By Olumideajayi & Kolawoleomoyajowo
INTRODUCTION
The purpose of the law and relevance of the Justice delivery
system is measured by its accessibility, affordability and
profitability to the public at all times. This is because, just as
the air is to a man, so isthe law and its apparatuses to any
society at any given time. Further to this, the law cannot be said
to be in force when the structures that anchor its functionality is
handicapped. That is, the existence and the efficacy of the law are
contingent on the existence of structures and systems that
administer it, dispense justice and midwife orderliness in the
society. Hence, the outbreak of a pandemic or crisis that poses a
severe threat to human life will not suffice to suspend the
functionality of the court system; rather it challenges the court
and its administrators to devise a dynamic model through which the
objectives of the law can be realized.
It is therefore the appreciation of this fundamental concept
that drove countries such as the United States of America, United
Kingdom, India and even, the republic of Kenya to develop or adopt
digital structures for administering the law and dispensing justice
through virtual technologies, as proactive response to surmount the
challenges posed by the measures to curtail the spread of the
dreaded coronavirus disease. Thus, to minimize hazardous exposure
to health risk, the business of justice delivery must be shifted to
the cyberspace and sustained even after the ravaging of the
pandemic abates. This is because the adoption of technologies for
conduct proceedings is an amazing breakthrough to ease the justice
delivery system. It is therefore interesting to note that countries
that have erected digital structures for Online Dispute Resolution
record more conformity and compliance to lockdown directives and
enforcement of measures. Also, these countries have further
demonstrated that it is essential to paddle the sustenance of the
economy and the survival of the nation into a new world order
driven and powered by technologies and artificial intelligence. In
the Nigeria scenario, the traditional structures for justice
delivery system have been hibernated and sadly, the administration
of justice is on a substantial lockdown.[i]
Little wonder, Nigeria tops the table of nations with substantial
non-compliance to lockdown directives, failure of measures to
contain the transmission of the dreaded coronavirus disease and a
nearly economic meltdown. This distasteful record cannot be
dissociated from the probable causal factor that the cessation of
the administration of justice system makes the enforcement of the
covid-19 curtailing measures to be difficult, if not impossible, as
evidenced by the inability of the government to successfully
enforce the lockdown measures in states like Lagos & Abuja. No
doubt, the efficacy of the law cannot be gainfully appropriated
when the court system is shutdown. In the heights of the
coronavirus pandemic in Nigeria, the online vis-à-vis digital
businesses are heavily patronized; some businesses are now
relocating to the cyberspace, commercial & noncommercial disputes
have arisen as a result of the lockdown which equally demand prompt
adjudication. Yet, the Nigeria judiciary seems insensitive to this
societal change.
However, the crux of this work is to critically examine the key
provisions of the 2020 practice direction of the High Court of
Lagos State on Remote hearing, commend the initiative of the Lagos
State Judiciary, identify the loopholes in the provisions and
charter a formidable pathway for the effective operation of remote
hearing via digital platforms. All the provisions are critically
analyzed and creative suggestions are made. This article is
fashioned to be thought provoking and to stimulate further debates,
rejoinders and ultimately, solid direction on the workings of
electronic service of processes and online proceedings in
Nigeria.
EXAMINATION OF THE KEY PROVISIONS OF THE 2020
PRACTICE DIRECTION OF THE HIGH COURT OF LAGOS STATE ON REMOTE
HEARING.
ELECTRONIC FILING SYSTEM
It is worthy of note that while paragraph 3 of the Practice
Direction provides for its objectives, Paragraphs 5 to 9 of the
Practice Direction made provisions for Electronic filing of Court
Processes for remote hearing. It is pertinent to know that filing
is a major component of commencing proceedings, whether civil or
criminal. As a matter of fact, it is the foundation upon which
proceeding is built. It is upon filing the processes thatsame are
being served on the concerned parties, and after which proceedings
are commenced properly. Paragraphs 5 and 6 of the practice
direction are to the effect that filing of Court Processes shall be
done electronically and received by the Court electronically, in
other words, via (a) Email and (b) Whatsapp. It further provides
the Processes should include the email address and phone number of
the Counsel and in event that a Party is not represented by
Counsel, his Email Address and Phone Number should be stated in the
originating processes. Although, the manual mode of filing is still
allowed where electronic filing is not possible.[ii]
Moreover, it is interesting to note that the practice direction
did not accept any other form or format in which the processes must
be, other than scanned copies of the processes in PDF formatting
style.[iii][1]
It might be said that the reason underlining the choice of PDF
formatting style and excluding others[iv] is
because of the tendency of loss or distortion of contents of the
processes while they are being exchanged via electronic means. But
of a truth, the rationale is because of the validity requirement of
affixing a seal on processes by counsel.[v] The
NBA seal is only made available in hard form. That is, there is no
electronic or digital seal for lawyers to affix on processes.
Hence, a counsel will have prepare the processes, print them out
and affix the NBA seal on it as though the processes were to be
filed physically. After the affixation of the seal on the hard copy
of the processes, the counsel will then scan each copy of the
processes in the order of their pagination and save the scanned
copies of the processes in a single-rowed PDF document. However,
electronic signature is recognized under our law and as such
counsel or party can affix an electronic signature on the
document.
Paragraphs 7 & 8 further provide for the power of the Chief
Registrar to assign designate officials for assessment of fees
payable on documents filed and the mode of payment, which is by
electronic transfer of filling fee into the designated account of
the court as shall be made available by the court registry.
Moreover, manual mode of payment is possible where there is a
difficulty making payment by electronic transfer. Hence, the
counsel or party will file the processes through email or whatsapp.
And the court registry will then assess the due filing fee and
communicate the assessed fee to the counsel or party via email,
text message or whatsapp. Then, the counsel or party will proceed
to make the electronic transfer and generate receipt or any other
evidence of payment. He is then required to scan the receipt or
evidence of payment and send it to the court registry who shall
then verify the payment. After verification of payment, the
processes would be deemed to have been filed and the suit is said
to have commenced. It is suggested that parties and counsel should
make the electronic payment through their bank mobile App so that
receipt of payment can be easily generated. The process of making
electronic payment would be easier and accurate if the judiciary
can set up a judiciary filing portal system connected to Remita so
that the process of payment can be instantaneously traceable and
verifiable automatically without the physical intervention of the
court registry. And immediately the portal system automatically
verifies the payment, the access to filing of processes will be
opened automatically and the counsel or party can file the
processes easily.
ELECTRONIC MODE OF SERVICING COURT
PROCESSES
One of the innovations heralded by the Practice Direction is the
introduction of electronic method of effecting service of process.
Paragraph 10 of the practice direction provides that the service of
processes shall be done by way of transmission through e-mail
address or through WhatsApp platform (that is, into the registered
account of the other party on whatsApp) or through such other
meansas it shall be directed by the Chief Judge. The working or
functionality of this electronic service mechanism is hinged on the
availability of the email addresses and phone numbers of both
parties and the Central operating system that will drive this model
is the technical unit of court’s registry who shall be responsible
forcollecting processes filed and effecting the service of same on
the other party.
It is very important to point out that the provisions of the
practice direction on service of processes is to complement and not
replaceOrder 9 of the High Court of Lagos State (Civil Procedure)
Rules & Practice 2019 in such a way that both rules can
successfully midwife the smooth operation of the system of online
commencement of a suit, its hearing up to the last stage of
judgment.To this extent, the radical changes introduced by the
practice direction needs to be meticulously tailored into the
principal rules of the High Court.
However, the remote service model still recognizes and retains
the existing requirement for filing a proof of service as it were
under the 2019 court rules. Hence, an affidavit of service stating
the particulars of how the service of the processes was effected on
the other party, through email or WhatsApp or otherwise, shall be
averred and filed into the court’s record.[vi]To
accomplish the requirement of filing a proper proof of service, the
same paragraph 12 demands that an electronic printout containing
the date and time that the service was received by the other party
must be exhibited (as evidence) by the affidavit of service.
