VIRTUAL PROCEEDINGS – PROS AND CONS
In continuation of the Firm’s Digital Dialogue Series, the Firm held a Webinar on 3rd July, 2020 from 2:00pm – 4:00pm via the Zoom conferencing platform.
Mr. Uche Val Obi, SAN the Managing Partner, Alliance Law Firm, was the host/moderator. The richly resourced panel consisted eminent jurists, scholars, and legal luminaries drawn from Nigeria and abroad. The attendees included Justices of the Court of Appeal, Federal High Court, State High Courts and the National Industrial Courts. Also, in attendance were litigation lawyers including Senior Advocates of Nigeria (SANs), academics, law officers, law makers, and in-house Counsel.
The panelists were; Honourable Justice John Tsoho(Chief Judge of the Federal High Court) ably represented by the Honourable Justice Inyang Ekwo, Mrs. Funke Adekoya, SAN (Partner, AELEX), Professor Fidelis Oditah, QC, SAN (Principal Partner, Oditah & Co.), Mr. Kemi Pinheiro, SAN (Principal, Pinheiro LP), Mr. Abiodun Owonikoko, SAN (Managing Partner, Synergy Attorneys) and Mr. Yash Kulkarni, QC (Partner, Quadrant Chambers, London).
Mr. Obi SAN, kicked of the webinar with an opening remark followed by a brief introduction of the panelists who also made their opening preliminary comments on the theme of the webinar “Virtual Proceedings – Pros and Cons”.
In his opening comments, Honorable Justice Ekwo, expressed the view that adopting new method of conducting proceedings understandably came with it challenges and initial rejection from some angles. Reference was made to the introduction of electronic evidence and how that was initially met with some degree of resistance, until legislative intervention led to the passage of the Evidence Act, 2011. He submitted that, after considering the paralyzing impact of the corona virus (“covid 19”) pandemic on the judiciary’s ability to dispense justice, the Chief Judge had responded by issuing a new Practice Direction in May 2020 titled “Practice Directions 2020 for the Covid 19 period”. He noted that although this was triggered by the pandemic, it presents a catalyst for advancement of justice delivery system leveraging technology and innovations already seen in other spheres of human activities and other arms of government.
Mrs. Funke Adekoya SAN, in her opening remarks clarified the point that the phrase “Virtual Hearing” was synonymous with “Online Hearing” which is a term preferable in the arbitration palace. She said that online or virtual proceedings are largely used to resolve most pre – hearing issues in arbitrations and other forms of ADR. She further said that in most arbitrations were oral testimonies are dispensed with, virtual hearings could be used all the way. She further added that in instances where physical hearings are not practicable due to location or condition of witnesses or the disruptions occasioned by the Covid 19 pandemic, virtual, online or remote hearings have been deployed satisfactorily.
In his preliminary contribution on the jurisprudential context of Virtual Proceedings, Professor Oditah QC, said that Virtual proceedings could be located on the need to ensure that justice must be served expeditiously to meet universal norms instead of allowing undue delays to creep in. He said that the pros must identified the upsides and the merits inherent in the procedure while the cons would identify the challenges and mitigants to the problems that would not compromise the ends of justice.
Mr. Kemi Pinheiro, SAN in his opening submission, stated that the expected take home for attendees of the webinar should be anchored on the following questions;
- What is the Court perceived to be, “a place or a service”?
- How come Nigeria ranks 72 out of 126 in the Criminal Law Index of the World Justice System?
- How come we still have about 52, 000 inmates awaiting trials in our correctional services while Indonesia has been able to free 25,000 inmates within the past few months through Virtual Proceedings?
- How come Singapore has been able to start and conclude Criminal Trials of 219 Defendants within 2 months while Nigeria still lags behind?
- Why do we continue to bicker and argue when the conservatory wisdom and the preponderance of opinions are that we should go virtual”?
Mr. Owonikoko, SAN in his opening remarks described “Virtual Proceedings” as the remote or online hearing of cases as opposed to physical hearing. He noted that although its introduction might seem largely novel in the Nigerian jurisdiction, Arbitration and ADR platforms as well as mainstream litigation in most advanced countries and emerging states had made good use of this procedure and facility to move judicial proceedings forward.
Mr. Kulkarni QC, in his preliminary comments said that his appreciation of the theme is in alignment with most of the views expressed but added that the theme is popular as there will be increasing usage of virtual proceedings across the globe hence the need for each jurisdiction to brace up to its institutionalization.
In response to the question on the Constitutionality and legality of Virtual Proceedings and the Practice Direction made in that regard by the Federal High Court, Mr. Pinheiro, SAN then addressed the five questions earlier posed by him in his introductory remarks. When considering the legality of Virtual Proceedings, Sections 254 (f), 259 and 274 CFRN 1999(As Amended), expressly delegated powers to the Heads of Courts to make directions on procedural matters related to such courts and as such the Practice Directions introducing the adoption of virtual proceedings are constitutional as the powers to enact same were clearly delegated by the Constitution. In addition, Section 36 CFRN 1999(As Amended), only mandated that proceedings be heard publicly of which virtual proceedings would still be in compliance with that section 36 CFRN 1999(As Amended), as such proceedings would be open to the attendance of the public. In concluding Mr. Pinheiro, SAN expressed the view that, “if we do not change, change will change us and we will be left behind”.
