The Covid-19 Pandemic And The Future Of Litigation In Nigeria

Olumide Olusoga Sofowora, SAN, C.ArbPrincipal Counsel/Head of Chambers, Olumide Sofowora Chambers

INTRODUCTION:

In December 2019 or thereabout a hitherto unknown virus was discovered in Wuhan China and the world as we knew it has not been the same ever since. The new virus was declared a global pandemic in March 2020 and the world virtually ground to a standstill due to lockdown measures put in place by governments around the world to halt the spread. The Nigerian government imposed a lockdown on two states of the Federation; Lagos and Ogun State and on the Federal Capital Territory (FCT), Abuja on the 30th of March, 2020. As a consequence the doors of the Courts were shut in those states and the FCT and in most states in Nigeria. 

Close to six weeks later, from the 4th day of May 2020 a gradual easing of the lockdown was announced by the government and new guidelines were set by the National Judicial Council (NJC) to regulate proceedings post COVID-19 era. These new guidelines have introduced remote proceedings into the administration of Justice in Nigeria and like most things new, a lot of dust is being raised as to the Constitutionality or otherwise of the provisions of the guidelines viz-a-viz Section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which states that proceedings in courts or tribunals for the determination of the civil rights of a person shall be held in public. 

THE CONTROVERSY:

A Committee was set up by the National Judicial Council (NJC) headed by Hon. Justice Olabode Rhodes-Vivour, JSC to come up with guidelines and measures to enable safe Court sittings during this COVID-19 pandemic period. At the conclusion of the Committee’s assignment, the Chief Justice of Nigeria, Hon. Justice I.T. Muhammad in a circular with ref. No. NJC/CIR/HOC/II/660 released the guidelines and urged the heads of both Federal and State Courts to be guided by same in the formulation of their Rules, Directives and Guidelines. According to the Committee in its report, “the guidelines do not replace or substitute the respective Rules of Court, they complement the Rules and make specific provisions that would guide justice administration for as long as the COVID-19 pandemic continues and possibly beyond.” 

The guidelines make these specific provisions as regards Virtual or Remote Court sittings; 

“1. Physical sittings by courts in courtrooms should be avoided as much as possible during this COVID-19 period. Such physical court sittings must be limited only to time bound, extremely urgent and essential matters that may not be heard by the court remotely or virtually… 

  1. Virtual court sittings (alternatively referred to as “remote court sittings” or “online court sittings”) should be encouraged and promoted by the courts and Counsel. The Courts should insist on such remote hearings for matters that do not require taking any evidence. All judgments, ruling and directions may be delivered and handed down by the courts in and through remote court sittings.

The guidelines further direct on what guidelines to apply for the determination of the location for the virtual court sitting;

“5(a). Subject to the further guidelines hereunder, the judicial officer(s) and the court officials and security personnel shall, as a default arrangement, sit and be in the regular courtrooms for remote court sittings. Except with the leave of Court, only the judicial officer(s) and the court officials and security personnel shall be the ones in the courtroom for any virtual court sitting.

“5(c). Subject to the prior approval of each Head of Court, Judicial Officers may conduct virtual court sittings from their respective chambers. The further provisions of item 5(a) above shall apply in pari materia to all such virtual court sittings that are hosted in chambers.

On the other hand, Section 36(3) of the Constitution of the Federal Republic of Nigeria (as amended) provides as follows;

“The proceedings of a court or proceedings of any tribunal relating to the matters mentioned in (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.”

Section 36(4) specifically provides that criminal proceedings must be held in public.

Herein lies the reason for the hullabaloo. Does the stipulation by the guidelines that proceedings can be conducted remotely go contrary to the provision of the Constitution that proceedings shall be “in public”?

Those opposed to the remote hearing of cases without a prior amendment of Section 36(3) and (4) of the Constitution rely on the decided cases of MENAKAYA v. MENAKAYA (2001) 16 NWLR (Part 738) page 203 at 249 paragraphs A-C and EDIBO v. THE STATE (2007) 13 NWLR (Part 1051) page 306 at 337 paragraphs A-D where it was generally held by the Supreme Court that:

“Section 33(3) of the Constitution of the Federal Republic of Nigeria 1979 (now Section 36(3) of the 1999 Constitution) enjoined proceedings of a court or tribunal for the determination of civil rights and obligations to be in open Court and that the learned trial Judge sat in a place other than as authorized by the Constitution, the proceedings leading to his judgment therefore suffered from a fundamental vice  which rendered the judgment delivered null and void”.

The reasoning behind this decision by the apex court was given by Tobi J.S.C. (as he then was) in EDIBO v. THE STATE (Supra) where he stated thus:

“By Section 33(3) of the 1979 Constitution, the proceedings of a court or tribunal shall be held in public. Public means, for the use of everyone without discrimination. Anything, gathering or audience which is not private is public. In Oviasu v. Oviasu (1973) 11 SC 315 a case involving the hearing of a Petition for dissolution in Chambers, this court held that the learned trial Judge should not have decided on his own to hear the matter in chambers. This court said: ‘The hearing of this matrimonial case took place in the Judge’s Chambers. Neither the Counsel nor parties requested for the hearing of the divorce proceedings in camera. A judge’s Chambers is not a court hall to which the public will normally have any right of access.’”