It is noteworthy that time begins to run from the date that the
processes was transmitted through the email or WhatsAppby the party
effecting the service. By implication, if the process served is a
writ of summons to which the defendant must make appearance and
file his defence within 42 days, the time (that is, the 42 days)
begin to count from the very exact date that the court registry
sent the writ by email or WhatsApp. Thus, no consideration is given
for the date and time that when the other party had the receipt of
the processes, just in the similitude of the effect of service by
substituted means.
Undoubtedly, the Lagos State Judiciary has made a giant stride
by being the first to herald this progressive judicial transition
of proceedings to take advantage of technology in Nigeria and in
West Africa. Moreover, it is further commendable that the Lagos
State Judiciary attempts to simplify and ease the process of remote
model of service in order to avoid every possible technicality that
comes with the use of digital transmission of data. This is evident
in her adoption of WhatsApp as one of the means of effecting
service, being one of the most popular and patronized digital
platform of communication and exchange of information in Nigeria.
As commendable as these provisions are, they are not without
lacuna. The practice direction leaves so many vitals not provided
for. And these lacunas will trigger legal technicalities, legal
disputes and if not quickly amended, the purpose and goals of the
remote hearing will be clogged.
By the reason of the wordings of the provisions on service of
processes under the practice direction, there is no hesitation to
come to the finding that the practice direction disposes with the
requirement of PERSONAL SERVICE as applicable under the 2019 civil
procedure rules.[vii][2]
The court in several decisions has held that what constitutes
personal service is the physical delivery of the original or CTC of
court processes to the other party in person.[viii][3]
Of course, the 2019 High Court rules recognize service by email but
as a means of substituted service and not personal service.[ix] And for email to be used for service under the
2019 court rules, an application for leave of court to employ email
as a means of substituted service must be filed. But the
implication of paragraph 10 of the practice direction on remote
hearing is that the status of service by email has been upgraded
from being a means of substituted service to a means of personal
service. To buttress this analysis, paragraph 11 of the practice
direction regards service through email and WhatsApp as good and
sufficient service.This is quite commendable considering the
realities of this technological ageand the need for the law to
reflect that dynamism. The Chief Judge of the Lagos State High
Court, respectfully, should have made it clear in the practice
direction that service through email and whatsapp are now deemed as
personal service. This analysis also affects and relates to service
of processes on corporate bodies. Hence,serviceof court processes
through the email or whatsapp of any of her director, secretary, or
principal officer would be sufficiently regarded as a proper
service.[x] This is because section 78 of the
Companies & Allied Matters Act had provided that court processes
are to be served on the company in the manner provided by the rules
of court.
Ordinarily, the Lagos State High Courtrules 2019 determine who
is to effect service of processes, namely: the sheriff, deputy
sheriff, bailiff, special marshal, other officer of the court,
registered chamber, and courier company or process servers.[xi] Bearing in mind that the aforementioned
persons are likely not to be savvy in the use of electronic
devises, there is no doubt that the court would have to engage the
service of computer skilled bailiff or sheriff (e-bailiff or
e-sheriff) to completely discharge the onerous task of receiving
and serving court processes through electronic means. Even though
email and whatsapp are commonly used, there is still possibility of
loss of data, spam storage or failure in the course of transmission
due to the technicalities associated with these systems all owing
to internet technicalities. For these reasons, mischievous parties
or crafty counsel can take advantage of that susceptibility to deny
the receipt of processes served.
The need for highly competent process servers cannot be
overemphasized. This is because service of processes is so
fundamental such that if a party is not served with processes, the
court will have no jurisdiction over him or competency to decide on
that process.[xii][4]Hence, having competent
hands on desk will further engender the generation of an accurate
electronic printout to be exhibited with the affidavit of
service.[xiii][5]
Paragraph 12 demands that the service of the processes must be
proved by an affidavit which must exhibit an electronic printout
detailing the date and time which the processes were received by
the other party. The essence of this provision is firstly to
authenticate that indeed service was made and secondly, to know
when it was received by the other party as well as determining
whether the receiving party delayed in responding.
There is no doubt that there will be possibility of service to
be disputed by the other party especially on the account of date
and time of service as well as the accuracy of the content of the
electronic printout as required under paragraph 12. To resolve
this, the test of admissibility under section 84 of the Evidence
Act would be invoked. Who is in control of the electronic
devicewith which the service was made; which electronic device was
used; how the processes were sent, the accuracy of the electronic
device and the content of the printoutetc would be needed to be
ascertained. This requires a reasonable measure of computer
literacy which the court’s sheriff, bailiff etc may not be
proficient thereto. If error or default is discovered in the
accuracy of the electronic device and the electronic printout as
regard service of processes, the hands of the court would be tied
to herself because it has been held in several cases that the
default on the part of the court’s registry or court officials
cannot be visited on parties to suit.[xiv][6]But the overall effect
any default on electronic service traceable to the court official
who sent it is that the pace of the proceeding will be delayed.
To surmount this problem, it is strongly suggested that after
serving a process via whatsapp or Email address, the court official
in charge should further contact the party or counsel served
through direct phone call informing him of the service of the
process on him. Also, the party so served should be made to send an
acknowledgment of receipt of the process immediately back to the
court official so that it could be filed to ascertain the date and
time the service was received by the party. It is however
disheartening that the practice direction did not make provision
for a party to make and return an acknowledgement of the receipt of
a process via same electronic means. Rather, paragraph 12 states
that the electronic print out as proof of service which is to be
generated by the person that served the process that is the court
official and exhibited on the affidavit of service to be filed by
the process server.
The question that arise from that requirement for the content of
the electronic printout by the court server is: How can the
date and time when an information (court process, in this case)is
received by the receiving party(the party being served the
process)be available to the knowing of the sender (process
server)without the receiving party disclosing it?It is
therefore noteworthy that as far as electronic mailing system
(email) is concerned, the sender of an information cannot know the
date and time of delivery of the mail. This is because all that
would be displayed on his electronic device is the date and time
when the information was sent and not otherwise. But for service of
process by whatsapp, the ordinary setting is such that when the
recipient receives the information (court process), a blue-coloured
signal in the form of a mark would be revealed but that settings
can be adjusted not to display in that ordinary manner. With this
water-loose provisions, controversy is bound to arise, as the
failure to insert the return of acknowledgment of receipt of
service by the party served, is a volatile lacuna in the practice
direction.
Furthermore, by reason of Order 6 rule 1 & 6,Order 11 rule
2(1)[xv]as well as paragraph 5 of the
practice direction 2020, only the claimant and defendant’s
telephone number and email address or those of the counsel are
required to be endorsed on the processes. Of course, while the
claimant is reasonably expected to know the contact address and
phone number of the defendant and required to endorse same on the
originating processes but it is not all the case with the email
address of the defendant, in all circumstances. Some parties may
not even have email addresses as well as a registered WhatsApp
account. To circumvent this difficulty associated in getting the
email address through which service of the process can be made, it
is suggested that the court registry should place a phone call to
the defendant to inform her of an action commenced against her and
that she is to provide an active whatsapp account number and email
through which processes can be served on her.
Moreover, where is discovered that the electronic service is
made impossible by reason of unavailability of phone number and
email, genuinely or borne out of the intention to evade service,
then service by substituted means is to be done either by way of
newspaper publication or physical delivery in the last known
address of the defendant. To buttress this, it could be gleaned
from the wordings of paragraph 10 that the possibility of a service
by substituted means was contemplated through the statement,
“…service of court process may be effectted by email,
whatsappor as otherwise directed by the
court”
Lastly on the service of processes on the practice direction,
paragraph 13 says that time begins to count from the date and time
when the processes are served via electronic means. It is
noteworthy that so many lawyers have argued against this provision
on the ground that the provision did not take into consideration
the possibility of technical errors or default on the part of the
server which renders the delivery of the processes to fail. As
plausible as this argument might appear, no reasonable and
meticulously drafted rules of court or even law would place the
counting of time on when the processes are actually received by the
party so served, as far as electronic means of service of process
is concerned. Electronic mailing systems are presumed to be
instantaneous, even though rebuttable. Besides, it would be easily
susceptible to fraud and evasion of service if the rule as to
counting of time is contingent on the actual receipt or delivery to
the other party. It is therefore our strongly held opinion, in
support of the spirit and letter of paragraph 13, that the
determination of time should be on the date and time it was
actually sent, if and only if our suggestions as to the workings of
an electronic means of process service is adhered.
