Wednesday, 1 April 2020

COVID 19 PANDEMIC, ICT, THE NIGERIAN COURTS AND LAWYERS


The COVID 19 pandemic has led to the shutdown of many offices/businesses and lock down of many cities across the world. Nigeria is not left out of the shut down/lockdown and as a result, the courts in Nigeria are rendering skeletal services and only attending to matters that are time bound, essential or urgent pursuant to the directive of the National Judicial Council.

In Australia, the Supreme Court of New South Wales stated that it would take steps to minimize the need for parties to come to the Court through the use of online courts and telephone and video conferencing. Also in Australia, the Chief Justice of the State of Victoria announced that all new jury trials will be suspended, and the Federal Court of Australia announced that it will limit face-to-face hearings to essential matters only.

On 23rd March, 2020 the North Dakota Supreme Court heard three oral arguments using an online meeting application permitting seamless audio and video participation.

Three cases were discussed allowing the justices and attorneys, each physically in different locations, to appear together on the same computer screen and conduct business. The cases were broadcast live on the Internet. The lawyers presented their cases and the Justices questioned counsel, all in real-time and just as if the session was occurring live in the courtroom.

After the oral arguments, the Court met using another secure videoconferencing application to discuss the cases among themselves. The Court’s decision will be written by one of the Justices and released in the future.

In Kenya it was reported that Justice Hannah Okwengu of the Court of Appeal will deliver over 20 judgments and rulings of appeals and applications heard in Nairobi, Kisumu, Mombasa and Eldoret through video link and transmit others by email on Friday 3rd April, 2020. It was also reported that seven cases certified as urgent will be argued sometimes in April, 2020 through written submissions digitally transmitted to the Court. The decisions will likewise be so transmitted to parties/counsel.

The question that flows therefrom is whether the Nigerian courts can take advantage of the existing ICT tools or infrastructure; for example, video conferencing, email, SMS, etc., to enhance service delivery namely; hearing of cases, in this times of lockdown and even thereafter?

Considering the lack of stable electricity supply and lack of technology competence on the part of some judicial staff and lawyers alike, it would be doubly difficult leveraging on ICT to drive service delivery by the Nigerian courts. Nevertheless, the Nigerian Judiciary must start from somewhere. The Judiciary cannot afford to wait till all conditions are perfect before starting.

As far back as 2012, the then Chief Justice of the Nigeria, Justice Dahiru Musdapher, launched the Nigerian Judiciary Information Technology Policy (JITPO) at the National Judicial Council Complex in Abuja. He stated that that implementing the policy will assist the judiciary to meet the changing needs of the nation’s judicial officers, court employers, key stakeholders and the general public as according to him the policy will provide the needed foundation for the implementation of any Information Technology (IT) project in the judiciary.

Justice Musdapher charged the Nigerian Judiciary to embrace IT as a means of improving access to courts and increase transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expedite the judicial process.

The Judicial Information Technology Policy (JITPO) has not only endorsed the use of Video Conferencing, but has clearly laid down guidelines for its application to the Nigerian Courts. It provides as follows:
“The use of video-conferencing technology is greatly encouraged in the Judiciary. Video-conferencing can be used to connect people in different physical locations especially for critical meetings and discussions. Video conferencing systems can also be used to enable testifying witnesses appear in court without having to travel to the courtroom. Expert witnesses, prisoners, and various other witnesses can provide the same testimonies from remote locations. From the prison, prisoners will see and hear everything that takes place in the courtroom and will be able to answer questions posed to them by the judges and lawyers…Videoconferencing in the court system offers significant cost savings and improved security by reducing the need for high-security prisoner transport. The entire courtroom experience will be made shorter, safer and more cost-effective.”
Thus in 2016, in the case of FLORENCE ORIM vs. EDWARD ORIM, a Benue State High Court, sitting in Makurdi,  took the testimony of a witness who was in Japan via Skype.

As can be seen from the JITPO document, the Judiciary in Nigeria is acutely aware of the benefits of using technology to enhance and improve service delivery and access to justice. The JITPO policy document is about 8 years old now. The corona virus pandemic should spur the current head of the Judiciary and other stakeholders into fully putting into effect the laudable policies contained in the JITPO and if necessary even amending the policy to bring it up to date with current realities.

If the policy is fully implemented and the rules of some courts are tweaked, there is no reason why certain matters cannot be completely held online using ICT tools or infrastructure. For example oral arguments in appeals at the Supreme Court and Court of Appeal can be held virtually or online after briefs have been filed and exchanged by parties. Briefs can even be filed and served electronically obviating the need for parties to visit the court’s registry for filing purposes.

Fundamental rights enforcement cases which do not necessarily need the physical appearance of parties and is usually dealt with by affidavit evidence and documents can be held online. Parties can electronically file their papers and they would be served electronically while adoption of written addresses and oral adumbration can be done via video conferencing.

Although there exist electronic filing system in the Lagos State Judiciary it is said to be fraught with so much inefficiency that it has been reduced to scanning of paper documents.

