By Oluwatoyin Bamidele, ONI
The outbreak of the Coronavirus Disease- (COVID-19) has brought about unprecedented global downturn and adverse impact on the Nigerian justice system and its activities. The pandemic had its first show on human stage towards the end of 2019 in Wuhan which happens to be an emerging business hub of China, this unprecedented disease outbreak is recorded to have caused the untimely death of not less than 185,434 persons globally and infected over seventy thousand individuals within the first fifty days of the epidemic. This virus was reported to be a member of the β group of coronaviruses and scientifically described as an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). There is no doubt that the outbreak of COVID-19 pandemic has a negative effect on the Nigerian Justice System, activities of judicial officers, legal practitioners, law firms and the Nigerian Bar Association at large and this paperwork seeks to consider the post Covid-19 pandemic challenges on both the Bench and the Bar and probable solutions to remedy the situation.
It is common news that the Nigerian Judiciary had made swift decisions to ensure the protection of justices, judges and staffs of courts and further undertook preventive measures on the spread of CORONA VIRUS (COVID-19) . The Chief Justice of Nigeria (CJN) and the Chairman of the Nigerian Judicial Commission, HON. DR. JUSTICE I. TANKO MOHAMMED, CFR, JSC had earlier directed all Heads of Courts by circular No. NJC/CIR/HOC/11/631 dated 23rd March, 2020 to suspend Court sittings for an initial period of two weeks from 24th March, 2020 except for the purpose of dispensing matters that are urgent, essential or time bound in line with the extant laws of Federal Republic of Nigeria.
A circular was further released to that effect on the 6th of April, 2020 , extending the suspension of Court sittings till further notice, given the lockdown measure put in place by Federal and some state governments to curb the spread of COVID-19.
Similarly, the Nigerian Bar Association has also put up measures to ensure the protection and welfare of the members of the bar, the chairman of the Nigerian bar Association Dr. Paul Usoro SAN had on 16th of April, 2020 announced the 18 (eighteen) men welfare committee to provide strategic insight on how to provide palliatives to indigent registered members of the Bar and also made provisions for online payment of the Bar Practicing Fee before the statutory March 31st deadline.
In the same light, the Lagos State Judiciary issued practice directions to guide remote hearing of court cases in the state to ensure that cases are heard and disposed of urgently. The Chief Judge, Hon Justice Kazeem Alogba remarked that the practice directions were made pursuant to Section 6 subsection 6, Section 274 of the 1999 constitution as amended, Section 87 subsection 1 of the High Court of Lagos 2015 and other enabling legislation. The guidelines which becomes effective from 4th of May 2020 makes reasonable provision for preparation and conduct of remote hearings, electronic filing and service of court processes, electronic payment of filing fees, remote hearings on Zoom, Skype, or any other video communication approved by the court, adoption of written addresses, and a notice of delivery of rulings and judgments. He added that the practice direction applies to new and urgent cases, pending cases involving urgent and time-bound applications such as bail hearings, fundamental human rights matters, rulings, judgments, and any other matter approved by the Chief Judge.
It is noteworthy that even though the governing authorities of the bench and bar had made laudable attempts to reduce the effect of the covid-19 pandemic on its members, they must also put up measures for the post lockdown challenges as failure to do so will have negative consequences on both members of the Bench and the Bar.
We will therefore consider some of the post Covid-19 pandemic on the Nigerian justice system which are but not limited to the following:
• Backlog of Pending Cases
The Nigerian judicial system has over time been known to have numerous pending cases before both the inferior and superior courts of records taking cognizance of the inadequate number of judges in Nigerian courts, Cases today certainly take longer time to be finalized leading to adjournment upon adjournment before verdicts are finally passed unlike in cases where there are adequate number of judges to reduce the average workload per judge.
It is glaring that despite the volume of cases, the courts has had to proceed on an unavoidable indefinite suspension of judicial activities since the 23rd of March, 2020 and as a result parties in pending cases would show up around court buildings immediately after the lockdown is over.
In consideration of the prevailing information about the inadequate number of judicial officers in Nigerian courts, it is an infallible proposition that cases will certainly take longer time to be finalized and verdicts passed.
• Plethora of Cases from the effect of the pandemic
The Covid-19 pandemic is generally noted to have negative effect on all spheres of life and the court would expect to witness a massive spring forth of cases ranging from force majeure clauses in contracts, employment relations, inability to execute contracts due to the lockdown, lease and tenancy disputes owing to inability to pay rent, approvals of mergers and acquisition owing to inability to meet up with FCCPC thresholds by corporate bodies, declaration of solvency, winding up proceedings, and cases of gender violence and assault during the lockdown.
• Suspension of large gathering
One of the many challenging effects of the Covid-19 pandemic on the Nigerian Bar and Bench is the continuous restriction on large gathering and this will inevitable reduce the number of persons in court rooms if the social distancing preventive measure is observed, the Annual General Conference of the Nigerian Bar Association may not hold owing to the expected number of attendees if Nation is still unable to defeat the pandemic before August 2020, and essential National Judicial Council meetings where sensitive issues with regards to the governance of the Judiciary are discussed may also not be held as expected.