Further, it is instructive to point out that the provision of
paragraph 13 as discussed above does not inhibit the other party
(acclaimed to have been served on certain date & time) to file a
counter affidavit to the affidavit of service under paragraph 12,
with averments that he was not properly served or that he was not
in the receipt of the processes at the date and time so specific in
the proof of service. He is so justified to do that after all, that
he received the processes on the date contained in the proof of
service (electronic printout) is a presumption that can be
rebutted. On this point, it is necessary to make a rejoinder of
opinion on the interesting but amusing submission of some
commentators, who in the process of attempting to justify why the
other party can disprove of the receipt of the processes on the
very day it was sent, opined thatA combined reading of section 145
and 153(1)&(2) of the Evidence Act, 2011 can be utilized to
create a rebuttable presumption of fact that the electronic
message/court documents were received on the day it was sent.As
much as the intention above is known and the rescue mission that he
was devising is appreciated, we respectfully submit that his
opinion as quoted above is misleading and a faulty interpretation
of the purpose of section 153 of the evidence Act. The essence of
section 153 is to create a presumption on the content accuracy of
electronically generated documents (that is, whether the documents
sent and that received contains same content). And to rebut that
presumption the test laid down in section 84(2) & (3) of the
evidence Act must be followed. Hence, we submit that there is no
provision in the evidence Act that touches on the presumption that
messages sent electronically is received electronically. But
simply, then the other party still has that opportunity to dispute
the imputed time and date for receipt as a fact that can be
disproved by proving a contrary fact.
PREPARATION AND CONDUCT OF ONLINE
PROCEEDING
The two major electronic platformswhere the court will conduct
her proceeding are zoom and skype for business.[xvi][7]
However, the court may also approve the use of any other video
communication method. This is possibly because to hold the
proceeding or for attendance and audience purposes, the capacity of
the zoom or skype may be limiting. So, the court can approve of
other video communication platform with better coverage capacity
and accessibility. It is noteworthy that parties or the counsel and
the registry of the court must liase properly as to the scheduling
of the proceeding and the suitability as well as the availability
of facilities to support access to the online proceeding.[xvii][8]
Hence, the counsel on behalf of the parties will have to
adequately engage the registry as to date & time when the
proceeding is to be fixed. Also to be discussed is which of zoom or
skype for business should be use but ultimately, it is for the
court to give direction as to the appropriate method of video
communication to be adapted.[xviii][9]The flexibility of this
provision with respect which method of video communication is used
is quite commendable. It will enable the court to keep adopting
better and improved video methods that will enable easy
accessibility and improved suitability. Indeed, the practicality of
this mechanism is dependent on the affordability of the necessary
facilities by both the counsel and parties or the possibility of
the party to be with the counsel so that a joint facility could be
used.
But the case is not the same in a proceeding for bail
application or a trial of a criminal suit where the defendant is in
custody and possibly poor. Because of the conditions of our
correctional centers and police stations, the defendant is likely
not have access to video communication facilities in order to
participate in the remote hearing. Hence, it is strongly suggested
that the correctional service and police station should be equipped
with adequate facilities to support and access designated
electronic platform for the court proceeding. In the alternative,
the correctional service should mobilize the suspect to the office
of his counsel so that the defendant can access his counsel’s
facilities. This would avail the defendant the opportunity of being
properly guided by the counsel in the course of proceeding which
might not be possible if the defendant and counsel are apart. If
the correctional service is properly equipped with the needed
digital facilities for remote hearing, the defendant should be
given the option of requesting the physical presence of his counsel
with him for strategic reasons so that both can jointly access the
remote platform using the same facility.
Since the defendant would not be in the physical courtroom, the
essential requirements such as the defendant being in the dock or a
witness being in the witness box are another phase of hurdle which
the practice direction did not provide for. It would not be
surprising when an appeal is brought to court challenging the
conviction of a defendant on the ground that his arraignment is
defective as he was not placed in the dock while taking his plea.
Or, that the oral evidence of the witnesses is invalid and
inadmissible because the witness is not placed in the witness box
while giving his testimony. We strongly opine that the challenges
as posed above are mere formal technicalities that should not have
the weight to affect the validity of a proceeding, in the light of
the virtual realities where physical court structures are absent.
The stream of justice should not be clogged by such formalities but
one wonders while the practice direction requires counsel to be
properly robed-a colonial antiquity.[xix][10]While one is prompted to
suggest that the Chief Judge should amend the practice direction so
that wherever the defendant is when being arraigned or where the
witness is when being examined shall be deem to be the dock and
witness box respectively, the validity of such a provision in the
practice direction without an amendment of the relevant laws on
criminal procedure might be impugned.
In any case, where the possibility of holding an online
proceeding is not feasible, maybe owing to unavailability of
suitable facilities to support the remote hearing on the part of
the party or counsel or even the court, an adjournment would be
order.[xx]But after the adjournment, what
will happen? Will the court revert to the traditional courtroom
proceeding? Or will the court take responsibility for providing
facilities for counsel and parties? Indeed, while the court has the
responsibility to ensure the availability of a courtroom for
proceeding, it is the personal responsibility of the parties and
counsel to walk into the courtroom.[xxi][11] In that similitude, if
the court makes an arrangement for a space on zoom or skype (for
business) to hold proceeding, save for some instances, it is the
correlative personal responsibility of the parties and counsel to
afford facilities that will enable them access the platform.
Commendably, when a remote hearing would be conducted for a
particular case is to be stated on the cause list which would be
made available on the judiciary’s website and efforts shall be made
to communicate it to the counsel or parties directly through email,
whatsapp or any other means of communication.[xxii][12] And while proceeding is
ongoing, the court shall give direction on the use of the audio and
video tools in order to avoid technical problem or undue
disruption.[xxiii][13] To this extent, there
is still a possibility of a person connected to the remote hearing
platform to be charged and punished for contempt in facie
curiae[xxiv][14] for tampering with
the audio and video tools in such a way that it disrupted the flow
of proceeding.
One of the great benefits that online proceedings usher is that
it eases the court’s assiduous task of recording proceedings in
handwriting. So, this remote hearing enables the court to
automatically record the proceedings on her electronic
device[xxv][15] which can be later
transcribed into prints through electronic means. Hence, the court
would rather pay due attention to the arguments of counsel,
demeanor of the witnesses and that of the defendant. Paragraph 22
states that: “Recording of proceedings by counsel and or
parties shall only be with the leave of court.” It is
submitted that the intention of this provision is that the
electronic recording of the proceeding cannot be done by anybody
except parties or counsel, in which case, the leave of court is
necessary to be sought and granted. It is doubtful if the provision
would be construed to mean that the counsel or party would need to
seek the leave of the court even before they note down certain
portion of the proceeding by handwritten (statement of a witness
during examination, plea of the defendant during arraignment or the
point of argument of an opposing counsel). Ordinarily, the court
does not allow the audio or video recording of her proceeding
except in rare cases of which the consent of the court is sought
and the face of the judge(s) is hidden. There is therefore no doubt
that person connected to the remote hearing cannot be physically
monitored or restrained from audio or video recording of the court
proceeding, being one of the susceptibilities of online
proceedings. What can be done by the court in this regard? It is
submitted that this can be curtailed if the court employs video
communication platform where it is possible to disable any
downloading or recording function, just as in YouTube.