According to Funmilayo Odude, who I totally agree with:
“A more efficient technology-driven system would enable litigants and their lawyers enter their information and state their cases by filling relevant forms on the courts' website. The litigants would also be able to make payment of filing fees and other incidental expenses online. The final document bearing the suit number, stamp of the court and receipt for payment can, thereafter, be printed by the litigant or his or her legal practitioner and reproduced in the number of copies required. To further deepen the automation of court processes, the Legal Practitioners Act and the Evidence Act would need to be amended to allow for electronic stamps and electronic signatures, respectively. The process can, however, begin with the legal community lobbying the National Assembly for these amendments. In an automated environment, subsequent filing in a suit will be done online and a copy of what is filed can be sent to the email addresses of all the parties. The system of electronic filing described above is not impossible to implement in the federal courts or high courts of states in Nigeria. The Corporate Affairs Commission has successfully implemented an automated system.”

Many lawyers remain largely incompetent, or at least untrained, in technology. I meet these lawyers all the time — some who are proudly resistant to learning technology, others who simply have not taken the time. Such lawyers must become computer literate in order for them to function effectively and deliver their services in this changing world of legal practice.

In the United States, following a 2012 modification to the American Bar Association’s Model Rules of Professional Conduct, lawyers in America are required to stay abreast of changes in the law and its practice, including the benefits and the risks associated with relevant technology. The duty of competence of lawyers in the United States includes both substantive knowledge of law and competent use of the technology that lawyers use to practice law. Lawyers in America are expected to take reasonable steps to understand how technology may affect their legal representation.

Commenting on the 2012 modification to the American Bar Association’s Model Rules of Professional Conduct, Andrew Perlman said:
“The seemingly minor change to a Comment to Rule 1.1 of the American Bar Association’s Model Rules of Professional Conduct captures an important shift in thinking about competent twenty-first century lawyering. Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.”

Maybe it is time for the Rules of Professional Conduct for Legal Practitioners in Nigeria to be amended in that regard. Also the time has come for the Judiciary in Nigeria to upgrade its use of ICT tools in service delivery as envisioned in the JITPO.


Wednesday, 27 November 2019

WHY THE HATE SPEECH BILL MAY BE UNCONSTITUTIONAL




This write up is an expansion on the tweeter thread by Dr Omole (Analysing the Proposed HateSpeech Bill) and also partly in  response to Umar Sa’ad Hassan who wanted a “good or right reason” for the rejection of the National Commission for the Prohibition of Hate Speech Bill (Hate Speech Bill). According to Mr Umar:
Over the last couple of days, I have seen people I would have never expected to, hop blindly on the bandwagon and say the social media and hate speech bills are unconstitutional. As a matter of fact, nothing could be farther from the truth. Section 39 of the constitution guarantees freedom of speech but it doesn’t guarantee the dissemination of falsehood and the making of offensive statements capable of inciting trouble. Both proposed legislation are clear as to intent and it is preposterous for anyone to out rightly tag them an anti-free speech.”
It is a truism that the freedom of expression guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN) is not absolute. See sections 39(3) and 45(1) of the CFRN.
The Hate Speech Bill is unconstitutional because the provisions creating the offences are overly broad, vague and are not reasonably justified in a democracy. Section 36(12) of the CFRN requires that before any person may be punished for a crime, the offence and penalty should be defined in a written law. By that section a penal provision in law especially a criminal law, ought to state or define with clarity the conduct it is proscribing so that citizens can know what exactly constitutes an offence. This is to allow citizens to be able to arrange or conduct their affairs within the limits of the law. This is also to avoid arbitrary enforcement and abuse of the law by law enforcements. However, an examination of the sections creating offences under the bill reveals that the bill has failed to state with sufficient clarity what for e.g. is an “offensive environment” or “hate speech”. So if a citizen does not know what is offensive environment or hate speech how is supposed to keep the law? No one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it.

In TAFIDI v. FRN(2013) LPELR-21B59(SC) Akaahs, JSC JSC held that: “Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the court."
In the 17th century Bacon proclaimed the essential link between justice and legal certainty:
“For if the trumpet gives an uncertain sound, who shall prepare himself to the battle? So if the law gives an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes … Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known and certain law … Nor should a man be deprived of his life, who did not first know that he was risking it.' (Quoted in Coquillette, Francis Bacon pp 244 and 248, from Aphorism 8 and Aphorism 39- A Treatise on Universal Justice).
In the American case of Ex Parte Bradshaw, 501 S.W.3d 665, 673 (2016) it was observed that:
“A statute is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ about its application. All criminal laws must give fair notice about what activity is made criminal. However, a statute need not be mathematically precise; it must only provide fair warning in light of common understanding and practices.”
Common persons in Nigeria would necessarily have to guess at what is meant as offensive environment or hate speech as provided under the bill. Due to its many vague provisions the bill fails to provide guidance to prevent arbitrary and discriminatory enforcement.

Section 4 of the Hate Speech Bill provides that any person who uses, publishes, presents, produces, plays, provides, distributes and/or directs the performance of any material, written and or visual which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria. According to the bill, any person who commits this offence shall be liable to life imprisonment and where the act causes any loss of life, the person shall be punished with death by hanging.

