Experts examine merits, demerits of virtual court hearings in Nigeria
Legal experts at the weekend examined the pros and cons of virtual court proceedings and concluded with the verdict that the challenges posed by remote court hearings are surmountable, if adopted in Nigeria.
The experts spoke at a Zoom webinar organized by Alliance Law firm, Lagos on Friday.
Among the panelists include the Chief Judge of the Federal High Court, Justice John Tsoho, represented by Justice Enyang Ekwo; partner at Aelex , Funke Adekoya (SAN); Prof. Fidelis Oditah (QC, SAN); Kemi Pinheiro (SAN); managing partner, Synergy Attorneys, Abiodun Owonikoko (SAN); a partner at London based Quadrant Chambers, Mr. Yash Kulkani (QC) and the managing partner of Alliance Law Firm, Mr. Uche Val Obi (SAN), who moderated the event.
Speaking about the introduction of virtual hearing in the new practice direction of the federal high court, Justice Ekwo said the practice directions are in respect of COVID-19 era and made virtual hearing optional. “The issue of constitutionality of virtual hearing has to do with our mentality for hard evidence. Seeing is believing! The constitution of Nigeria already is a big volume of work. If the constitution has to make provision for everything that we do, how big will it be at the end of the day? The American constitution is very handy and virtual hearing is going on there every day. The British constitution is unwritten, yet virtual hearing is going on there every day. We are making our constitution look too rigid,” he declared.
The judge advised that Nigerians should first take steps and see whether it works, instead of arguing to do it or not. He therefore expressed the readiness of the courts to adopt virtual hearing and challenged legal practitioners to be ready as well.
Adekoya said from the arbitration perspective, virtual proceedings in some form have always been an aspect of international arbitration. She stated that preliminary meetings and first procedural conferences, have long before COVID-19, been held either by video conference or audio conference. “Online hearing has the ability to speed up proceedings because lawyers and witnesses do not need to travel to appear in court. So that help brings down the cost of litigation and online hearing will help to reduce court dockets,” she said, adding that online hearing may not just be possible for everything, especially when it becomes necessary to visit locus in quo (scene of event).
Criticising the argument about the unconstitutionality of virtual court hearing, Prof. Oditah said the concerns of practitioners bothering on enabling constitutional provisions is a self-destructive obsession. “It is not surprising that notwithstanding the immense advantages of virtual proceedings in terms of saving cost, time and convenience of all the principal stakeholders, there appears to be some issues raised by some as to the legitimacy of delivering civil and criminal justice.
“My understanding is that the concerns appear to be based largely on section 36(5) of the 1999 constitution, which requires hearing to be in public. The argument appears to be that virtual hearings are not public and therefore violates section 36. I don’t share that view,” he said, pointing out that problems of infrastructure, electronic filing and the inability of judges to exercise their case management powers as issues that has to be addressed.
Using comparative analysis, Mr. Pinheiro asked how Nigeria is still ranked 72 out of 126 in the criminal law index of the World Justice Project. “How come we still have over 52,000 awaiting trial inmates, which come to about 79 percent of the total inmates in our correctional centres? How come Kenya has continued to leverage on technology such that in the last couple of months, they have been able to free 5000 defendants? Why not Nigeria? Why do we continue to bicker and argue when the preponderant of opinion is that we should go virtual,” he asked.
He argued that the world has gone virtual and will leave Nigeria behind if it fails to embrace it, adding that how court proceedings should be conducted supposed not to be provided in the constitution because the constitution is a substantive law and not procedural law.
For Mr. Owonikoko, virtual hearing is a technology driven reality in the administration of justice globally. This is a facility that has been put to good use in resolution of disputes at different levels outside of Nigeria’s court system, he noted.
“Even in Nigeria, the Alternative Dispute Resolution (ADR) platforms have made good use of the facility. However, I am of the view that we thread with caution and limit what we can do for now to those cases that are defensible as having not infracted on rights of citizens. The migration to virtual hearing should be measured, he advised, while Kulkani explained that COVID-19 pandemic has become a catalyst to move things faster than they were before. “The UK has been in lockdown since March and I have done quite a number of arbitrations virtually,” he said, adding that infrastructure such as internet connectivity, bandwidth and other online facilities may pose serious challenge to Nigerian practitioners.