Examining workability of anonymous trial in Nigeria

The notion of anonymity of court proceedings goes with privacy or secrecy in proceedings. It is a means of balancing the right of a person to privacy with the justice principle of fair hearing. Where a person considers it appropriate that certain personal data relating to him or her should not be revealed in published material concerning a case brought before the Court, such person might apply to the court that he or she be granted anonymity in the context of that case.

According to Ogbonna Chukwumerije, a lawyer, anonymity can be in form of private proceedings or use of initials, instead of the full names of the party seeking the privacy. “An essential consideration in favour of non-disclosure is the desire to have cases heard on their merits and that litigants should not be hindered by fear, ridicule, derision or shame. The reality is that many persons will rather forgo the vindication of their rights than have details of their private lives and personal medical facts open to public scrutiny,” he explained.

Looking at the purview of anonymity in Nigerian legal jurisprudence, Section 36(4) (b) of the 1999 Constitution provides that where the court or tribunal is satisfied that it would not be in the public interest for any matter to be publicly disclosed, such matters can be held privately. Also, non-disclosure of sensitive data of victims of certain offences or witnesses in certain proceedings is recognised by Section 232 of the Administration of Criminal Justice Act (ACJA) 2015, which relates to criminal proceedings. It specifically talks about sexual offences, terrorism, trafficking as well as economic and financial crimes.

Similarly, the practice of anonymising the full names of witnesses in statements on oaths to be used as evidence at the trial of election petitions, usually to protect their identity, has become accepted and established by the election petition Tribunals and endorsed by the appellate Courts.

But can Nigerian laws be amended to accommodate filing of lawsuits in pseudonyms to protect the identity of the applicant? Lagos lawyer, Nwachukwu Odoemela strongly believes that only juristic persons have the legal right and obligation to file or defend lawsuits, going by the existing laws.

According to him, the general rule is that only natural persons, human beings and juristic or artificial persons such as bodies corporate, are competent to sue and be sued. Citing the case of Fawehinmi v Nigerian Bar Association (NO.2)(1989) 2NWLR 558@595, Odoemela, insisted that “no action can be brought against any party other than a natural person or persons, unless such party has been given statute, expressly or impliedly by common law, either as a right to sue or be sued.”

He said: “Lawsuits are the only known prisms in which legal rights and obligations of persons are determined. It behooves that only natural or juristic persons in whom such rights and obligations can be vested are capable of being proper parties to a lawsuit. It is very cardinal that a natural person can only sue and be sued.”

However, the lawyer explained that in the case of juristic person, it can sue and be sued as long as its corporate personality subsists. He stressed that there are plethora of decided cases with respect to the principle, which supports the raising of the issue at a preliminary point and if sustained, will lead to the striking out of the suit by the court seised of the matter.

In Agbonmagbe Bank Ltd v General Manager G. B. Ollivant Ltd., Odoemela stated that the court held that a party was a non-juristic person and as such could not be sued. “See Njemanze v Shell BP Port Harcourt (CA). In clearing the issue, the court held that it was not enough to complain of the trial judge’s refusal to amend party’s name, that it was necessary to show that there were reasonable grounds of excuse in naming the defendant wrongly and that the name of Shell-BP could not have given rise to any reasonable doubt as to which company was being sued. An amendment of title or an action cannot be heard merely for the asking. It means that there must be a cogent reason for a litigant who sues in the wrong name to seek for an amendment of the name of the party he sues.

“Nevertheless, in extreme circumstances, though commonly found in trespass to land cases were a claimant cannot figure out the identity of persons who have trespassed on his land, but due to the fact that the rules forbid the filing of action against unknown or unnamed persons, such litigants over the years waited in perpetuity. The fellow waited to the extent that such action becomes statute barred and in some cases, counsel may hurriedly sue and do all manner of applications to serve the unknown person to no avail,” he said.

The lawyer emphasised that litigants were faced with such hurdle in land cases, considering the mischievous attitude of trespassers, some of whom will choose to carry out development during the night to frustrate the land owner.

He, however, explained that this challenge has been addressed in some jurisdictions of Nigerian courts by making special provisions in their rules to permit legal action against unidentified trespassers, which in itself has become an exception to the general rule. Odoemela listed states such as Lagos, Ogun and Kaduna as example of jurisdictions where such rules exist.