It is a cardinal principle of criminal law that before a person can be found culpable for committing a crime the prosecution must prove that there was mens rea and actus reus for the offence. In ABBAH v. FRN(2017) LPELR-43373(CA) Onyemenam, J.C.A. at Pp. 19-20, Paras. B-D) held:
"The latin word mens rea is the state of mind the prosecution must prove, that the accused person had when committing a crime in other to secure his conviction. It is the specific mental state; guilty mind; criminal intent; required: in conjunction with the actual criminal act (actus reus); for an accused person to be convicted of a crime other than strict liability offences.”
There are exceptions where there needs to be no guilty mind and such offences are called strict liability offences. Strict liability offences do not require a person to intend to do something wrong or morally blameworthy. However, strict liability is usually reserved for offences that are not grievous or carry a heavy penalty. Section 4 of the bill creates a strict liability offence which carries life imprisonment or death penalty, penalties which are no doubt very heavy. It is strict liability in that it provides that “…commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria.” So even where a person did not by his words or acts or behavior intend to to stir up ethnic hatred, but having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria the person would have committed a crime. This is a strict liability offence simpliciter because it does not require the person to have any guilty mind.

In view of the foregoing Section 24 of the Cybercrimes Act, 2015 which many commentators have cited as taking care of the offences created by Hate speech bill is debatable although its constitutionality has been upheld by the Federal High Court in OKEDARA v. ATTORNEY GENERAL OF THE FEDERATlON and by Court of Appeal in the INCORPORATED TRUSTEES OF PARADIGM INITIATIVE & 2 ORS v. A.G. FEDERATION & 2 ORS (Unreported decision of the Court of Appeal (Lagos Division) delivered on 1“ June, 2818 in APPEAL NO. CA/L/556/2017).  Appeal has been filed in the Supreme Court by the Incorporated Trustees of Paradigm Initiative & 2 Ors. Section 24 contains some vague terms like “grossly offensive” “manacing character” etc.

In 2009 it was reported that the office of the Attorney General of Mississippi was reluctant to file charges of cyberstalking under the state’s law because of “the number and difficulty of the elements that must be proven… for the example the Attorney General counted seven separate elements that must be proven for conviction under section (1)(c) of Miss. Code 97-45-15. He said the need to show knowledge and intent were the most difficult aspects of the law.”

In the Indian case of SHREYA SINGHAL & ORS. v.UNION OF INDIA, the Supreme Court of India was called upon to decide on the constitutionality of section 66A of the amended Information Technology Act of 2000 (which is similar to some extent with portions of section 24 of the Cybercrimes Act). Section 66A defined the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. The section specifically provided that:
Any person who sends, by means of a computer resource or a communication device,—(a) any   information   that   is   grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance,   inconvenience,   danger, obstruction,   insult,   injury,   criminal intimidation,   enmity,   hatred   or   ill   will, persistently   by   making   use   of   such computer resource or a communication device; or
(c) any electronic mail or electronic mail message   for   the   purpose   of   causing annoyance   or   inconvenience   or   to deceive or to mislead the addressee or recipient   about   the   origin   of   such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