Moreover, due attention needs to be drawn to paragraph 14 of the
practice direction which states that counsel or parties are to
indicate their voluntary participation in the remote hearing
through official mail to the court. It is opined that the rationale
behind this provision is that counsel or parties who cannot afford
the facilities to participate in the remote hearing should so
indicate so that the court can devise how the case would be
heard.But the wordings of the provision, prima facie, give counsel
and parties a blank cheque to decide whether to participate in the
proceeding or not, on the account of any excuse. This lacuna is
quite disturbing because in both civil and criminal proceedings,
the law demands the attendance of parties and counsel, the failure
of which there are consequences for.[xxvi][16]
Lastly, paragraph 24 of the practice direction retains the
applicable rules and procedure as to the adoption of written
address as applicable under the 2019 civil procedure rules of
court, the Magistrate Court rules and the administration of
Criminal Justice Law. Also, judgment shall also be delivered
through zoom or skype (for business) within the constitutional
stipulated time and the date and time reserved for delivery of the
judgment shall be notified by the court registry to the counsel and
parties through whatsapp or email.[xxvii][17]
Does the conduct of proceedings online via
Skype or zoom fulfill the constitutional requirement of trial in
public places?
One of the wide commentaries on the practice direction is that
conducting virtual proceedings on skype or zoom does not fulfill
the requirement that court proceedings must be held in the
public.[xxviii][18]Some have argued
that since the public cannot ordinarily have access to participate
in the remote hearing except if the court registry grant them
access, then it cannot be said that the proceeding is held in the
public. Some also have argued that there is a limit to the numbers
of persons who can be accommodated on zoom or Skype then, the
requirement of being held in the public has not been fulfilled.
As plausible as those arguments are, it is submitted that the
advent of technology and the adoption of same for court activities
come with some inevitable limitations and challenges which are best
embraced and adjusted to. It is undeniable that with respect to
physical courtroom proceedings, it is not every time that a random
member of the public is granted access to the courtroom. There is
always restriction to the courtroom where high profiled cases or
political cases are held especially in the appellate courts. There
are courtrooms whose capacity is so small and limited so that only
the judge, court officials, parties and their counsel are allowed
into the courtroom. These are practical instances of limited access
to the courtroom, aside the legally justified exceptions where
access to court is restricted in special cases. In the all, has any
of the practical instances been invalidated?
It is submitted that this remote hearing would be said to have
fulfilled the requirement of being held in the public if, apart
from the parties and counsel, a sizeable portion of the public who
are interested in the proceeding is able to access the remote
space. Hence, it is suggested that the court registry should
publish the electronic link to the remote space on the judiciary
website so that interested person can through the link access the
hearing. There is a possibility that the case to be heard remotely
might be such that draws the acute attention of the public and as
such, the number of interested person willing to access the remote
space might overwhelm the system. The court registry would be
justified if the electronic link to the proceeding is only made
available to the parties, counsel, registered press officials,
interested NGOs, correctional service officials, police force
etc.
DOES THE DELIVERY OF JUDGMENT IN ONLINE
PROCEEDINGS VIA SKYPE OR ZOOM FULFIL THE REQUIREMENT OF A VALID
JUDGMENT?
No matter how good a law is, it perceived as being a bad when it
is not in the favour of a litigant, and no matter how bad a law is,
it is well embraced and perceived as being the best of all laws
where a lawyer/litigant obtains favourable judgment therefrom.
Premised on the foregoing, despite the commendable provisions of
the Practice Direction, it becomes a subject of appeal when the
court’s decisions are not in favour of a Counsel. And this brings
us to the question: Does the mode of delivery of Judgment as
contemplated in the Practice Direction fulfill the requirement of a
valid Judgment? If NO, that means any judgment obtained from the
online proceedings is likely to be invalidated and being set aside
on appeal. Hence rendering the whole trial an exercise in
futility.
Paragraph 24 of the Practice Direction provides that the
Court shall through the Registry notify the Counsel and or
parties by Email or Whatsapp of the date reserved for the delivery
of judgment and or Ruling. It can be implied from this
paragraph that such judgment will be delivered online, which
therefore necessitates the need to examine the validity of a
judgment delivered online vis a vis the extant laws.
Judgment is the outcome of any proceeding and it has been
defined as the determination of the Court which includes decree,
decision, order, conviction, sentence or recommendation (Section
318 of CFRN).[xxix][19] And for a judgment to
be valid, some of the requirements of the law are that, such
judgment must be in writing (Section 294(1) CFRN 1999) [xxx][20], by the Judge itself
and must also be delivered in open court.[xxxi][21] It is also a trite
principle of law that the Defendant must be present in Court when
he is to be sentenced in Criminal Trials[xxxii][22]. As of this moment,
there is no judicial authority or statutory provision in Nigeria on
the point that online platform is an open court. Thus, one cannot
authoritative aver that judgment delivered via an online
communication platform fulfill the requirement of being delivered
in an open court. Also, there is a possibility that the Defendant,
especially the ones in custody may not have access to Electronic
devices for online proceedings, given the state of the Nigerian
correctional centres. Hence, the defendant’s difficulty in
accessing the online platform due to unavailability of suitable
facilities to access the designated online platform would render
any judgment given in his absence to be a nullity.
However, judgments have been delivered in some jurisdictions
such as Lagos and Borno; and there have been substantial compliance
with the requirements of a valid judgment as provided by the extant
laws. In the above cases, the Judge wrote down the judgment and
delivered same through the online platform. As a matter of fact,
the Defendant in a criminal case participated in the proceedings
via Teleconferencing from the correctional centre. While this
arrangement is commendable and prayed to be continued, a slight
failure to connect the defendant may be fatal to the validity of
the judgment. So, the point of concern is non compliance in future
cases which may be resulting from the technicality associated
therewith the use of Electronic Equipment, or as a result of lack
of adequate facility to enable Parties to participate in the
proceedings.
In the light of the foregoing, we recognize that the validity of
judgment delivered online is, to a large extent, contingent on the
availability of measures to ensure that the requirement of an
‘open court’ and ‘presence of a defendant’ (as in
criminal case) are solidly in place. It is therefore against this
backdrop that we submit that adequate facilities should be provided
to support the workability of the provisions of the practice
direction.
CONCLUSION
The Lagos State Judiciary has really made a commendable stride
in responding creatively to the challenges posed by the outbreak of
the coronavirus disease in Nigeria, Lagos being the epic centre,
and the measures adopted by the government in containing the
transmission of the virus. While it is expected that the Nigeria
courts (Lagos especially), being the most inundated and
overstretched judicial system in Africa, ought to have adopted the
opportunities provided by technology and cyber science, to carry
out and aid the process of dispute resolution, long before this
moment; it is worth appraising nonetheless that the Chief Judge of
Lagos State has made this practice direction on remote hearing to
dispose urgent cases. These are cases that may have arisen from the
lockdown directive or during the period of lockdown as well as
pending cases that are urgent or time bound applications or court
activities such as rulings, judgment etc. We conclude that the
application of the practice direction should be extended to cater
for other cases such as commercial cases. Or perhaps, general rules
of court on remote hearing should be made taking into consideration
the suggestions provided in this work. The time is ripe for the
court to embrace online proceedings as this will go a long way to
speed up the justice delivery system. As copiously pointed out, the
exact practice direction on remote hearing is bulged with a lot of
lacunas to which we have creatively fashion out suggestions which
we urge the court to consider and for stakeholders in the legal
profession to draw to the attention of the Chief Judge. While the
practice direction is yet amended, the analysis and workings of the
remote hearing as explained above will, by any standard, help the
court to midwife online proceedings and electronic service of
processes. Finally, members of the public or counsel who are going
to conducting their cases under the application of this practice
direction will find the painstaking analysis above useful.