According to him, in Emeka Okoli & Ors v Alhaji Ibrahim Gadam, the special provision emphatically explained thus: “Order 50 High Court of Kaduna (Civil Procedure) Rule is in line with Order 113 Rule 1 of the Supreme Court of England and the extant Order 57 Rules of High Court of Lagos State. This special provision is only available to possession in land matters and nothing more and this provision can only be commenced through Originating Summons.”

He recalled that the Court of Appeal has declared what a claimant can do to bring an action against unknown person in “Names unknown v Sahiris Int’l Ltd. He quoted the court as saying “an aggrieved person whose land is occupied by persons unknown could file in support of his originating summons an affidavit, stating the following, (1) His interest in the land (2) the circumstances in which the land has been occupied without license or consent and in which his claim to possession arises (3) that he does not know the name of any person occupying the land, who is not named in the summons.”

“It is kudos to the few jurisdictions that have find it reasonable to create this sections making it possible to litigate against unknown trespasser to land. We encourage other jurisdictions to replicate same. The bottomline of this special provision is that no service is required, the affidavit with cogent reasons embedded on the affidavit suffices in as much as the content shall not include issues bordering on landlord and his tenant, rather on persons unknown, who occupy and or trespass on land,” Odoemela said.

Comparing Nigeria with other jurisdictions where anonymous filing is the norm, Dr. Jerome Okoro, a Lagos based lawyer, explained that the right to file and maintain civil suits in the U.S under anonymity or with pseudonyms is enabled by legal provisions. In the U.S he said, there is the Federal Rule of Civil Procedure 10(a), which first provides the general rule that: “The title of the complaint must name all the parties”, but created exceptions permitting litigants to sue anonymously or under pseudonyms when hidden identity is necessary to “protect a person from harassment, injury, ridicule or personal embarrassment.” Discretion of judges, he stated, is only called in to determine whether the facts and circumstances of a particular case conform to any of the factors.

His words: “Considering the factors underlying this rule and its meticulous application in the U.S, I think it is high time we adopted the rule in Nigeria. By law, no wrong shall go without redress. But at times, with the identity of the litigant fully disclosed to the whole world, there is reasonable apprehension of extra-judicial retaliation from the loser in the suit, irreparable damage to reputation of the plaintiff, and far-reaching jeopardy to the litigant’s prospects.

“These have made several wrongs go without redress. The aggrieved party considers such grave consequences and painfully chooses to let go of his right to sue. So, to save such situations, Nigeria should adopt such rules in civil procedure as will enable suits under anonymity or pseudonyms in deserving cases. We have to consider suits against sexual wrongs, some matrimonial suits, where subsequent marital prospects would be prejudiced and suits against former employers, where prospective employers may form an impression of the plaintiff as a troublesome person.”

Okoro noted that Nigerian law already has a rule for anonymity in civil suits, but added that the anonymity is only provided for those being sued. “It is most common in cases of trespass to property by unknown persons. The property owner sues the trespassers simply as “Unknown Persons.” Following the American system, this rule should be extended to avail plaintiffs in appropriate cases. The mode of introduction is to provide in the rules of civil procedure of the Nigerian courts for suits under anonymity or pseudonyms, with factors guiding their application,” he suggested.

For Bar Abdulwasiu Esuola, Nigeria can work out a procedure for the conduct of anonymous trials beginning with ‘documents-only’ proceedings with desiring parties using pseudonyms. He pointed out that the Nigerian Constitution in section 36(3) provides that the proceedings of a Court shall be public, but suggested that it can be amended to make specific provision for anonymous trials, especially with the Constitution review presently ongoing.

According to Esuola, anonymity of parties helps to avert unnecessary media attention. He, however, argued that the prying public could also unravel the hidden identity of an anonymous applicant, adding that arbitration could be the surest mode of maintaining anonymity in cases.

“I think the benefits of anonymity have already been provided by the confidentiality of arbitral proceedings such that whoever wants confidentiality and wants to avoid media attention can explore arbitration, which is the available option for now,” he argued.