In the case under reference two women were arrested by the Mumbai police in 2012 for comments they posted on Facebook. The arrested women were released later and the criminal cases against them dropped yet their arrests attracted widespread public condemnation. It was felt that the police had misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression. The Supreme Court of India in declaring section 66A unconstitutional held that that the terms:
“…annoying, offensive, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will" used in the section were vague and indefinite… the learned Additional Solicitor General argued before us that expressions that are used in Section 66A may be incapable of any precise definition but for that reason they are not constitutionally   vulnerable.     He   cited   a large number of judgments in support of this submission…In fact; two   English   judgments   cited   by   the   learned Additional Solicitor General would demonstrate how vague the words   used   in   Section   66A   are.     In Director of Public Prosecutions v. Collins, (2006)   1   WLR   2223, the  very expression “grossly offensive” is contained in Section 127(1) (1) of the U.K. Communications Act, 2003.   A 61 year old man made a number of telephone calls over two years to the office of   a   Member   of   Parliament.  In   these   telephone   calls   and recorded messages  Mr  Collins   who   held   strong   views   on immigration   made   a   reference   to   “Wogs”,   “Pakis”,   “Black bastards” and “Niggers”.  Mr. Collins was charged with sending messages which were grossly offensive.  
The Leicestershire Justices dismissed the case against Mr. Collins on the ground that   the   telephone   calls   were   offensive   but   not   grossly offensive.  A reasonable person would not so find the calls to be grossly offensive.   The Queen’s Bench agreed and dismissed the appeal filed by the Director of Public Prosecutions.   The House of Lords reversed the Queen’s Bench stating:
“The   parties   agreed   with   the   rulings   of   the Divisional   Court   that   it   is   for   the   Justices   to determine as a question of fact whether a message is   grossly   offensive,   that   in   making   this determination the Justices must apply the standards of an open and just multi-racial society, and that the words   must   be   judged   taking   account   of   their context   and   all   relevant   circumstances.   I   would agree also. Usages and sensitivities may change over   time.   Language   otherwise   insulting   may   be used in an unpejorative, even affectionate, way, or may   be   adopted   as   a   badge   of   honour   (“Old Contemptibles”). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably   enlightened,   but   not   perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates. In   contrast   with   section   127(2) (a)   and   its predecessor subsections, which require proof of an unlawful   purpose   and   a   degree   of   knowledge, section 127(1) (a) provides no explicit guidance on the state of mind which must be proved against a defendant   to   establish   an   offence   against   the subsection.”
Similarly   in Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s Bench was faced with the following facts:
“Following an alert on the Internet social network, Twitter, the defendant became aware that, due to adverse weather conditions, an airport from which he was due to travel nine days later was closed.  He responded by posting several “tweets” on Twitter in his own name, including the following: “Crap1 Robin Hood Airport is closed.  You’ve got a week and a bit to get your shit together otherwise I am blowing the airport   sky   high1”   None   of   the   defendant’s “followers” who read the posting was alarmed by it at the time.   Some five days after its posting the defendant’s tweet was read by the duty manager responsible for security at the airport on a general Internet   search   for   tweets   relating   to   the   airport. Though   not   believed   to   be   a   credible   threat   the matter was reported to the police.  In interview the defendant asserted that the tweet was a joke and not intended to be menacing.   The defendant was charged   with   sending   by   a   public   electronic communications network a message of a menacing character   contrary   to   section   127(1)(a)   of   the Communications Act 2003.  He was convicted in a magistrates’ court and, on appeal, the Crown Court upheld   the   conviction,   being   satisfied   that   the message   was   “menacing   per se”   and   that   the defendant was, at the very least, aware that his message was of a menacing character.”
The   Crown   Court   was   satisfied   that   the   message   in question was “menacing” stating that an ordinary person seeing the   tweet   would   be   alarmed   and,   therefore,   such   message would be “menacing”.   The Queen’s Bench Division reversed the Crown Court stating:
“Before concluding that a message is criminal on the basis that it represents a menace, its precise terms,   and   any   inferences   to   be   drawn   from   its precise terms, need to be examined in the context in and the means by which the message was sent. The   Crown   Court was   understandably concerned that this message was sent at a time when, as we all   know,   there   is   public   concern   about   acts   of terrorism and the continuing threat to the security of the country from possible further terrorist attacks. That is plainly relevant to context, but the offence is not   directed   to   the   inconvenience   which   may   be caused by the message.   In any event, the more one reflects on it, the clearer it becomes that this message   did   not   represent   a   terrorist   threat,   or indeed any other form of threat.  It was posted on “Twitter”   for   widespread   reading,   a   conversation piece   for   the   defendant’s   followers,   drawing attention   to   himself   and   his   predicament.     Much more significantly, although it purports to address “you”, meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security.  The grievance addressed by the message is that the airport is closed when the writer wants it to be open.  The language and punctuation are inconsistent with the writer intending it to be or it to be taken as a serious warning. Moreover, as Mr. Armson noted, it is unusual for a threat of a terrorist nature to invite the person making it to be readily identified, as this message did.  Finally, although we are accustomed to very brief messages by terrorists to   indicate   that   a   bomb   or   explosive   device   has been put in place and will   detonate shortly, it is difficult to imagine a serious threat in which warning of it is given to a large number of tweet “followers” in ample   time   for   the   threat   to   be   reported   and extinguished.”
These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”.  In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him.  Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or   “menacing”   are   so   vague   that   there   is   no   manageable standard by which a person can be said to have committed an offence or not to have committed an offence.  Quite obviously, a prospective offender of Section 66A and the authorities who are to   enforce   Section   66A   have   absolutely   no   manageable standard   by   which   to   book   a   person   for   an   offence   under Section 66A. This being the case, having regard also to the two English   precedents   cited   by   the   learned Additional   Solicitor General, it is clear that Section 66A is unconstitutionally vague.”
The court further held that:
“Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered...We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over-breadth.”
CONCLUSION
For the reasons adduced above it is submitted that the Hate Speech Bill is unconstitutional. Under international human rights standards, the right to freedom of expression is not absolute just like under the CFRN, and may exceptionally be subject to restrictions provided that those meet a strict three-part test, according to Article 19 (3) of the ICCPR, a convention which Nigeria has ratified. Hence, all state action targeting ‘hate speech’ must:
1.           Be provided by law; any law or regulation must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly, i.e. the law must be concrete, clear and unambiguous, such that it can be understood and applied by everyone. The law must provide sufficient guidance to those charged with its execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not;
2.           Pursue a legitimate aim, exclusively: respect of the rights or reputations of others; or the protection of national security or of public order, or of public health or morals. Principle XIII(2) of the Declaration of Principles on Freedom of Expression in  Africa  provides  that  freedom  of  expression  should  not  be  restricted  on public order or national security grounds “unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression”.
3.           Be necessary in a democratic society, requiring the State to demonstrate in a specific and individualized manner the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.





Wednesday, 7 November 2018

A GREAT DAY FOR ATM USERS IN NIGERIA


In February, 2016, a customer of FCMB Ltd tried to withdraw the sum of N8,000 from the ATM of UBA Plc. The ATM dispensed cash but before he could take it, the cash was retracted, nevertheless N8,000 was deducted from his account with FCMB Ltd. Efforts by the customer to get a refund of the N8,000 failed, as UBA insisted that the ATM paid him. The customer thereafter sued both banks for breach of contract and negligence.