By Olumideajayi & Kolawoleomoyajowo
INTRODUCTION
The purpose of the law and relevance of the Justice delivery
system is measured by its accessibility, affordability and
profitability to the public at all times. This is because, just as
the air is to a man, so isthe law and its apparatuses to any
society at any given time. Further to this, the law cannot be said
to be in force when the structures that anchor its functionality is
handicapped. That is, the existence and the efficacy of the law are
contingent on the existence of structures and systems that
administer it, dispense justice and midwife orderliness in the
society. Hence, the outbreak of a pandemic or crisis that poses a
severe threat to human life will not suffice to suspend the
functionality of the court system; rather it challenges the court
and its administrators to devise a dynamic model through which the
objectives of the law can be realized.
It is therefore the appreciation of this fundamental concept
that drove countries such as the United States of America, United
Kingdom, India and even, the republic of Kenya to develop or adopt
digital structures for administering the law and dispensing justice
through virtual technologies, as proactive response to surmount the
challenges posed by the measures to curtail the spread of the
dreaded coronavirus disease. Thus, to minimize hazardous exposure
to health risk, the business of justice delivery must be shifted to
the cyberspace and sustained even after the ravaging of the
pandemic abates. This is because the adoption of technologies for
conduct proceedings is an amazing breakthrough to ease the justice
delivery system. It is therefore interesting to note that countries
that have erected digital structures for Online Dispute Resolution
record more conformity and compliance to lockdown directives and
enforcement of measures. Also, these countries have further
demonstrated that it is essential to paddle the sustenance of the
economy and the survival of the nation into a new world order
driven and powered by technologies and artificial intelligence. In
the Nigeria scenario, the traditional structures for justice
delivery system have been hibernated and sadly, the administration
of justice is on a substantial lockdown.[i]
Little wonder, Nigeria tops the table of nations with substantial
non-compliance to lockdown directives, failure of measures to
contain the transmission of the dreaded coronavirus disease and a
nearly economic meltdown. This distasteful record cannot be
dissociated from the probable causal factor that the cessation of
the administration of justice system makes the enforcement of the
covid-19 curtailing measures to be difficult, if not impossible, as
evidenced by the inability of the government to successfully
enforce the lockdown measures in states like Lagos & Abuja. No
doubt, the efficacy of the law cannot be gainfully appropriated
when the court system is shutdown. In the heights of the
coronavirus pandemic in Nigeria, the online vis-à-vis digital
businesses are heavily patronized; some businesses are now
relocating to the cyberspace, commercial & noncommercial disputes
have arisen as a result of the lockdown which equally demand prompt
adjudication. Yet, the Nigeria judiciary seems insensitive to this
societal change.
However, the crux of this work is to critically examine the key
provisions of the 2020 practice direction of the High Court of
Lagos State on Remote hearing, commend the initiative of the Lagos
State Judiciary, identify the loopholes in the provisions and
charter a formidable pathway for the effective operation of remote
hearing via digital platforms. All the provisions are critically
analyzed and creative suggestions are made. This article is
fashioned to be thought provoking and to stimulate further debates,
rejoinders and ultimately, solid direction on the workings of
electronic service of processes and online proceedings in
Nigeria.
EXAMINATION OF THE KEY PROVISIONS OF THE 2020
PRACTICE DIRECTION OF THE HIGH COURT OF LAGOS STATE ON REMOTE
HEARING.
ELECTRONIC FILING SYSTEM
It is worthy of note that while paragraph 3 of the Practice
Direction provides for its objectives, Paragraphs 5 to 9 of the
Practice Direction made provisions for Electronic filing of Court
Processes for remote hearing. It is pertinent to know that filing
is a major component of commencing proceedings, whether civil or
criminal. As a matter of fact, it is the foundation upon which
proceeding is built. It is upon filing the processes thatsame are
being served on the concerned parties, and after which proceedings
are commenced properly. Paragraphs 5 and 6 of the practice
direction are to the effect that filing of Court Processes shall be
done electronically and received by the Court electronically, in
other words, via (a) Email and (b) Whatsapp. It further provides
the Processes should include the email address and phone number of
the Counsel and in event that a Party is not represented by
Counsel, his Email Address and Phone Number should be stated in the
originating processes. Although, the manual mode of filing is still
allowed where electronic filing is not possible.[ii]
Moreover, it is interesting to note that the practice direction
did not accept any other form or format in which the processes must
be, other than scanned copies of the processes in PDF formatting
style.[iii][1]
It might be said that the reason underlining the choice of PDF
formatting style and excluding others[iv] is
because of the tendency of loss or distortion of contents of the
processes while they are being exchanged via electronic means. But
of a truth, the rationale is because of the validity requirement of
affixing a seal on processes by counsel.[v] The
NBA seal is only made available in hard form. That is, there is no
electronic or digital seal for lawyers to affix on processes.
Hence, a counsel will have prepare the processes, print them out
and affix the NBA seal on it as though the processes were to be
filed physically. After the affixation of the seal on the hard copy
of the processes, the counsel will then scan each copy of the
processes in the order of their pagination and save the scanned
copies of the processes in a single-rowed PDF document. However,
electronic signature is recognized under our law and as such
counsel or party can affix an electronic signature on the
document.
Paragraphs 7 & 8 further provide for the power of the Chief
Registrar to assign designate officials for assessment of fees
payable on documents filed and the mode of payment, which is by
electronic transfer of filling fee into the designated account of
the court as shall be made available by the court registry.
Moreover, manual mode of payment is possible where there is a
difficulty making payment by electronic transfer. Hence, the
counsel or party will file the processes through email or whatsapp.
And the court registry will then assess the due filing fee and
communicate the assessed fee to the counsel or party via email,
text message or whatsapp. Then, the counsel or party will proceed
to make the electronic transfer and generate receipt or any other
evidence of payment. He is then required to scan the receipt or
evidence of payment and send it to the court registry who shall
then verify the payment. After verification of payment, the
processes would be deemed to have been filed and the suit is said
to have commenced. It is suggested that parties and counsel should
make the electronic payment through their bank mobile App so that
receipt of payment can be easily generated. The process of making
electronic payment would be easier and accurate if the judiciary
can set up a judiciary filing portal system connected to Remita so
that the process of payment can be instantaneously traceable and
verifiable automatically without the physical intervention of the
court registry. And immediately the portal system automatically
verifies the payment, the access to filing of processes will be
opened automatically and the counsel or party can file the
processes easily.
ELECTRONIC MODE OF SERVICING COURT
PROCESSES
One of the innovations heralded by the Practice Direction is the
introduction of electronic method of effecting service of process.
Paragraph 10 of the practice direction provides that the service of
processes shall be done by way of transmission through e-mail
address or through WhatsApp platform (that is, into the registered
account of the other party on whatsApp) or through such other
meansas it shall be directed by the Chief Judge. The working or
functionality of this electronic service mechanism is hinged on the
availability of the email addresses and phone numbers of both
parties and the Central operating system that will drive this model
is the technical unit of court’s registry who shall be responsible
forcollecting processes filed and effecting the service of same on
the other party.
It is very important to point out that the provisions of the
practice direction on service of processes is to complement and not
replaceOrder 9 of the High Court of Lagos State (Civil Procedure)
Rules & Practice 2019 in such a way that both rules can
successfully midwife the smooth operation of the system of online
commencement of a suit, its hearing up to the last stage of
judgment.To this extent, the radical changes introduced by the
practice direction needs to be meticulously tailored into the
principal rules of the High Court.
However, the remote service model still recognizes and retains
the existing requirement for filing a proof of service as it were
under the 2019 court rules. Hence, an affidavit of service stating
the particulars of how the service of the processes was effected on
the other party, through email or WhatsApp or otherwise, shall be
averred and filed into the court’s record.[vi]To
accomplish the requirement of filing a proper proof of service, the
same paragraph 12 demands that an electronic printout containing
the date and time that the service was received by the other party
must be exhibited (as evidence) by the affidavit of service.
