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‘Effect of COVID-19 pandemic on legal system is enormous’

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Kehinde

Mr. Oluwole Kehinde is the editor of Nigerian Weekly Law Report (NWLR). In this interview with YETUNDE AYOBAMI OJO, he spoke on the effect of the COVID-19 pandemic, Lagos state infectious disease (emergency prevention) regulations 2020 and legal education among others.

What is your view about the legality or otherwise of the declaration of lockdown in three states of the federation by the President Muhammadu Buhari?
It is accepted that the President has the power to suspend certain human rights to the extent provided by section 45 (1) of the 1999 Constitution (as amended). With respect to the lockdown, however, initially, the President merely declared restriction affecting the FCT, Lagos and Ogun by public address, whereas, the Quarantine Act requires him to issue regulations in that regard and for that purpose. That would appear to be placing the cart before the horse, and the same was considered inappropriate, as the lockdown then lacked legal backing. Nevertheless, I believed then that we ought to obey the restriction order in the interest of public health and safety. Essentially, under its sections 3 and 4, the Quarantine Act invests the President with the power to, among others, by notice, declare any place whether within or without Nigeria to be an infected local area; to make regulations prescribing the steps to be taken within Nigeria upon any place, being declared to be an infected local area; preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria; prescribing the powers and duties of such officers as may be charged with carrying out such regulations. Section 5 further provides for penalty for breach of the law, while section 8 permits a governor of a State to issue regulations where the President does not do so. Subsequently, the President issued the Regulations as required by the Law. With that, I think the question of illegality of the restriction order no longer arises. Even though the horse came after the cart, the lacuna has now been filled. That does not mean that the issue of illegality could not be raised on other grounds that may be discovered to exist. Speaking for myself, however, I am of the most humble opinion that the Quarantine Act and the Regulations issued by the President are laws reasonably necessary and justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health as envisaged by section 45 (1) of the 1999 Constitution to warrant restrictions on some fundamental rights, such as right to freedom of movement, freedom of association, freedom of religion and others

What are the effects of the pandemic on the legal system?
The effect of COVID-19 on the legal system is enormous. Let us start with criminal justice system. The courts are closed, detainees are kept in custody until when God knows, while hearings, judgments and rulings to determine peoples’ liberty or liability are suspended. On the other hand, law enforcement agents are exposed to infection, while some arrests are unable to be effected, and at same time some of them are involved in enforcing restrictions. Similarly, correctional services are affected, with the facilities highly exposed for the spread, and the inmates and officers alike are at grave risk of attack of the disease. Many cases to actualise enjoyment of some rights and benefits are being kept on hold; some perishable objects would be destroyed; unimaginable emotional and psychological trauma would be unleashed on litigants; delayed proceedings as a result of impending rescheduling of adjourned cases; courts vacations, conferences and vacations. Also, lawyers are already discussing how to deal with myriads of cases of breach of contracts and the extent to which Force Majeure clause could go to avail defaulting parties. But even when defaulting parties are relieved by virtue of the clause, it will not relieve them of extra costs of performance, because the clause is only an excuse for delay and not a reason for increasing price that may arise as a result of delay, storage, demurrage and others. There is also the challenge of dealing with new contracts, because the clause is a safeguard for unforeseen circumstances and not known factors at the time of the contract, such as we have with Covid-19. Meaning that, a new contract entered now can’t later claim Covid-19 as a basis of Force Majeure to exculpate breach of the contract, since the factor is already known to exist. But beyond contract, there are monumental losses of failed court sittings, arbitration or mediation proceedings, negotiation meetings, loss of time, man-hour, and costs of immense magnitude, arising from wasted hotel and flight bookings, etc. In addition, legal and judicial institutions have enormous bills to pay their staff, who are off duty, and to maintain buildings and structures that are idle. So, it is one unusual phenomenon that would have phenomenal effects on the whole spectrum of the legal system.

Can the lockdown determine contracts that are time bound?
Certainly, the dawn of the pandemic can determine contracts that are time bound. But the doctrine of frustration and Force Majeure clause could come in aid of the defaulting party depending on the character of a contract and circumstances of the breach. Frustration occurs when, subsequent to formation of a contract, and without fault of either party, it becomes incapable or impossible of being performed due to an unforeseen event (or events). The legal consequence is that the contract is automatically terminated at the point of frustration, but only future obligations are discharged. Obligations, which fell due for performance before the frustration, are still in operation. Similarly, Force Majeure clause exempts the performance of a contract due to events of “superior force” such as political, natural, environmental, or civil disruptions that make the performance of the contract impossible. I think I have said a lot about Force Majeure above.