In the case: Barr. Timothy Tion v FCMB Ltd and UBA Plc (MHC/161/16), filed at the Benue State High Court on Friday 13th May, 2016, the Plaintiff (customer) asked the court for the following reliefs:
(i)                        A declaration that the debit of the Plaintiff’s account to the tune of N8,000.00 only (Eight Thousand Naira) even as he got no value for the transaction amounts to a breach of contract by the Defendant’s jointly and severally.
(ii)                    A declaration that the debit of the Plaintiff’s account to the tune of N8,000.00 only (Eight Thousand Naira) when he got no value for the transaction amounts to negligence by the Defendant’s jointly and severally.
(iii)                 An order directing the Defendants jointly and severally to forthwith refund the sum of N8, 000.00 only (Eight Thousand Naira) debited from the Plaintiff’s account in spite of the fact that the ATM which the Plaintiff carried out the transaction partially dispensed cash but retracted the cash before the Plaintiff could take it.
(iv)                  An order awarding to the Plaintiff against the Defendants jointly and severally damages of N10, 000.00 (Ten Million Naira) for the untold hardship and inconveniences suffered by the Plaintiff as a result of the unlawful conduct of the Defendants.
(v)                      10% Per Annum as allowed by the High Court of Benue State (Civil Procedure) Rules 2007 on the entire judgement sum from the date of judgement till the entire judgement sum is finally liquidated.

UBA in rejecting the Plaintiff’s claim tendered in evidence ATM Electronic Journal Logs, ATM Camera Snapshots, CCTV Footage and Snapshots whereas FCMB did not tender any evidence in disproving the Plaintiff’s claim but only argued that they acted on a debit alert sent to them via Interswitch network by UBA to deduct N8,000 from the Plaintiff’s account and that they have they have their own ATMs yet the Plaintiff chose to use that of UBA.

In entering judgement for the Plaintiff the court found that UBA failed to show that the ATM paid to the Plaintiff the amount he set out to withdraw. The court also found FCMB liable for breach of contract and negligence for acting on the debit alert from UBA without ensuring that Plaintiff was actually paid. The court equally found UBA negligent for causing the Plaintiff’s account to be debited, even when the ATM failed to pay him the cash he had requested to withdraw.

According to His Lordship Justice S. O. Itodo who delivered judgement in the case on September 26, 2018:
“There is no doubt, that between the plaintiff and the 1st defendant, a Banker/customer relationship exists by a contract. The plaintiff’s case that he was not paid was not disputed by the 1st defendant which contend that it took steps to unravel the issue and resolve same, and that the debit of the plaintiff's account was caused by the 2nd defendant. Granted that the 1st defendant was not directly responsible for the deduction of the plaintiff's account but that it acted on a signal or alert from a third party which is the 2nd defendant, what step did the 1st defendant take to ascertain the genuineness of the alert from the 2nd defendant. In other words, did the 1st defendant verify the alert sent to it before deducting or debiting the plaintiff’s account? There is no evidence by the 1st defendant of the steps it took (if any) to ensure that the plaintiff was paid the sum of money he set out to withdraw other than the electronic message it received before debiting the account. It is not its case, that this electronic message was fool proof and admit of no error or that there could not be mechanical failure in its operation.
His Lordship also stated that:
“The 2nd defendant’s witness in his oral testimony did not adduce evidence showing which of the exhibits identified the plaintiff, which of them showing the transaction, and which of them which show the payment of the money to the plaintiff. The court not being a party to the dispute cannot be expected to do that for the defendant. Even though the court may not do so but nonetheless did, that exercise did not show, and therefore disprove the plaintiff's assertion that he was not paid. In any case the 2nd defendant is mindful that the ATM operation may not in all cases be without controversy and dispute such as there is in the present case, hence it went the extra mile to install cameras whose photographs are exhibits tendered by it. However as has been demonstrated, the pictures have not shown that the plaintiff was paid the money he went out to withdraw. In the circumstance, the 2nd defendant, just like the 1st defendant, cannot say that it was not negligent in ensuring that the plaintiff was paid, as a duty of care was created by virtue of the 2nd defendant displaying and making its ATM available to the banking public and not only its customers.”
In conclusion His Lordship held that:
“…the plaintiff established and proved his case that the defendants were negligent in not ensuring that he was paid before deducting or debiting his account. Consequently Judgment is entered in his favour in terms of reliefs 46(1)(ii) (iii) and (v) while a further sum of Five Hundred Thousand Naira (N500,000.00) is awarded for the hardship and inconveniences suffered by him.”
This decision, unlike the one in Kume Bridget Ashiemar v. GT Bank Plc and UBA Plc, is a welcome relief to many bank customers in Nigeria who have experienced ATM dispense errors and failed to get a refund. It also demonstrates that customers can sue banks in such cases and get justice. The decision should therefore serve as a source of courage to bank customers in Nigeria who wish to sue errant banks.  Until the banks are sued and decisions given against them, the sole efforts of their regulator, the Central Bank of Nigeria, in ensuring that they serve their customers better may not be enough.

Sunday, 29 July 2018

THE TAKING OF WITNESS EVIDENCE THROUGH VIDEO CONFERENCING UNDER NIGERIAN LAW




INTRODUCTION
Technological developments in the field of information and communication technology (ICT) have brought a turning point in the history of human civilization. It has brought about numerous changes and innovations in all fields of human activity. It has resulted in enhanced efficiency, productivity and quality of output in every walk of life. There is an immediate need for exposing the judiciary to the numerous benefits of utilising ICT in judicial administration, to enable the Judiciary fulfil its constitutional role of justice delivery to all without fear, favour or discrimination.

