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 23^rd 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.