Innovations for the development of remote justice in Nigeria

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Ugonna Ogbuagu
ÆLEX, Nigeria
uogbuagu@aelex.com

Kehinde Takuro
ÆLEX, Nigeria
ktakuro@aelex.com

Like many countries around the world, Nigeria was forced to impose a lockdown in Lagos (Nigeria’s commercial hub) and Abuja (Nigeria’s capital city) to combat the spread of Covid-19. The government’s ban on public gatherings and interstate travel resulted in the judiciary’s suspension of court sittings from March to May 2020, except for hearings of cases that were considered urgent, essential or time-bound. Of course, this led to difficulty in accessing justice, delay in the administration of justice and non-compliance with filing timelines.

The massive upheaval caused by the pandemic in litigation processes has highlighted the global need for the development of an effective remote justice system with the aid of technology. Nigeria has not been left behind in this trend as innovations have been introduced to aid the development of a remote system for the litigation process. These can be divided into three main phases:

• the filing of processes;
• the service of litigation processes; and
• the conduct of court proceedings.

This article highlights some of these innovations for remote justice.

Innovations to aid remote justice

Some of the innovations can be found in:

• the Guidelines for Court Sittings and Related Matters in COVID19 Period[1] (the Guidelines) issued by the National Judicial Council (NJC), a body that has oversight over the judiciary. The Guidelines were issued to guide the courts in implementing remote justice systems, amongst other Covid-19 related measures.
• Practice directions that have been issued by various courts. Some of the practice directions are the Lagos State Judiciary (Remote Hearing of Cases) Covid-19 Pandemic Period Practice Direction (the LHC Practice Directions)[2] and the Federal High Court of Nigeria Practice Direction 2020 for the Covid-19 Period[3] (the FHC Practice Direction).

The implementation of the innovations outlined in the Guidelines and Practice Directions would result in the development of a remote system across the entire spectrum of the Nigerian litigation process, as demonstrated below.

Filing of court processes

Before the pandemic, processes were filed physically at the registries of the various courts. To file processes, a litigant or their lawyer would appear in person at the registry and:

• present the processes to the registrars for assessment of filing and service fees;
• proceed to the bank to pay the assessed fee;
• present the payment receipts to the registrars; and
• finalise the filing process at the registry.

However, the Guidelines provide that electronic payments for filings and other services should be encouraged by the courts. Also, courts are to encourage parties to send electronic copies of processes for filing to the courts’ registries for assessment by the designated court officials.[4] In alignment with the Guidelines, the practice directions issued by various courts also provide for electronic filing of processes.

For instance, the LHC Practice Directions provides that processes should be filed electronically, except where it is impracticable to do so. In particular, the LHC Practice Directions provides that:

• all documents to be filed must be scanned or converted to an appropriate PDF format and forwarded to the registry via the designated email address or WhatsApp number;
• the registrars would assess filing fees and communicate same to parties by email, WhatsApp or text messages; and
• the parties shall pay the assessed fees by electronic transfer into the court’s bank account.

Similarly, the FHC Practice Directions have reinforced already existing e-filing provisions in the Court’s existing Civil Procedure Rules, which allow for filing and payment processes to be effected electronically.

Service of court processes

Generally, under Nigerian law, the service of court processes would only be valid where they are delivered physically to a party or their lawyers, or by some other substituted means ordered by the court. While there have been recent moves to embrace the electronic service of processes,[5] the Covid-19 related judicial directives specifically provide for the electronic service of court processes to complement existing provisions on physical service.

The Guidelines direct the Nigerian Bar Association (NBA) to liaise with heads of courts for the publication of a lawyers’ directory (on a state-by-state basis) which would include addresses, emails and telephone numbers (including telephone numbers with functioning WhatsApp capabilities). Parties would then be able to serve the said processes by email, text messages or WhatsApp.

The FHC Practice Directions and LHC Practice Directions also provide that court processes and hearing notices may be served by email, WhatsApp or any other means directed by the courts. However, the FHC Practice Directions also provides that hearing notices may also be served by text messages.

Conduct of court proceedings

The judiciary has also introduced innovations for virtual court sittings. The Guidelines provide that platforms like Zoom, Microsoft Teams and Google Meet may be used to conduct remote hearings or virtual court sittings, and that courts should insist on such remote hearings for matters that do not require taking any evidence. Also, the courts may issue directions or deliver rulings and judgements through virtual hearings or remote court sittings.

To satisfy the constitutional requirement for the public hearing of matters, the Guidelines provide that heads of courts are to ensure that there is live streaming of all virtual court proceedings through a publicised URL or web address, or other social media channels, so that members of the public can observe the proceedings. Additionally, the details of the virtual court sittings should be published in the usual manner that the court generally publishes its regular sittings, provided that such publications must specify the nature of the sitting (ie, remote proceedings). The social media channel or the web address where the proceedings would be live-streamed must also be stated in the court’s publication.

The Federal High Court and the Lagos High Court have also adopted virtual proceedings via Zoom, Skype and other audiovisual platform approved by the court. Indeed, the LHC Practice Direction also states that the court and counsel shall record the proceedings of the remote hearing, and their parties can only record remote proceedings by the leave of court.

Judicial affirmation of the constitutionality of virtual hearings

The Judiciary affirmed its commitment to the development of a remote justice system while considering the legal challenge to the constitutionality of virtual hearings in Attorney General of Lagos State v. Attorney General of the Federation & Anor[6] and Attorney General of Ekiti State v Attorney General of the Federation.[7]

In the first case, the plaintiff requested that the Supreme Court determine whether remote hearings of any kind (whether by Zoom, Microsoft Teams, WhatsApp, Skype or any other audiovisual or video conference platform) by the Lagos State High Court (or any other courts in Nigeria) in aid of hearing and determination of cases, is constitutional. In the second case, the plaintiff challenged the constitutionality of the directive of the Minister of Justice and the Attorney General of the Federation to the heads of courts at federal and state levels to adopt virtual court sittings.

The plaintiffs subsequently withdrew both cases when they realised from the reaction of the Supreme Court that the cases were considered to be speculative and preemptive. However, while striking out the first case, the Supreme Court stated that ‘as of today virtual sitting is not unconstitutional’.[8]

Implementation challenges

The most significant challenge for the development of a remote justice system in Nigeria is the sub-optimal state (or in some cases, absence) of the infrastructure required for its implementation. In many areas, the power supply is irregular, internet speed is slow, and there is a dearth of computers and other technology required by the judges and registrars to facilitate virtual hearings.

The fact that not all parties may be able to participate in virtual hearings effectively may be the reason why some courts require both parties to agree to a virtual hearing before such hearing can be scheduled. For instance, the FHC’s Practice Directions[9] specifically provides that, where parties and lawyers in a case agree to virtual proceedings, they shall liaise with the registrar to schedule the hearings.

Conclusion

Given the teething problems in the implementation of the innovations for a remote justice system it is not surprising that, upon the government’s suspension of the lockdown, the courts have resumed physical sittings (albeit with the implementation of the necessary health and safety measures). However, the persistence of the coronavirus pandemic still means that the courts cannot proceed with regular physical sittings at full capacity. Indeed, in many cases, the courts have had to prioritise and only hear matters that are deemed to be urgent or essential.

Consequently, there is a clear need for an effective remote justice system that will facilitate the speedy hearing of matters. The innovations contemplated in the recently introduced legal framework (such as the Guidelines and the Practice Directions) represents a solid foundation for the development of remote justice. However, there is a need for the government and other stakeholders to critically analyse the challenges impeding the effective implementation of the innovations and determine how those challenges would be addressed.

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