VIDEO CONFERENCING
“Videoconferencing is the holding of a conference among people at remote locations by means of transmitted audio and video signals. Through these conferences, individuals meet one another in a real-time virtual manner as if they were in the same room without the hassle and expense of traveling.  While slight limitations remain depending on the quality of the equipment employed by courts, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology.”
Video Conferencing (VC) enables any person who has an interest in court proceedings to be involved in a hearing from a remote location. In its simplest form, a witness at a remote location may give his/her evidence via a video link to the court with one screen and one camera in the courtroom.

The technology needed to establish a video link is relatively simple. A screen and a camera with a microphone are required at each location. Any form of screen can be used. Also using the popular video chatting application; Skype, a witness in remote location can testify in a trial. All that may be required at the his end would be an Internet enabled smartphone or laptop computer and in the courtroom an Internet enabled laptop computer and perhaps a projector to project the visuals and a sound system to amplify the audio to the hearing of all in the court room.

VC remains a viable method to obtain testimony as a witness’s presence at trial may be hindered by geographical impediments, fears associated with testifying in person, or even lack of security at the trial site. Through videoconferencing, unavailable witnesses can be transmitted into courtrooms, thus eradicating the limitations on testimonies of encumbered individuals as well as individuals located worldwide.

LEGAL AND POLICY FRAMEWORK FOR USE OF VIDEO CONFERENCING IN TAKING WITNESS TESTIMONY
The primary legal framework for the use of VC in taking witness testimony is section 125 of the Evidence Act, 2011 which provides that all facts, except the contents of documents, may be proved by oral evidence.  Oral evidence simply put is the verbal assertion or written statement on oath of a witness offered as proof of a fact or facts in issue at a trial. Therefore, by the above provision it is submitted that a witness who testifies through video conferencing is doing so orally and that would suffice as there is no requirement in the Evidence Act that a witness must be physically present in court to give evidence provided the court can observe his demeanour while testifying through VC.

Also section 234(3) of the Administration of Criminal Justice Act, 2015 provides that where in any proceedings the court determines it is necessary to protect the identity of the victim or a witness the court may receive evidence by video link.

Although under the National Industrial Court (NIC) Rules, 2017 there is no express provision for use of video conferencing in taking witness testimony, Order 3 of the Rules state that the Court may direct a departure from these Rules where the interest of justice so requires.

Furthermore, Order 6(2)(a) and (b) provides that in any proceeding pending before NIC, the Court may as a specialized Court regulate its procedure and proceedings as it thinks fit in the interest of justice and fair play and in appropriate  circumstances,  depart  from  the  Evidence Act  as provided in section 12 (2) (b) of the National Industrial Court Act, 2006 in the interest of justice, fairness, equity and fair-play.

Order 6(3) stipulates that in any proceeding before the NIC, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.

By Order 9(1) where a matter arises for which no provisions or adequate provisions are made in NIC Rules, the Court may adopt and apply any procedure as will in its view do substantial justice to any of the parties concerned in the matter. Under this particular provision, even though video conferencing may not have been provided by the rules of the NIC, the Court may nevertheless allow use of video conferencing where doing so may do substantial justice to any of the parties.

Again, Order 9(2) further provides that the NIC Rules are to be applied by the Court as it considers fit and the Court may depart from the rules of evidence in the interest of justice as provided in Section 12(2)(b) of the National Industrial Court Act, 2006.

In view of the above provisions, it is submitted that a witness in a trial or proceeding at the NIC, may be allowed to offer his testimony through video conferencing in the interest of justice, fairness, equity and fair-play. The NIC in such a circumstance will not be beclouded by technicalities but will only consider whether using video conferencing may do justice to the parties in the case before it.

In 2012, the then Chief Justice of the Nigeria, Justice Dahiru Musdapher, launched the Nigerian Judiciary Information Technology Policy (JITPOat the National Judicial Council Complex in Abuja. He stated that that implementing the policy will assist the judiciary to meet the changing needs of the nation’s judicial officers, court employers, key stakeholders and the general public as according to him the policy will provide the needed foundation for the implementation of any Information Technology (IT) project in the judiciary.

Justice Musdapher charged the Nigerian Judiciary to embrace IT as a means of improving access to courts and increase transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expedite the judicial process.

The JITPO has not only endorsed the use of Video Conferencing, but has clearly laid down guidelines for its application to the Nigerian Courts. It provides as follows:
“The use of video-conferencing technology is greatly encouraged in the Judiciary. Video-conferencing can be used to connect people in different physical locations especially for critical meetings and discussions. Video conferencing systems can also be used to enable testifying witnesses appear in court without having to travel to the courtroom. Expert witnesses, prisoners, and various other witnesses can provide the same testimonies from remote locations. From the prison, prisoners will see and hear everything that takes place in the courtroom and will be able to answer questions posed to them by the judges and lawyers…Videoconferencing in the court system offers significant cost savings and improved security by reducing the need for high-security prisoner transport. The entire courtroom experience will be made shorter, safer and more cost-effective.”
In ESSO WEST AFRICA INC. v.  T. OYEGBOLA (1969) NMLR 198, the Supreme Court pronounced that: “The law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer”.