Some are of the view that the Lagos state infectious disease (emergency prevention) regulations 2020, does not prescribe punishment for those who violate social distancing directive of the governor. What are your opinions on this?
Well, it appears there is a lacuna somewhere in the law. Neither the Infectious Disease Regulations nor the Public Health Law of Lagos State creates the offence forbidding social gathering of more than 20 people. So, we are left with the mere directive of the governor, which on its own does not constitute law. The governor pursuant to Section 8 of the Quarantine Act and the Public Health Law of Lagos State made the Infectious Disease Regulations. However, Section 8 of the Quarantine Act only empowers the governor to make such regulations where the president fails to do so. That being the case, the State should have restricted itself to the regulations made by the president pursuant to the Quarantine Act and then charge offenders to court thereunder. Alternatively, the State could make provisions for the relevant offences under the regulations and not merely relying on the order of the governor. To that extent, I agree with the argument that the Lagos State Regulations is, in the circumstances, ineffectual, as it is ineffective.

Should immunity from prosecution as contained in sections 308 of the Constitution, be extended to the judges?
We are at a stage of our national life when people are already clamouring for restriction of the immunity clause to civil matters alone. This is as a result of perceived abuse by the beneficiaries, especially governors.  To now advocate the extension of immunity to judges may seem curious and therefore difficult to achieve. What we need do is to make the National Judicial Council (NJC) more proactive and robust to deal with cases of misconduct by judges more expeditiously.

Judges should first be investigated by the NJC and dealt with appropriately. Where it involves civil misconduct, they are either suspended or recommended for dismissal, but where it involves crimes, they are suspended and referred to the appropriate organs for prosecution. This accords with the decision in the case of Nganjiwa v. FRN (2018) 4 NWLR (Pt. 1609) 30. Although, because of the sensitive nature, duties, and exposure of the Chief Justice of Nigeria, immunity could be extended to that office and other Justices of the Supreme Court. But to make a wholesale application to all Judges may be counter-productive. True, recent events in dealing with the judiciary are scary as they are disturbing, but the key to achieving a desirable goal of judicial independence is respect for the rule of law. We are told judges are corrupt, but that is also true about other organs of government in the country. Yet, no one is ambushing legislators, or heads of ministries, departments, and agencies in the course of discharging their duties, as it happened to judges. No sane person should be seen justifying corrupt practices by judges, but let the due process of law be followed in dealing with them.
Fighting corruption with corrupt procedure will not endure. It challenges the credibility of the process and legitimacy of the subsequent actions taken. That is a big loophole in the whole process and whittles down its sustainability. It also provides a good excuse for sympathisers of corruption and a fertile ground for them to continue to challenge the process. With respect and observance of due process, the clamour for immunity for judges will fizzle out.

Do you think we should create divisions for the Supreme Court?
I don’t think we should create divisions for the Supreme Court.  We need cohesion and stability of judicial precedents and stare decisis, and the Supreme Court is the pivot for effectiveness and efficiency of those doctrines.  Creating divisions for the Supreme Court will not help advance those timeless values and virtues of the justice system. Already, we are having problems with some conflicting decisions emanating from the Court of Appeal Divisions. We shouldn’t add such to the existing challenges we are having with the Supreme Court. I believe they already have panels for different sessions. What we need is a full complement of the maximum justices provided for the Court by the Constitution, so that we can have more panels of justices to deal with more cases, lessen the burden on the existing justices and the entire Court, and see justice dispensed more expeditiously. In addition, each of the justices need be supported with more legal and technical assistants. Each of them needs, at least, two judicial assistants and an IT expert, in addition to the existing secretaries and clerks, to help them in conducting research and collating materials, so that the justices could have more time to do quality jobs on dispensation of justice. Already, most High Court judges have judicial assistants. The justices of Supreme Court deserve more than that. The IT assistants would then complement the judicial assistants to usher the Court to full-scale online operations. This would go a along way to enhancing speedier justice system than we currently have.

Are you in support of the clamour for the restructuring of legal education?
If it is restructuring of content of legal education to suit the demands of developments in the society and meet up with the demands of international standards, that is fine.  But I do not support total restructuring of legal education in the sense of dissolving the Nigerian Law School. Although, change is inevitable as development progresses in society at large and in legal practice in particular, we do not have to rush it or destroy the uniform standard now existing. Already we have about five campuses in Enugu, Kano, Lagos, Yenagoa, and Yola, plus the Headquarters in Abuja. If need be, they may improve on that, but not to completely dissolve the Law School.

