Virtual court hearing in the age of COVID-19

Virtual court hearing in the age of COVID-19

There is no doubt that the COVID-19 pandemic has affected every sector of the country’s economy, including the justice sector, writes TAIYE AGBAJE

 

Since the first confirmed case on Feb. 27, 2020, in Lagos, with the attendant lockdown that led to loss of jobs, closure of many businesses, inflation, recession, among others, the Federal Government had not relented in its effort at curbing its spread.

Of course, the judiciary also suffered from its unique share of the effects of global outbreak with limited hearings, long adjournments, restricted access to the courtrooms, becoming the order of the day.

The development slowed down the business of the courts as many cases were delayed due to the long adjournments necessitated by the lockdown.

In order to prevent continuous delay in justice, or its subsequent denial, especially in matters that are time bound, the heads of the courts in the country, including the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad, issued practice directions to judges.

Minister of Justice and the Attorney General of the Federation (AGF) Abubakar Malami urged the heads of courts at the federal and state levels to also adopt virtual court sittings amidst the health challenge.

Although, there were arguments against the use of the audio visual technology in court proceedings, the devastating effects of the pandemic made the arguments in its favour to be relevant.

For instance, the Supreme Court, on July 14, 2020, struck out two suits challenging the constitutionality of the virtual court sittings procedure.

The suits filed by Lagos and Ekiti governments challenged the validity of the virtual court hearing proposed by the National Assembly.

But a seven-man panel presided by Justice Bode Rhodes-Vivour, dismissed the suits after they were withdrawn by the plaintiffs.

Justice Rhodes-Vivour, who described the suits as “speculative,” held that “as of today, virtual sitting is not unconstitutional.”

Besides, the second wave of COVID-19 in the country today has left much to be desired.

According to the Chief Medical Director, Lagos University Teaching Hospital (LUTH), Prof. Chris Bode, the resurgence of COVID-19 through the newly mutated form is ravaging our land, claiming many lives.

A cross section of lawyers added their voices to the debate on whether it was time for the use of technology to be adopted by the country’s judicial system.

Lawyer Ayodele Akintunde, SAN, described virtual hearing as “a process where the court deploys technology to assist parties and the courts to conduct proceedings without requiring the physical presence of the parties.”

Akintunde said he supported the use of audio visual technology in adjudicating cases in courts, because the judiciary must also be able to function even amidst the disease outbreak.

“There is  no better time for the adoption than now. The COVID-19 pandemic and the manner with which it is spreading, it is important that we maintain physical distancing.

“We have to move from this archaic notion that everything must be done by physical presence and move into a realism that we can do so much without having to be physically present in one environment,” he said.

He applauded the National Judicial Council (NJC) and the CJN on the new guidelines to ensure that courts were able to set up the necessary technology so that proceedings could continue so that justice could be served.

“I have given evidence myself in a District High Court in Australia via Skype; the court was sitting, the parties and counsel were there, I gave my evidence and I was also cross-examined by counsel.

“So virtual hearing has already been in place in several jurisdictions and also been constantly used in arbitration in Nigeria,” he said.

On the argument that virtual hearing could encourage admitting documents that might be untenable in court, Akintunde said the method has a precondition.

According to him, parties must submit their documents ahead of the virtual hearing so that the other side has an opportunity to object to any of the documents that they sought to tender.

“So, it is not during the hearing that the documents are going to come in. Documents that are going to be admitted without any objection are already known and the ones that are going to be objected to are known so that counsel can articulate their arguments at the hearing,” he explained.

Akintunde acknowledged that though power supply had been the challenge, “we have to embrace our challenges, move on and develop from there.

Speaking in a similar vein, Josephine Odikpo threw her weight behind its adoption.

“Law is dynamic and not static; it is designed to be responsive to situations and give guidance accordingly through policies and legislations.

“Virtual hearings practice direction is necessary to provide guidance on the continuation of dispensation of justice in the face of difficulties, occasioned by the coronavirus pandemic, so as to ensure speedy dispensation of Justice because justice delayed is justice denied,” she said.

The lawyer said the adoption of virtual hearings in the country’s judicial system would open endless possibilities that would shape and strengthen the judicial system.

“This is a take home win or lesson gained from the novel coronavirus pandemic, which will invariably be beneficial if applied effectively with probity,” she remarked.

Odikpo acknowledged that though the audio visual proceeding could either be convenient or tedious, she said it was nevertheless a good initiative.

“The advantage of holding virtual or remote hearings is that litigants who are far from the jurisdiction of the proceedings can utilise zoom, Skype or any other video conferencing platforms approved by the court.

“Although the constitutional provision of Section 36 requires matters to be heard in public, the advent of the novel coronavirus pandemic worldwide has open up other avenues for matters to be heard at least expeditiously.