The Court of Appeal, relied on the concept of judicial notice in admitting a computerized document in OGOLO v. IMB (NIG) LTD. (1995) 9 NWLR (Pt 419) 324. The court held that it had become a notorious fact that commercial and banking operations in Nigeria had changed in keeping with the computer age such that the court could take judicial notice of them under section 74 of the old Evidence Act.

In OKEREKE v. UMAHI & ORS (2016) LPELR-40035(SC) NWEZE, J.S.C. at P. 36, Paras. A-B, held on the definition of "CARD READER": thus:
"According to Wikipedia, the Free Encyclopaedia, the INEC card reader is  a  portable  electronic  voter  authentication  device.  Designed, specifically,  for  the  accreditation  process  for  the  authentication  of eligible voters before voting, the machine was configured to read only the PVCS of a particular polling unit and can only work on Election Day, Wikipedia,  the  Free  Encyclopaedia,  (last  accessed  on  January  30, 2016)".
Furthermore, in MRS.BETTY DAREGO v. A. G. LEVENTIS (NIGERIA) LTD & 3 ORS, LER[2015]CA/L/481/2011, the Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word "PREPONDERATE" thus:
“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the Latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.”

In the above cases, it can be seen that the court used a dictionary available on the web: dictionary.com and Wikipedia.com to define the word "preponderate" and “card reader” respectively. Before now the justices would have most likely resorted to the traditional lawyers’ dictionary; the Black’s Law Dictionary, but in this instance they did not. It is therefore good to note that our Lordships are utilizing the web to research and cite same as sources of information in their judgments. This is a welcome development. It means that our courts are not oblivious of technological advancements or ICT and how they can be used to aid the administration of justice.

It is therefore not surprising that the JITPO enjoins the judiciary not to “turn a blind eye to the mysteries of the computer” which necessarily includes the use of video conferencing for taking witness testimony, but to embrace ICT as means of improving access to courts, increasing transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expediting the judicial process. The use of video conferencing no doubts contributes to the expediting of the judicial process by saving costs and delays as witnesses can testify from any location without necessarily being physically present in the court room.

In view of the foregoing, it is submitted that a court of law in Nigeria is allowed to make use of video conferencing for taking witness testimony where the interest of justice would be served. The courts are not to rely on technicalities or the lack of a specific provision for video conferencing in our substantive or procedural laws to reject the use of video conferencing.

EXAMPLES FROM FOREIGN JURISDICTIONS

UNITED STATES
In the United States certain district courts are allowed to use videoconferencing for prisoner civil-rights-pretrial proceedings. The US Courts of Appeals for the Second, Tenth and District of Columbia, Circuits use videoconferencing for oral arguments.

In MARYLAND v. CRAIG 497 US 836 (1990) the US Supreme Court accepted child witness testimony via one-way video. In HARRELL v. STATE, 709 So. 2d 1364 (Fla. 1988), the Florida Supreme Court sustained a robbery conviction based largely on the two-way video testimony of complainants testifying from Argentina. Rule 3.190(J) of the Florida Rules of Criminal Procedure provides the circumstances under which and procedure by which a party can take a deposition to perpetuate testimony for those witnesses that are unavailable. Thus, in all future criminal cases where one of the parties makes a motion to present testimony via videoconferencing, it is incumbent upon the party bringing the motion to:
(a)             verify or support by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing; and
(b)            establish that the witness’s testimony is material and necessary to prevent a failure of justice.

If all the above requirements are met the court is allowed to make use of videoconferencing to take witness testimony.

UNITED KINGDOM
In the UK, the Access to Justice Act, 1999 allows VC to be used for civil hearings, e.g. case management conferences, ancillary relief hearings, overseas or remote witnesses or in any civil cases in which the court directs the use of video and the parties involved consent to its use.
Furthermore in the UK, Section 51 of the Criminal Justice Act 2003 enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of the efficient or effective administration of justice.
Section 51 was piloted in 5 Crown Court centres and was restricted to serious sexual offences. The Criminal Justice Act 2003 (Commencement No. 24 and Transitional Provisions) Order 2010 extended live links to all witnesses in all cases for all criminal offences in all courts and came into force on 26 April 2010. The witness does not have to be a special 'category' of witness (for instance vulnerable or intimidated as defined by the Youth Justice and Criminal Evidence Act 1999 [YJCEA]).
"Live link" is defined in section 56(2) and will usually mean a closed circuit television link, but could apply to any secure technology with the same effect such as video conferencing facilities or the internet.
The benefits of the effective use of section 51 live links include a reduction in waiting times for professional and expert witnesses and reducing delay in the listing of some cases.
A court may only authorise the use of a live link if it is in the interests of the effective or efficient administration of justice for the witness to give evidence by way of a live link - for example, a witness may be able to give evidence from a court in a different part of the United Kingdom rather than have to travel to the trial court (subsection (4)[a]).
Section 51(6) sets out the matters that the court must consider when deciding whether to authorise the use of a live link (subsection (6)). These are: 
(i)the availability of the witness; 
(ii) the need for the witness to attend in person;
(iii) the importance of the witness's evidence to the proceedings; 
(iv) the views of the witness; 
(v) the suitability of the facilities at the place where the witness would give evidence through a live link; 
(vi) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence.
Section 52 provides that where a direction for a live link has been given that witness must give all their evidence through a live link. This makes it clear that any cross-examination of the witness is also to be given by live link, although the court can rescind a direction if it seems to be in the interests of justice to do so.
Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court.
CANADA
In the Canadian case of CHANDRA v. CBC, 2015 ONSC 5385 (CanLII), a few days before the commencement of trial, the defendants requested that five of their witnesses four of which lived in the UK and one in the United States, be permitted to testify via video-conference at the trial. The plaintiffs opposed the request but the court overruled them and noted that Rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video conference. If the parties both do not consent to a witness giving evidence by telephone or video-conference then it is open to the court on motion or on its own initiative to make an order directing a telephone or video conference on such terms as are just.