We should rather encourage specialisation and practice sections or regional units in that direction. Already, people are complaining of falling standards, to restructure may lead to total collapse of the standards, if not carefully handled. I will also suggest that any subsequent reforms should go along restructuring the NBA, law reporting, and legal practice generally. For instance, we do not have to be going to court every day at 9.00 am, whether the court is sitting or not. The timetable should start from 10 am, and there should be proper case scheduling. You go to court towards the time your case is scheduled to hold. Further on legal education, I am aware that a high level committee of the Council of Legal Education has done a great job on the matter and the report is undergoing necessary reviews and approvals. Although, it has been a long while we heard anything about the report, which is not encouraging at all.

To what extent or level can arbitral award be challenged?
An arbitral award is open to challenge at the High Court, up to the Supreme Court as a matter of law, but practitioners are encouraged to respect decisions of arbitral tribunals, which they willingly submitted to. An aggrieved party may, however, apply that an award be set aside in whole or in part on recognised grounds. By virtue of sections 29 and 30 of the Arbitration and Conciliation Act, Cap. A18, Laws of the Federation of Nigeria, 2004, where an arbitrator has misconducted himself or where the arbitral proceedings or award, has been improperly procured, the court may on the application of a party set aside the award. Also, under section 12 of the Act, an arbitrator who has misconducted himself may on the application of any party be removed by the court. Misconduct on the part of an arbitrator has been explained to include failure of an arbitrator to comply with the terms of the arbitration agreement; if the arbitrator makes an award, which on grounds of public policy ought not to be enforced; where the arbitrator has been bribed or corrupted; if the arbitrator fails to decide all the matters, which were referred to him; where the arbitrator has breached the rules of natural justice, etc. Nonetheless, practitioners are striving to ensure that parties as much as possible abide by arbitral awards except in obvious cases of misconduct. This is to avoid turning the whole process to bland and rabid litigation that arbitration seeks to address and redress in the first place. So, recourse to challenging arbitral awards ought to be used parsimoniously and not routinely.

What are your expectations from the coming NBA election?
I wish that the best candidate among the contestants would win. Luckily, we have exited the era of few representatives from the branches being used to impose candidates on the whole members of the Bar. We are now in the era of electronic voting, and all members in good standing, duly verified, are eligible to vote. We need a lot of improvements in the area of professional development, ethics, and welfare of members that we can no longer submit to the shenanigans of traditional Bar politicians, who have lived and grown their practice moving around the NBA but have nothing to show or offer aside that legacy of politicking. We need reformers, open and transparent characters, who are amenable to fresh ideas and are themselves sound, well informed, and in tune with modern trends in legal practice the world over, as to rub off on the NBA and her members, especially the younger generation. Not rabble-rousers or regional champions. The NBA has grown beyond that. The Association and her members must move forward and for the better. A lot of campaigns are going on, especially on social media and I believe lawyers are reading and watching, scrutinizing the plans and programmes of the candidates, with a view to determining the right person among the contestants. It is no longer business as usual for the contestants.

Are you of the view that the President of the country always influence who becomes the NBA president?
Since the days of Aka-Bashorun under the military, it appears the government has been showing interest in who becomes NBA president, either as a result of patronage by the candidates or the government. It is not a desirable occurrence, but that appears to be the reality. No doubt, the NBA president holds enormous honour and privileges, and recognition as the voice of the Bar.  So, it’s not out of place to be agitated that the government may be interested in who gets there and thereby court his loyalty and forestall perceived opposition. It is also being alleged, however, that some contestants do approach the government for support, and if they get through it is obvious they would be subservient to the government, as he who pays the piper dictates the tune. Moreover, the contest for the president of the NBA has become expensive because of the strength of the Association, the spread of her members and the pattern of her elections. So a lot of interests may be involved in determining who becomes the president and to give financial inducement or support. To that extent, the president of the country may be indirectly involved in the process. Although, there have been a great discontent with that emerging trend by members of the Association.

Can error on an affidavit filed before the court, be corrected orally?
Generally, an erroneous deposition in an affidavit can only be corrected by another deposition by way of further affidavit.  But if it relates to a matter the court can take judicial notice of, such as names of public offices or officers, institutions, towns, public holidays, etc, or the error is innocuous, it could be amended orally. If, however, it relates to a matter of admission, his adversary may use it against the affected party. It all depends on the relevance and weight of what is to be corrected, the circumstances of the case, and what is at stake. So, it may be open to arguments, and lawyers hardly agree because there are always conflicting principles and exceptions.


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