From these decisions of the Supreme Court one can safely surmise that the elephant in the room is “access” to the place where a court or tribunal is conducting its proceedings. In both decisions a Courtroom was considered a public place as opposed to the Judge’s Chambers for the simple reason that the Judicial Officers, the parties and their Counsel and any interested member of the public had unrestricted “access” to it. One will dare to venture with all due respect that the decisions in those two cases would have been different if only the Judge granted unrestricted access to his chambers to the parties and their Counsel and any interested member of the public. If that had been the case, the Chambers would move from being described as a “private” place to a “public” place. Same conditions when available in a remote hearing i.e. access being granted to and available to Judicial Officers, the parties and their Counsel and any interested member of the public will make the venue of such remote/virtual hearing be it zoom, skype, whatsapp etc a public place in line with the provisions of Section 36(3) and (4) of the Constitution.

One can find support for this line of reasoning in the decided case of OYEYIPO v. OGUNDARE (1987) 1 NWLR (Part 50) page 356 where Obaseki J.S.C. (as he then was) opined thus:

“When the Court sits in Chambers, all that it means is that the judges of the court are transacting the business of the court in Chambers instead of open court. (See Hartmont v. Foster (1881) 8 QBD 82, 84). It does not mean that the court is not sitting in public. A court can sit in open court and yet decide to exclude members of the public other than the parties or their legal representatives from the hearing in exercise of its statutory powers…A judge may sit in Chambers without excluding members of the public. It is therefore not unconstitutional to sit in Chambers.”

The decision above was followed in CHIME v. UDE (1996) 7 NWLR (Part 461) page 379 at 417 paragraphs B-C.

It is ones opinion therefore that the apprehension whether remote hearings are in conformity with the Constitutional requirement that the proceedings be in public ought to be allayed by the fact that the Constitution did not say that such proceedings must be in a physical structure called a Courtroom. Once the proceedings in a remote/Virtual hearing is made accessible to everyone involved and any interested member of the public, then the condition as provided in Section 36 (3) and (4) in my humble opinion has been complied with.

A WINDOW OF OPPURTUNITY:

The NJC Committee in its guidelines to the Courts nationwide stipulated as follows relating to Hearing Notices on matters to be heard remotely/virtually; these guidelines have been adopted by the Courts in Nigeria through the various Practice Directions recently promulgated by the various heads of Courts. The guidelines stipulate thus:

“8. The provisions of Item D in regard to the service of hearing notices by the court on parties shall apply in pari materia to virtual court sittings and the contents of such hearing notices shall be the same as if the hearing notices were for physical court sittings provided that the following additional details and information shall be contained and prominently stated in the said hearing notices.”

  1. The hearing notices must expressly state and inform the parties that the court sittings, or hearings shall be conducted virtually, and that, save as stipulated in item E.5(b), Counsel and their clients are not expected in the courtroom.
  2. The time for the remote hearing and the details that would enable the parties and their Counsel to join and participate in the court sitting or hearing should be prominently set out in the hearing notice.
  3. The details of the channel or social media platform through which there would be live streaming of the virtual court proceedings for public viewing in the terms of item E.11 hereof shall be specified in the hearing notice.”

These provisions are extensively reproduced from the guidelines for emphasis and to show that the constitutional provision that the proceedings be conducted in public has been complied with in giving the go ahead for the remote/virtual hearing of matters.

However, one must avert one’s mind to the danger inherent in a situation where consensus is lacking both in the body of Judges and at the Bar on the undisputed constitutionality of the novel provisions on remote/virtual proceedings. One can confidently predict that if Section 36(3) and (4) of the Constitution are left as they presently are without more, there will be a deluge of appeals arising out of the decisions of courts from proceedings conducted remotely/virtually just to test the waters. This could further lead to unnecessary waste of time and resources and an undesirable uncertain climate as we proceed with remote hearings. Herein lies the silver lining, the Senate of the Federal Republic of Nigeria presently has before it a bill to amend the Constitution to make virtual court proceedings constitutional. In as much as one has argued that virtual court proceedings are constitutional in so far as it is not contrary to the provisions of Section 36(3) and (4), one would however welcome an amendment of those provisions in the constitution in order to remove all ambiguities relating to this novelty so that we can all move forward with certainty and of one accord.

Instructively, whilst waiting for the National Assembly to conclude work on the bill to amend the Constitution, two states of the Federation – Lagos State and Ekiti State filed separate actions invoking the original jurisdiction of the Supreme Court to interpret the constitutionality of virtual proceedings in the courts in the two states and all over Nigeria. On Tuesday the 14th day of July, 2020 the Supreme Court came out with its verdict affirming that conducting virtual proceedings in courts in Nigeria is not unconstitutional. Rhodes-Vivour, JSC in his opinion on the matter advised the two states to patiently await the bill on the amendment to the Constitution pending at the National Assembly on the matter and if issues arise from cases conducted virtually thereafter, they will be matters for the Courts to pronounce upon. 

CONCLUSION:

One is of the firm opinion that no harm will be done and it would indeed be of utmost benefit to the legal community if all necessary assistance is given to the Senate Committee charged with the responsibility of carrying out this amendment. If pressure is applied on the Senate by the Legal Community as a body there is no reason an accelerated amendment cannot be done by the National Assembly thereby decisively laying to rest this controversy over the constitutionality or otherwise of remote/virtual hearings. When this is done, we can all channel our energy into ensuring the integrity and the security of the platforms on which these hearings will be done since circumstances have wrought this innovation on us and it is here to stay.

 

Olumide Sofowora Esq., SAN, C.Arb.

Principal Counsel/Head of Chambers – Olumide Sofowora LP

And

Philip E. Tagbo Esq.

Head of Litigation and Private Law Department – Olumide Sofowora LP