It is noteworthy that time begins to run from the date that the
processes was transmitted through the email or WhatsAppby the party
effecting the service. By implication, if the process served is a
writ of summons to which the defendant must make appearance and
file his defence within 42 days, the time (that is, the 42 days)
begin to count from the very exact date that the court registry
sent the writ by email or WhatsApp. Thus, no consideration is given
for the date and time that when the other party had the receipt of
the processes, just in the similitude of the effect of service by
substituted means.
Undoubtedly, the Lagos State Judiciary has made a giant stride
by being the first to herald this progressive judicial transition
of proceedings to take advantage of technology in Nigeria and in
West Africa. Moreover, it is further commendable that the Lagos
State Judiciary attempts to simplify and ease the process of remote
model of service in order to avoid every possible technicality that
comes with the use of digital transmission of data. This is evident
in her adoption of WhatsApp as one of the means of effecting
service, being one of the most popular and patronized digital
platform of communication and exchange of information in Nigeria.
As commendable as these provisions are, they are not without
lacuna. The practice direction leaves so many vitals not provided
for. And these lacunas will trigger legal technicalities, legal
disputes and if not quickly amended, the purpose and goals of the
remote hearing will be clogged.
By the reason of the wordings of the provisions on service of
processes under the practice direction, there is no hesitation to
come to the finding that the practice direction disposes with the
requirement of PERSONAL SERVICE as applicable under the 2019 civil
procedure rules.[vii][2]
The court in several decisions has held that what constitutes
personal service is the physical delivery of the original or CTC of
court processes to the other party in person.[viii][3]
Of course, the 2019 High Court rules recognize service by email but
as a means of substituted service and not personal service.[ix] And for email to be used for service under the
2019 court rules, an application for leave of court to employ email
as a means of substituted service must be filed. But the
implication of paragraph 10 of the practice direction on remote
hearing is that the status of service by email has been upgraded
from being a means of substituted service to a means of personal
service. To buttress this analysis, paragraph 11 of the practice
direction regards service through email and WhatsApp as good and
sufficient service.This is quite commendable considering the
realities of this technological ageand the need for the law to
reflect that dynamism. The Chief Judge of the Lagos State High
Court, respectfully, should have made it clear in the practice
direction that service through email and whatsapp are now deemed as
personal service. This analysis also affects and relates to service
of processes on corporate bodies. Hence,serviceof court processes
through the email or whatsapp of any of her director, secretary, or
principal officer would be sufficiently regarded as a proper
service.[x] This is because section 78 of
the Companies & Allied Matters Act had provided that court
processes are to be served on the company in the manner provided by
the rules of court.
Ordinarily, the Lagos State High Courtrules 2019 determine who
is to effect service of processes, namely: the sheriff, deputy
sheriff, bailiff, special marshal, other officer of the court,
registered chamber, and courier company or process servers.[xi] Bearing in mind that the aforementioned persons
are likely not to be savvy in the use of electronic devises, there
is no doubt that the court would have to engage the service of
computer skilled bailiff or sheriff (e-bailiff or e-sheriff) to
completely discharge the onerous task of receiving and serving
court processes through electronic means. Even though email and
whatsapp are commonly used, there is still possibility of loss of
data, spam storage or failure in the course of transmission due to
the technicalities associated with these systems all owing to
internet technicalities. For these reasons, mischievous parties or
crafty counsel can take advantage of that susceptibility to deny
the receipt of processes served.
The need for highly competent process servers cannot be
overemphasized. This is because service of processes is so
fundamental such that if a party is not served with processes, the
court will have no jurisdiction over him or competency to decide on
that process.[xii][4]Hence, having competent
hands on desk will further engender the generation of an accurate
electronic printout to be exhibited with the affidavit of
service.[xiii][5]
Paragraph 12 demands that the service of the processes must be
proved by an affidavit which must exhibit an electronic printout
detailing the date and time which the processes were received by
the other party. The essence of this provision is firstly to
authenticate that indeed service was made and secondly, to know
when it was received by the other party as well as determining
whether the receiving party delayed in responding.
There is no doubt that there will be possibility of service to
be disputed by the other party especially on the account of date
and time of service as well as the accuracy of the content of the
electronic printout as required under paragraph 12. To resolve
this, the test of admissibility under section 84 of the Evidence
Act would be invoked. Who is in control of the electronic
devicewith which the service was made; which electronic device was
used; how the processes were sent, the accuracy of the electronic
device and the content of the printoutetc would be needed to be
ascertained. This requires a reasonable measure of computer
literacy which the court’s sheriff, bailiff etc may not be
proficient thereto. If error or default is discovered in the
accuracy of the electronic device and the electronic printout as
regard service of processes, the hands of the court would be tied
to herself because it has been held in several cases that the
default on the part of the court’s registry or court officials
cannot be visited on parties to suit.[xiv][6]But the overall effect
any default on electronic service traceable to the court official
who sent it is that the pace of the proceeding will be delayed.
To surmount this problem, it is strongly suggested that after
serving a process via whatsapp or Email address, the court official
in charge should further contact the party or counsel served
through direct phone call informing him of the service of the
process on him. Also, the party so served should be made to send an
acknowledgment of receipt of the process immediately back to the
court official so that it could be filed to ascertain the date and
time the service was received by the party. It is however
disheartening that the practice direction did not make provision
for a party to make and return an acknowledgement of the receipt of
a process via same electronic means. Rather, paragraph 12 states
that the electronic print out as proof of service which is to be
generated by the person that served the process that is the court
official and exhibited on the affidavit of service to be filed by
the process server.
The question that arise from that requirement for the content of
the electronic printout by the court server is: How can the
date and time when an information (court process, in this case)is
received by the receiving party(the party being served the
process)be available to the knowing of the sender (process
server)without the receiving party disclosing it?It is
therefore noteworthy that as far as electronic mailing system
(email) is concerned, the sender of an information cannot know the
date and time of delivery of the mail. This is because all that
would be displayed on his electronic device is the date and time
when the information was sent and not otherwise. But for service of
process by whatsapp, the ordinary setting is such that when the
recipient receives the information (court process), a blue-coloured
signal in the form of a mark would be revealed but that settings
can be adjusted not to display in that ordinary manner. With this
water-loose provisions, controversy is bound to arise, as the
failure to insert the return of acknowledgment of receipt of
service by the party served, is a volatile lacuna in the practice
direction.
Furthermore, by reason of Order 6 rule 1 & 6,Order 11 rule
2(1)[xv]as well as paragraph 5 of the
practice direction 2020, only the claimant and defendant’s
telephone number and email address or those of the counsel are
required to be endorsed on the processes. Of course, while the
claimant is reasonably expected to know the contact address and
phone number of the defendant and required to endorse same on the
originating processes but it is not all the case with the email
address of the defendant, in all circumstances. Some parties may
not even have email addresses as well as a registered WhatsApp
account. To circumvent this difficulty associated in getting the
email address through which service of the process can be made, it
is suggested that the court registry should place a phone call to
the defendant to inform her of an action commenced against her and
that she is to provide an active whatsapp account number and email
through which processes can be served on her.
Moreover, where is discovered that the electronic service is
made impossible by reason of unavailability of phone number and
email, genuinely or borne out of the intention to evade service,
then service by substituted means is to be done either by way of
newspaper publication or physical delivery in the last known
address of the defendant. To buttress this, it could be gleaned
from the wordings of paragraph 10 that the possibility of a service
by substituted means was contemplated through the statement,
“…service of court process may be effectted by email,
whatsappor as otherwise directed by the
court”
Lastly on the service of processes on the practice direction,
paragraph 13 says that time begins to count from the date and time
when the processes are served via electronic means. It is
noteworthy that so many lawyers have argued against this provision
on the ground that the provision did not take into consideration
the possibility of technical errors or default on the part of the
server which renders the delivery of the processes to fail. As
plausible as this argument might appear, no reasonable and
meticulously drafted rules of court or even law would place the
counting of time on when the processes are actually received by the
party so served, as far as electronic means of service of process
is concerned. Electronic mailing systems are presumed to be
instantaneous, even though rebuttable. Besides, it would be easily
susceptible to fraud and evasion of service if the rule as to
counting of time is contingent on the actual receipt or delivery to
the other party. It is therefore our strongly held opinion, in
support of the spirit and letter of paragraph 13, that the
determination of time should be on the date and time it was
actually sent, if and only if our suggestions as to the workings of
an electronic means of process service is adhered.