The court further noted that the factors to be considered in exercising this discretion are set out in Rule 1.08(5) and are as follows:
(a) The general principle that evidence and argument should be presented orally in open court;
(b) The importance of the evidence to the determination of the issues in the case;
(c) The effect of the telephone or video conference on the court's ability to make findings, including determinations about the credibility of witnesses;
(d) The importance in the circumstances of the case of observing the demeanour of a witness;
(e) Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;
(f) The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and
(g) Any other relevant matter.

The court also held that:
"While the general principle that trial evidence should ordinarily be presented orally is clearly and unequivocally articulated by rule 1.08(5)(a) it is appropriate, particularly in light of the culture shift advocated by the Supreme Court of Canada, to take a 21st century view of the use of video conferencing (and similar technologies)....The use of video or similar technologies does not now represent a significant deviation from the general principle favouring oral evidence in court. Such evidence is given orally, under oath or affirmation, and is observable "live" as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time…a court should be reluctant to deprive itself and the parties of the opportunity to receive the testimony of a non-party witness through video conferencing."

SOUTH AFRICA
In South Africa section 158 of the Criminal Procedure Act 1977 (Act No. 51 of 1977, as Amended up to Criminal Law (Forensic Procedures) Amendment Act, 2010), provides that criminal proceedings take place in the presence of the accused. An exception is provided for in section 158(2)(a) namely:
“(2)(a) A court may, subject to section 153, on its own initiative or on application by the public prosecutor, order that a witness or an accused, if the witness or accused consents thereto, may give evidence by means of closed circuit television or similar electronic media.
(b) A court may make a similar order on the application of an accused or a witness.
(3) A court may make an order contemplated in subsection (2) only if facilities therefore are readily available or obtainable and if it appears to the court that to do so would –
(a) prevent unreasonable delay;
(b) save costs;
(c) be convenient;
(d) be in the interest of the security of the State or of public safety or in the interests of justice or the public; or
(e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings.
(4) The court may, in order to ensure a fair and just trial, make the giving of evidence in terms of subsection (2) subject to such conditions as it may deem necessary: Provided that the prosecutor and the accused have the right, by means of that procedure, to question a witness and to observe the reaction of that witness.
(5) The court shall provide reasons for refusing any application by the public prosecutor for the giving of evidence by a child complainant below the age of 14 years by means of closed circuit television or similar electronic media, immediately upon refusal and such reasons shall be entered into the record of the proceedings.”
INDIA
In the India the courts are allowed to make use of videoconferencing facilities to receive  evidence  and  submissions  from  witnesses  or  persons  involved  in  court proceedings  in  circumstances  where  it  would  be  expensive,  inconvenient  or  otherwise  not desirable  for  a  person to  attend  a  court  in  person.  An  over-riding factor  is  that  the  use  of  video-conferencing  in  any  particular  case  must  be consistent  with  furthering  the  interests  of  justice  and  should  cause  minimal disadvantage to the parties. However, it is for the Court to decide whether evidence should be recorded by video-conferencing.

“Wherever  possible,  proceedings  by  way  of  video  conference  shall  be conducted  at  Judicial  proceedings  and the  same  courtesies  and  protocols  will  be observed.  All, relevant statutory provisions applicable to judicial proceedings including the provisions of the Information Technology Act, 2000 and the Indian Evidence Act, 1872 shall apply to the recording of evidence by video conference. Video conferencing facilities  can be used in all  matters  including remands, bail  applications  and  in  civil  and  criminal  trials  where  a  witness  is  located intrastate,  interstate,  or  overseas.  However, these guidelines will not apply to proceedings under section 164 of Criminal Procedure Code.
The guidelines further provides that: “a court may either suo moto or on application of a party or a witness, direct by a reasoned order that any person shall appear bef9re it or give evidence or make  submissions to the Court through video conference.”

CONCLUSION
ICTs play a key role in managing case load, publishing information for court users, managing knowledge within the court, supporting the preparation and conduct of litigation and presenting evidence and preparing and publishing judgments.

It is proposed that the various rules of courts of the various courts in Nigeria and the criminal procedure laws of the various states should be amended to specifically provide for videoconferencing and the use of technology in assisting remote witness testimony. Doing so would provide a uniform set of guidelines or rules to be adopted by the courts in making use of video conferencing whenever the need arises.

POSER
Section 212 provides that on the application of either party, or of its own motion, the court may order witnesses on both sides to be kept out of court; but this provision does not extend to the parties themselves or to their respective legal advisers, although intended to be called as witnesses. 

So assuming two witnesses are to testify from a remote location through VC, how can the court determine that the other witness is not hiding out of view of the video camera and watching and listening to the other witness as he testifies? By section 212 above, a witness in a case except where is a party to the case, is not allowed to be in court while a witness is testifying.