual court sittings.
A fourth overlooked challenge which was raised by Ebun-Olu Adegboruwa (SAN) is that of internet security.
The capacity of fraudsters to hack into sensitive political cases, cases involving husband and wife and custody of children, cases involving distribution of estates of people who could become public figures and then the issue of authenticity of the document uploaded such as C of O, WAEC, university certificates etc. How do we cope in this age of manipulation and Photoshop?
Ebun-Olu Adegboruwa (SAN)
To check these challenges, it calls for adequate funding. The different tiers of government have to be willing to cater for the increased budget that is associated with these innovations. Investment decisions such as purchasing laptops with long battery life, investment inverters should be embraced.
Across the world, other countries including USA, Australia, Canada and Kenya have embraced court hearings through video conferencing and teleconferences.
The successful implementation of virtual legal proceedings in these countries challenges the Nigerian Legal System to make adequate investments to better integrate technology into the countries Legal System.
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