Further, it is instructive to point out that the provision of
paragraph 13 as discussed above does not inhibit the other party
(acclaimed to have been served on certain date & time) to file a
counter affidavit to the affidavit of service under paragraph 12,
with averments that he was not properly served or that he was not
in the receipt of the processes at the date and time so specific in
the proof of service. He is so justified to do that after all, that
he received the processes on the date contained in the proof of
service (electronic printout) is a presumption that can be
rebutted. On this point, it is necessary to make a rejoinder of
opinion on the interesting but amusing submission of some
commentators, who in the process of attempting to justify why the
other party can disprove of the receipt of the processes on the
very day it was sent, opined thatA combined reading of section 145
and 153(1)&(2) of the Evidence Act, 2011 can be utilized to
create a rebuttable presumption of fact that the electronic
message/court documents were received on the day it was sent.As
much as the intention above is known and the rescue mission that he
was devising is appreciated, we respectfully submit that his
opinion as quoted above is misleading and a faulty interpretation
of the purpose of section 153 of the evidence Act. The essence of
section 153 is to create a presumption on the content accuracy of
electronically generated documents (that is, whether the documents
sent and that received contains same content). And to rebut that
presumption the test laid down in section 84(2) & (3) of the
evidence Act must be followed. Hence, we submit that there is no
provision in the evidence Act that touches on the presumption that
messages sent electronically is received electronically. But
simply, then the other party still has that opportunity to dispute
the imputed time and date for receipt as a fact that can be
disproved by proving a contrary fact.
PREPARATION AND CONDUCT OF ONLINE
PROCEEDING
The two major electronic platformswhere the court will conduct
her proceeding are zoom and skype for business.[xvi][7]
However, the court may also approve the use of any other video
communication method. This is possibly because to hold the
proceeding or for attendance and audience purposes, the capacity of
the zoom or skype may be limiting. So, the court can approve of
other video communication platform with better coverage capacity
and accessibility. It is noteworthy that parties or the counsel and
the registry of the court must liase properly as to the scheduling
of the proceeding and the suitability as well as the availability
of facilities to support access to the online proceeding.[xvii][8]
Hence, the counsel on behalf of the parties will have to
adequately engage the registry as to date & time when the
proceeding is to be fixed. Also to be discussed is which of zoom or
skype for business should be use but ultimately, it is for the
court to give direction as to the appropriate method of video
communication to be adapted.[xviii][9]The flexibility of this
provision with respect which method of video communication is used
is quite commendable. It will enable the court to keep adopting
better and improved video methods that will enable easy
accessibility and improved suitability. Indeed, the practicality of
this mechanism is dependent on the affordability of the necessary
facilities by both the counsel and parties or the possibility of
the party to be with the counsel so that a joint facility could be
used.
But the case is not the same in a proceeding for bail
application or a trial of a criminal suit where the defendant is in
custody and possibly poor. Because of the conditions of our
correctional centers and police stations, the defendant is likely
not have access to video communication facilities in order to
participate in the remote hearing. Hence, it is strongly suggested
that the correctional service and police station should be equipped
with adequate facilities to support and access designated
electronic platform for the court proceeding. In the alternative,
the correctional service should mobilize the suspect to the office
of his counsel so that the defendant can access his counsel’s
facilities. This would avail the defendant the opportunity of being
properly guided by the counsel in the course of proceeding which
might not be possible if the defendant and counsel are apart. If
the correctional service is properly equipped with the needed
digital facilities for remote hearing, the defendant should be
given the option of requesting the physical presence of his counsel
with him for strategic reasons so that both can jointly access the
remote platform using the same facility.
Since the defendant would not be in the physical courtroom, the
essential requirements such as the defendant being in the dock or a
witness being in the witness box are another phase of hurdle which
the practice direction did not provide for. It would not be
surprising when an appeal is brought to court challenging the
conviction of a defendant on the ground that his arraignment is
defective as he was not placed in the dock while taking his plea.
Or, that the oral evidence of the witnesses is invalid and
inadmissible because the witness is not placed in the witness box
while giving his testimony. We strongly opine that the challenges
as posed above are mere formal technicalities that should not have
the weight to affect the validity of a proceeding, in the light of
the virtual realities where physical court structures are absent.
The stream of justice should not be clogged by such formalities but
one wonders while the practice direction requires counsel to be
properly robed-a colonial antiquity.[xix][10]While one is prompted to
suggest that the Chief Judge should amend the practice direction so
that wherever the defendant is when being arraigned or where the
witness is when being examined shall be deem to be the dock and
witness box respectively, the validity of such a provision in the
practice direction without an amendment of the relevant laws on
criminal procedure might be impugned.
In any case, where the possibility of holding an online
proceeding is not feasible, maybe owing to unavailability of
suitable facilities to support the remote hearing on the part of
the party or counsel or even the court, an adjournment would be
order.[xx]But after the adjournment, what
will happen? Will the court revert to the traditional courtroom
proceeding? Or will the court take responsibility for providing
facilities for counsel and parties? Indeed, while the court has the
responsibility to ensure the availability of a courtroom for
proceeding, it is the personal responsibility of the parties and
counsel to walk into the courtroom.[xxi][11] In that similitude, if
the court makes an arrangement for a space on zoom or skype (for
business) to hold proceeding, save for some instances, it is the
correlative personal responsibility of the parties and counsel to
afford facilities that will enable them access the platform.
Commendably, when a remote hearing would be conducted for a
particular case is to be stated on the cause list which would be
made available on the judiciary’s website and efforts shall be made
to communicate it to the counsel or parties directly through email,
whatsapp or any other means of communication.[xxii][12] And while proceeding is
ongoing, the court shall give direction on the use of the audio and
video tools in order to avoid technical problem or undue
disruption.[xxiii][13] To this extent, there
is still a possibility of a person connected to the remote hearing
platform to be charged and punished for contempt in facie
curiae[xxiv][14] for tampering with
the audio and video tools in such a way that it disrupted the flow
of proceeding.
One of the great benefits that online proceedings usher is that
it eases the court’s assiduous task of recording proceedings in
handwriting. So, this remote hearing enables the court to
automatically record the proceedings on her electronic
device[xxv][15] which can be later
transcribed into prints through electronic means. Hence, the court
would rather pay due attention to the arguments of counsel,
demeanor of the witnesses and that of the defendant. Paragraph 22
states that: “Recording of proceedings by counsel and or
parties shall only be with the leave of court.” It is
submitted that the intention of this provision is that the
electronic recording of the proceeding cannot be done by anybody
except parties or counsel, in which case, the leave of court is
necessary to be sought and granted. It is doubtful if the provision
would be construed to mean that the counsel or party would need to
seek the leave of the court even before they note down certain
portion of the proceeding by handwritten (statement of a witness
during examination, plea of the defendant during arraignment or the
point of argument of an opposing counsel). Ordinarily, the court
does not allow the audio or video recording of her proceeding
except in rare cases of which the consent of the court is sought
and the face of the judge(s) is hidden. There is therefore no doubt
that person connected to the remote hearing cannot be physically
monitored or restrained from audio or video recording of the court
proceeding, being one of the susceptibilities of online
proceedings. What can be done by the court in this regard? It is
submitted that this can be curtailed if the court employs video
communication platform where it is possible to disable any
downloading or recording function, just as in YouTube.