• Technological Deficiencies
The former chief Justice of Nigeria (CJN) Walter Samuel Onnoghen during the previous 2017/2018 legal year of the Supreme Court reiterated the need to ensure progressive upgrade of the judiciary especially in areas of administration, practice directions, independence of the judiciary and contributing significantly to the fight against corruption. He added that
“The Rules of practice and procedure should make provision for concessionaires to handle the service of court processes and documents. Also, the Rules of Practice and procedure should provide for e-filing to be done either by courts or by external management service providers, there is a need for regular updates of courts’ websites, and there must be computerized records in each court.”
The former CJN said entries must also be made and posted on the website of the judiciary, where information on the type of cases, progress made, judgments etc., can be accessed anywhere in Nigeria, weekly, monthly or quarterly.
It is unfortunate that this astute recommendation has still not been completely implemented and the judiciary is continually faced with the challenge of low Input of Computer Technology.
In mitigating challenge of numerous backlog of cases, it is my humbly proposition that more judicial officers should be appointed for speedy dispensation of justice, willful delay tactics and unethical practices by counsel to parties to prolong cases and make such cases drag through ages should be discouraged. Furthermore, there should be statutory time for every case before the court according to its peculiarity.
Heads of superior courts should review the current rules of courts and practice directions in order to accommodate speedy administration of justice and further enlarge the scope of the fast track procedure.
In the case of Chief John Oyegun v. Chief Francis A. Nzeribe , the Supreme Court of Nigeria held that the heads of every cadre of superior court shall have the power to make Rules of that Court. It is trite law that the power to make Rules of Court at the Supreme court, Court of Appeal, and at High Court of various states and the FCT are vested in the Chief Justice of Nigeria, President of the Court of Appeal and the Chief Judge of the States and FCT respectively.. The relevant sections of the 1999 Constitution of the federal republic of Nigeria are Sections 236, 248 and 274.
Provisions for virtual conferences, webinars, frontloading of evidence electronically, and electronic trials should be made in the Rules of Courts, practice directions, Nigerian Bar Association guidelines and other procedural laws.
With e-justice and e-meetings, case management will be automated, forms that simplify and streamline court proceedings will be accessible to users online, and payment of fees made through dedicated websites to reduce corruption.
The Lagos state Judiciary made astute attempt in line with the aforementioned recommendation however, I found some of the provisions in the guideline issued by My Lord the Hon Chief Judge of Lagos not to attain fundamental standards for the following reasons:
(1) The preamble states the scope of cases to which the Practice Directions apply and these includes cases which are urgent or time bound. The scope of the guideline should be extended to all cases as we do not know when will pandemic will be conquered and an attempt to leave out other cases except for urgent and time bound cases will have far reaching effect on the Nigerian Judicial System.
(2) The guideline made no provision in situations where electronically filed processes fail to be delivered due to network error or where it was erroneously sent to a wrong channel or platform.
(3) The guideline in paragraph 6 and 7 made provision for electronic filing and no provision is made for electronic signature where a person is unable to do same physically.
(4) The guideline made no provision for the attendance of public in proceedings before the court in line section 36 (3) (4) of the constitution of the Federal Republic of Nigeria.
It must be noted that there is no legal or statutory framework for electronic trials yet and both the legislature and Judiciary are expected to concordly work towards the enactment of legislation to address the aforesaid in order to avoid multiple appeals cases before the appellate courts.
Courts and NBA branches should also ensure compliance with Nigeria Centre for Disease Control (NCDC) measures for prevention and control of the Covid-19 pandemic by observing physical distancing in court rooms and in NBA National/branch meetings, provide hand sanitizers in all court rooms and compulsory use of the face mask.
It is applaudable that the Supreme Court is moving towards complete utilization of information technology; however there is need for all law courts and Judicial Officers in Nigeria to be ICT compliant, provision of consistent power supply and employment of the services of more shrewd ICT experts to assist the Judiciary and members of the bar is also necessary.
Information and Communication Technology (ICT) will enhance the justice system by ensuring that information is digitally received, controlled and passed on adequately. With this measures put in place Processes filed in court will be finalized, ready on demand and transfer of data and information will not be desegregated. It is however further advised that measures must be accompanied by enhanced capacity of personnel and investments in cyber security.
The goal of every purpose driven society is progress which allows for unrestrained growth, compliance with rule of law and legal security for individuals, and even development of its judicial system. The Covid-19 Pandemic is a threat to human existence and particularly on the Nigerian Justice system at large and proactive steps in mitigating its effect on both the Bench and the Bar highly required. As patriotic citizens and ministers in the temple of Justice we are burdened with the responsibility of ensuring compliance with the Rule of Law.
Oluwatoyin Bamidele, ONI
Lagos State Judiciary remote hearing of Cases (Covid-19 Pandemic period) Practice Directions, https://www.channelstv.com/2020/04/28/lagos-judiciary-issues-guidelines-on-remote-court-sitting/
Federal Competition and Consumer Protection Commission
Chief John Oyegun v. Chief Francis A. . Nzeribe (2010) 1 SC (Pt II) 1
Lagos State Judiciary remote hearing of Cases (Covid-19 Pandemic period) Practice Directions