In his contribution to a similar question on constitutionality and legality of Virtual Proceedings in the context of highly contentious cases like criminal and electoral matters , although agreeing that virtual hearings had become necessary, Mr. Owonikoko SAN ,expressed some reservation as to the general applicability and efficacy of virtual hearings bearing in mind that legal technicalities continue to represent an obstacle in the wheel of justice under the Nigerian Judicial system and that the Supreme Court was yet to make a pronouncement on the constitutionality of virtual hearings; and therefore cautioned that implementation of virtual hearings in all Courts of the Federation should be approached measuredly and cautiously. Consequently, while he did not totally disagree with the adoption of virtual hearings, Mr. Owonikoko SAN was of the opinion, that the adoption of virtual hearings should be limited to non-contentious matters and other forms of proceedings that do not require oral evidence, such as Rulings, Judgments, proceedings that can be resolved by affidavit evidence (such as Originating Applications, interim or interlocutory Motions, Fundamental Human Rights applications, Judicial Review applications, and Appeals before the Courts, etc. He advised that this cautious approach should be adopted pending a pronouncement on its constitutionality or legality by the Supreme Court citing the recent decision of the Supreme Court declaring some sections of the Administration of Criminal Justice Act as unconstitutional in its recent controversial judgment in the appeal against the conviction of Governor Orji Uzor Kalu’s case. He wondered the devastation that would be suffered if such a decision is delivered by the apex Court affecting matters conducted virtually.
Justice Ekwo informed the webinar that Courts had partnered with United Nations Office on Drugs and Crimes (UNODC) on virtual proceedings especially on taking evidence from prison inmates and also, that experts on that field are collaborating with the courts had already been positioned in readiness for virtual proceedings. Thus, it was expected that virtual proceedings on such criminal matters would be operational immediately after Judges’ vacation this year. Participation in virtual proceedings regarding such criminal matters currently is not mandatory but nevertheless available for willing parties. Regarding the difficulties lawyers experienced with the electronic filing system already provided in the Rules and practice Directions of the Federal High Court, Justice Ekwo suggested that the Nigeria Bar Association (NBA) formally engaged the Federal High Court to discuss modalities for effective implementation of the electronic filing system and virtual proceedings.
Mrs. Adekoya, SAN agreed to the point that technological issues could and do arise in the course of virtual hearings, however they were not insurmountable. Issues like, conduct of trials, taking of evidence (oral, documentary, electronic, and visits to locus in quo) were discussed with the submission that virtual trial is suitable for taking oral, documentary and electronic evidence if well planned and executed, because certain advanced devises such as 360 degrees cam coder can detect if only the witness is in the room thereby eliminating the chance of a third party being present to guide or tutor the witness while they are testifying. She further stated that hyperlinked documents can be uploaded and projected on the screens for all to see and follow during cross-examination and re-examination. She submitted further that going by her experience as a chartered arbitrator who has compared virtual and physical testimonies of witnesses, the former brings out a more revealing and lasting impression of the witnesses, as virtual testimonies can be viewed over and over and at closer ranges.
In his submission on the roles of stakeholders to make Virtual Proceedings work in Nigeria, Professor Fidelis Oditah QC, SAN, identified the stakeholders to include Judges, Lawyers, Litigants, Registry officials, the correctional centers, and witnesses amongst others, and noted that there must be a concerted effort to make virtual proceedings work. He recommended efficient case management driven by lawyers, narrowing down of issues at proceedings, implementing efficient E-Filing regime of court processes, lawyers and the court upgrading their ICT infrastructure and readiness. He calls for higher ethical standards of professionalism and for lawyers to refrain from clogging judicial proceedings with frivolous applications.
Drawing from his wide experience virtual hearings from several jurisdictions, Mr. Yash Kulkarni QC noted that virtual hearings could save time and cost for the parties thereby improving and expediting the delivery of justice. Nevertheless, he noted that virtual hearings were not without their problems especially the technological hitches and other practical challenges.
To ensure a technological hitch free virtual hearing season, Mr. Yash Kulkarni QC suggested that the following be in considered: –
- Platforms like Microsoft Teams, zoom with sufficient bandwidth and good computer systems should all be in place before the commencement of virtual proceedings to ensure smooth hearings.
- There must be a test-run with all parties and all should agree on tendering of documents before commencement.
- Issues between parties must be well considered and agreed upon before hearing and parties should pay close attention to their Written addresses.
At the end of the Webinar, a survey was undertaken and the result showed as follows:
- 99% of the webinar participants were left satisfied and highly impressed with the quality of the webinar including faculty and delivery, while just 1% was unsatisfied.
- 98% of the participants voted for the implementation of virtual proceedings.
- Over 85% of participants are litigation lawyers and judges;
- Participants with experience levels of 10 year and above accounted for 65% of participants while those with less experience load accounted for less than 35% of the participants.
The panelists and participants expressed their gratitude to the Federal High Court and Alliance Law Firm for putting the webinar together at this period of Covid 19 pandemic that had occasioned unprecedented disruptions; while the host on behalf of himself, the Board of Partners and Management of Alliance Law Firm expressed gratitude to the Chief Judge of the Federal High Court , Hon. Justice John Tsoho, and his representative, Hon Justice Inyang Ekwo; other panelists, Justices of the Court of Appeal and Judges of the superior Courts present for facilitating the webinar; other esteemed participants and members of the press for their active participation at the webinar, promising to make the video recording of the event available to participants and other stakeholders in the justice delivery stem of Nigeria.