Moreover, due attention needs to be drawn to paragraph 14 of the
practice direction which states that counsel or parties are to
indicate their voluntary participation in the remote hearing
through official mail to the court. It is opined that the rationale
behind this provision is that counsel or parties who cannot afford
the facilities to participate in the remote hearing should so
indicate so that the court can devise how the case would be
heard.But the wordings of the provision, prima facie, give counsel
and parties a blank cheque to decide whether to participate in the
proceeding or not, on the account of any excuse. This lacuna is
quite disturbing because in both civil and criminal proceedings,
the law demands the attendance of parties and counsel, the failure
of which there are consequences for.[xxvi][16]
Lastly, paragraph 24 of the practice direction retains the
applicable rules and procedure as to the adoption of written
address as applicable under the 2019 civil procedure rules of
court, the Magistrate Court rules and the administration of
Criminal Justice Law. Also, judgment shall also be delivered
through zoom or skype (for business) within the constitutional
stipulated time and the date and time reserved for delivery of the
judgment shall be notified by the court registry to the counsel and
parties through whatsapp or email.[xxvii][17]
Does the conduct of proceedings online via
Skype or zoom fulfill the constitutional requirement of trial in
public places?
One of the wide commentaries on the practice direction is that
conducting virtual proceedings on skype or zoom does not fulfill
the requirement that court proceedings must be held in the
public.[xxviii][18]Some have argued
that since the public cannot ordinarily have access to participate
in the remote hearing except if the court registry grant them
access, then it cannot be said that the proceeding is held in the
public. Some also have argued that there is a limit to the numbers
of persons who can be accommodated on zoom or Skype then, the
requirement of being held in the public has not been fulfilled.
As plausible as those arguments are, it is submitted that the
advent of technology and the adoption of same for court activities
come with some inevitable limitations and challenges which are best
embraced and adjusted to. It is undeniable that with respect to
physical courtroom proceedings, it is not every time that a random
member of the public is granted access to the courtroom. There is
always restriction to the courtroom where high profiled cases or
political cases are held especially in the appellate courts. There
are courtrooms whose capacity is so small and limited so that only
the judge, court officials, parties and their counsel are allowed
into the courtroom. These are practical instances of limited access
to the courtroom, aside the legally justified exceptions where
access to court is restricted in special cases. In the all, has any
of the practical instances been invalidated?
It is submitted that this remote hearing would be said to have
fulfilled the requirement of being held in the public if, apart
from the parties and counsel, a sizeable portion of the public who
are interested in the proceeding is able to access the remote
space. Hence, it is suggested that the court registry should
publish the electronic link to the remote space on the judiciary
website so that interested person can through the link access the
hearing. There is a possibility that the case to be heard remotely
might be such that draws the acute attention of the public and as
such, the number of interested person willing to access the remote
space might overwhelm the system. The court registry would be
justified if the electronic link to the proceeding is only made
available to the parties, counsel, registered press officials,
interested NGOs, correctional service officials, police force
etc.
DOES THE DELIVERY OF JUDGMENT IN ONLINE
PROCEEDINGS VIA SKYPE OR ZOOM FULFIL THE REQUIREMENT OF A VALID
JUDGMENT?
No matter how good a law is, it perceived as being a bad when it
is not in the favour of a litigant, and no matter how bad a law is,
it is well embraced and perceived as being the best of all laws
where a lawyer/litigant obtains favourable judgment therefrom.
Premised on the foregoing, despite the commendable provisions of
the Practice Direction, it becomes a subject of appeal when the
court’s decisions are not in favour of a Counsel. And this brings
us to the question: Does the mode of delivery of Judgment as
contemplated in the Practice Direction fulfill the requirement of a
valid Judgment? If NO, that means any judgment obtained from the
online proceedings is likely to be invalidated and being set aside
on appeal. Hence rendering the whole trial an exercise in
futility.
Paragraph 24 of the Practice Direction provides that the
Court shall through the Registry notify the Counsel and or
parties by Email or Whatsapp of the date reserved for the delivery
of judgment and or Ruling. It can be implied from this
paragraph that such judgment will be delivered online, which
therefore necessitates the need to examine the validity of a
judgment delivered online vis a vis the extant laws.
Judgment is the outcome of any proceeding and it has been
defined as the determination of the Court which includes decree,
decision, order, conviction, sentence or recommendation (Section
318 of CFRN).[xxix][19] And for a judgment to
be valid, some of the requirements of the law are that, such
judgment must be in writing (Section 294(1) CFRN 1999) [xxx][20], by the Judge itself
and must also be delivered in open court.[xxxi][21] It is also a trite
principle of law that the Defendant must be present in Court when
he is to be sentenced in Criminal Trials[xxxii][22]. As of this moment,
there is no judicial authority or statutory provision in Nigeria on
the point that online platform is an open court. Thus, one cannot
authoritative aver that judgment delivered via an online
communication platform fulfill the requirement of being delivered
in an open court. Also, there is a possibility that the Defendant,
especially the ones in custody may not have access to Electronic
devices for online proceedings, given the state of the Nigerian
correctional centres. Hence, the defendant’s difficulty in
accessing the online platform due to unavailability of suitable
facilities to access the designated online platform would render
any judgment given in his absence to be a nullity.
However, judgments have been delivered in some jurisdictions
such as Lagos and Borno; and there have been substantial compliance
with the requirements of a valid judgment as provided by the extant
laws. In the above cases, the Judge wrote down the judgment and
delivered same through the online platform. As a matter of fact,
the Defendant in a criminal case participated in the proceedings
via Teleconferencing from the correctional centre. While this
arrangement is commendable and prayed to be continued, a slight
failure to connect the defendant may be fatal to the validity of
the judgment. So, the point of concern is non compliance in future
cases which may be resulting from the technicality associated
therewith the use of Electronic Equipment, or as a result of lack
of adequate facility to enable Parties to participate in the
proceedings.
In the light of the foregoing, we recognize that the validity of
judgment delivered online is, to a large extent, contingent on the
availability of measures to ensure that the requirement of an
‘open court’ and ‘presence of a defendant’ (as in
criminal case) are solidly in place. It is therefore against this
backdrop that we submit that adequate facilities should be provided
to support the workability of the provisions of the practice
direction.
CONCLUSION
The Lagos State Judiciary has really made a commendable stride
in responding creatively to the challenges posed by the outbreak of
the coronavirus disease in Nigeria, Lagos being the epic centre,
and the measures adopted by the government in containing the
transmission of the virus. While it is expected that the Nigeria
courts (Lagos especially), being the most inundated and
overstretched judicial system in Africa, ought to have adopted the
opportunities provided by technology and cyber science, to carry
out and aid the process of dispute resolution, long before this
moment; it is worth appraising nonetheless that the Chief Judge of
Lagos State has made this practice direction on remote hearing to
dispose urgent cases. These are cases that may have arisen from the
lockdown directive or during the period of lockdown as well as
pending cases that are urgent or time bound applications or court
activities such as rulings, judgment etc. We conclude that the
application of the practice direction should be extended to cater
for other cases such as commercial cases. Or perhaps, general rules
of court on remote hearing should be made taking into consideration
the suggestions provided in this work. The time is ripe for the
court to embrace online proceedings as this will go a long way to
speed up the justice delivery system. As copiously pointed out, the
exact practice direction on remote hearing is bulged with a lot of
lacunas to which we have creatively fashion out suggestions which
we urge the court to consider and for stakeholders in the legal
profession to draw to the attention of the Chief Judge. While the
practice direction is yet amended, the analysis and workings of the
remote hearing as explained above will, by any standard, help the
court to midwife online proceedings and electronic service of
processes. Finally, members of the public or counsel who are going
to conducting their cases under the application of this practice
direction will find the painstaking analysis above useful.