“Moreover, it can be argued that the internet space is a public place. The technology is also cost and time effective for lawyers, litigants and the court as well,” the lawyer said.

Odikpo, however, said poor Internet connection and inadequate ICT knowledge by many litigants, lawyers and judges could hinder its success.  So says Paul Erokoro, (SAN), that the technology might be difficult to achieve as the country battles the pandemic.

Even though he supports virtual hearing, the senior lawyer expressed his doubts as to whether the technology could be adopted universally across all courts in the country.

”The idea is a very good one. We have been using it in international arbitration and the law must allow modern technology to come into its efficiency. So I am very much in support of it.

”However, this is a country where our judges still write in long hand. There are so many courts like the Federal High Courts, that are equipped with automatic recording machines but only a few judges use them,” he said.

Erokoro said lawyers, judges and court staff needed to be trained, if the system must be effective, especially at this period of the COVID-19 outbreak.

He added that  government must also be prepared to back this up with a lot of money since power supply was not guaranteed.

”Will the government be willing to put the kind of generators that will make sure that there is power throughout the court sitting? Again, how do you handle the issues of real evidence? For instance, a man is accused of killing somebody with a knife or a gun. How will you tender the knife or the gun online? What about the criminal matters? What about the defendants? The defendant has to be in court and how are you going to ensure that he is in court online? So there are practical problems,” he said.

The lawyer was, however, confident that  with commitment, the country could overcome the challenges.

”All over the world, they are grappling with the coronavirus now and Nigeria should not be left behind. We should start, if we encounter difficulties, we correct them.

”For instance, online hearing can take place at the Court of Appeal and Supreme Court right now.

”The infrastructure and the facilities required for that will not be as difficult, as they will be for a trial in the High Courts.

”Government must back the measure up with serious budgetary allocation, otherwise it will not work,” Erokoro concluded.

A lawyer, Adeola Adedipe, said the practice directions might not appropriately take pre-eminence over relevant provisions of the Administration of the Criminal Justice Act (ACJA), requiring the presence of a defendant in court.

According to the legal practitioner, it is only the court constituted for the case, that can by leave, excuse a defendant from physical presence in court.

“A practice direction, may not be a suitable replacement for this mandatory procedural condition. It is advisable. However, necessary alignments must be made, in recognition of extant procedural laws, especially with respect to criminal proceedings,” he argued.

The previous year, a lot of judges battled with the issue of crowd control in the courtrooms, especially in cases involving high-profile persons.

A case in point occurred on Dec. 11, 2020, when Justice Ijeoma Ojukwu of the Federal High Court, Abuja, ruled that only counsel, parties and accredited journalists would be allowed in the courtroom at the ongoing trial of the Convener, #RevolutionNow Movement, Omoyele Sowore, and his co-defendant, Olawale Bakare, on a two-count charge of treasonable felony preferred against them by the AGF’s office.

The Chief Judge of the Federal High Court, Justice John Tsoho, acknowledging the big challenge the judges faced, urged them to put in more efforts to tackle the upsurge in the number of cases and attendant services, at the height of efforts to control the coronavirus outbreak.

He thanked the judges for effectively using the COVID-19 practice directions and other directions from him geared towards efficient and effective administration of justice during the high times of the pandemic and the lockdown

Also, the CJN, Justice Muhammad, noted that people’s life style and general ways of doing things had been inconveniently altered with the virus outbreak and that this might remain for as long as the pandemic persisted.

“I may have to succinctly refresh our memories with the excruciating impact of the pandemic on both the judicial officers and workers alike.

“We directed all heads of courts to suspend all forms of physical court sittings with the aim of freeing our courtrooms from the unsparing coronavirus pandemic.

“We were able to enthrone a feasible roadmap that eventually evolved robust information technology architecture for the nation’s judiciary.

“Those guidelines were subsequently adopted by some states’ High Courts and the National Industrial Court.

“Today, as it were, we have now adopted a novel life style that has, irrespective of its inconveniencing nature, become the approved standard way that we have to live, as long as coronavirus remains with us,” he said.

The chief justice said this had inevitably brought the judicial system to the domain of information technology.

Muhammad said virtual court sitting, through zoom, was no longer strange, as it was gradually becoming an integral part of interactions across the globe.

He assured that with time, every court in the country would be fully automated to enhance seamless virtual sittings in order to decongest the courtrooms.

“The pace has to be gradual, while we perfect the inherent technicalities to avoid any hitches that may encumber success,” he said.

He urged the justices to raise the ante, rejig their attitude and commitment to work with a view to giving the best to the judiciary and the nation at large.

 

  • Agbaje is of the News Agency of Nigeria

Source: thenationonlineng.net