LANRE ADEWOLE and YEJIDE GBENGA-OGUNDARE examine the RCP concept and the controversies around it.
IN 2020, at the height of the COVID-19 pandemic, then-Chief Justice of Nigeria, Muhammad Tanko, issued a Practice Directive, putting an official imprimatur on Remote Court Proceeding, with court proceedings being conducted electronically.
The global phenomenon was accepted by all judicial stakeholders in Nigeria at that time, in order not to have the entire justice sector shut down, and having pressing cases, particularly those that bordered on fundamental human rights, indefinitely shut out, thereby keeping innocent detainees, in detention longer than necessary.
Since then, the leadership of the judiciary, particularly the coordinating National Judicial Council (NJC), has tried to expand the concept of RCP, to facilitate deeper access to justice and effective justice delivery system, with noticeable speed, especially in criminal justice system, which has many suspects standing trial, or as Awaiting Trial Inmates (ATI).
To this end, NJC equipped the Federal High Court in Abuja and Lagos, as well as the Supreme Court and the Court of Appeal, Abuja, with facilities for Remote Court Proceeding or what is simply known as e-proceeding.
Today, inmates stay back in Kuje Correctional Centre to have their cases tried as scheduled, by just staying in front of the digital equipment provided by the Council.
Findings also showed that the Council has practically digitalized all its activities and in the process, eliminating the stress on its members, judicial officers, and petitioners, in the engagement of statutory duties.
For example, judges now submit their mandatory quarterly reports to the Council, online, instead of travelling down to Abuja from different parts of the country, with the attendant risk.
Judicial officers are required by NJC’s regulation to deliver six judgements per quarter and defaulting is met, with query. After three queries, a defaulting judge would be summoned to explain why he should remain on the bench.
Objection
Despite the value that RCP is widely deemed to be adding to the justice sector in Nigeria, as a global practice standard, one vocal argument against it, is around the constitutionality of remote proceedings. This argument rests heavily on the interpretation of Section 36 of the Constitution that requires that all hearings by courts and tribunals must be held in the public.
The view is that holding court sessions remotely or virtually would breach this constitutional requirement since members of public will not readily participate in the virtual court hearing.
In their well-applauded paper, titled
“Remote Court Proceedings in Nigeria: Justice Online or Justice on the Line”, two lawyers, Olubukola Olugasa and Abimbola Davies, hold that experience has shown that variance between traditional court system and remote court system, could be significant.
Speaking on the adoption of RCP in Nigeria, they said, “The requirements of the entire gamut of law have been developed over the years as is the practice in common law, and have been translated into the judicial process across traditional physical courts in Nigeria.
“Providing leadership, the remote court proceeding was recommended by the then Chief Justice of Nigeria by way of circular NJC/CIR/HOC/II/656 in April 2020 to mitigate the suspension of courts activities during Covid-19 pandemic.
“Following the recommendation, Heads of Courts issued Practice Directions for remote court sitting pursuant to powers granted by Constitution.
“The Practice Directions varied fairly in the level of details covered but specific attention would be paid to Remote court Practice Direction of Lagos State, Ogun State, Rivers State and Abuja.
“For the courts whose Practice Directions also gave specific guidance on the court hearing, some of the suggested practices were/are at variance with court practices under the traditional court system.”
Kano debacle
E-proceedings received significant attention last week when Justice Abdullahi Muhammad Liman of the Federal High Court in Kano, issued an interim order, temporarily stopping the reinstatement of Sanusi Lamido Sanusi as Emir of Kano, by the appointing authority, Governor Abba Kabir Yusuf.
He was ruling on a motion brought by Aminu Babba Danagundi, the Sarkin Dawaki Babba.
Expectedly, the state government, led by the governor, expressed serious objection to the order and a major talking point, was that the judge was in faraway United States of America when he issued the order, which the appointing authority spurned by going ahead with the reinstatement.
On the basis of the court order, the deposed emir Aminu Ado Bayero, returned to the state, claiming he remains the lawful emir.
Curiously, instead of the National Judicial Council (NJC), with power to sanction errant judicial officers, the governor threatened to report the judge to the Nigeria Governors’ Forum (NGF), a non-constitutional body, without statutory powers of discpline over judicial officers, though governors are appointing authorities for judicial officers, serving in states.
Justice Liman is a federally-appointed judge, whose fate rests only in the hands of the Council and the President.
After disregarding the order of the federal High Court, the embattled state government on Monday went before a Kano High Court, for an order, forcing Bayero out of the palace he currently occupies and out of the state. The order, expected to be complied with, and enforced, by the Federal Government, was granted.
NJC speaks
The Council, which retains the power to discpline over the two judges in Kano emirship saga, has unofficially notified that Justice Liman has no case to answer, per where he conducted the proceeding the Kano State government is complaining about.
Speaking further on the unfolding judicial involvement in the Kano saga, a very senior official of the Council, pointed out to The Jury that those who were asking why the matter was assigned to Liman, who was in the USA, lacked understanding.
According to the official, there is only one Federal High Court in Kano and the parties in the filed motion, showed that it was a case to be heard by the federal high court.
“So it (the motion) had to be heard by the federal high court and there is only a federal high court in Kano, so the CJ (chief judge of the FHC), was right to assign the matter to him.
“And it doesn’t matter if he was abroad, as long as the necessary parties are available and agree to remote hearing of the matter.
“In this instance, just a party was expected to be available because it was an interlocutory request and the party; the applicant, was available. Forget this uninformed argument about time zone, it doesn’t affect only Nigeria and remote proceeding is now a global phenomenon.
“The judge would have been in some kind of trouble if he had granted an order, considered frivolous. But in this case, the appointment letter was to be given the next day, so there was a proper res, to preserve.”
Apart from being very certain Justice Liman would not be sanctioned by the Council for conducting remote proceeding, the senior official lamented the lack of awareness among Nigerians about the benefits of remote proceeding.
“Here at the Council, a lot of our activities are conducted remotely. This is technology age. Commitee meetings are conducted electronically. Even Council meetings; once we give password and ID to members who can’t be physically present, everyone will participate and we would be seeing and hearing ourselves clearly. All needed, is a big screen.
“The Council has done so much in this regard to facilitate speedy dispensation of justice. It is just sad that judiciary isn’t allowed to advertise what it is doing. A lot of ground has been covered in this regard.”
Earlier, a Council source had disclosed that “A lot has been done by the Council to bring the system to global standard practice. The judge did no wrong by hearing the motion while in the US. There is nothing to punish him for over that.
“Recently, someone petitioned a judge. The day the petition was heard here (at the Council), only his lawyer was present, the petitioner was in Dubai and the proceedings was conducted electronically. He was led and cross-examined electronically. He didn’t have to be here in Nigeria, to get the job done.
“It is just sad that Nigerians aren’t aware of the efforts we have made to make hearing of cases much easier. It is the trend globally.
“There are times close to five Council members won’t be physical available for meetings here, yet they participate fully.”
Lawyer’s view
Barrister Kunle Abimbola, Vice chairman, NBA Ibadan bar said, “e-proceedings are the means and methods which allows a party to a matter in court to utilize electronic devices and tools to put his/her case before a court.
“These proceedings have now been incorporated into our various Rules of Courts including the High Court Rules and Administration of Criminal Justice Laws of several states, the Federal High Court Rules, the National Industrial Court Rules as well as the Court of Appeal and the Supreme Court Rules as well as the Administration of Criminal Justice Act.
“These Rules and Laws/Acts seek to make our courts more accessible and indeed aid the administration of justice in the country. These Rules were being gradually absorbed into our jurisdiction until the COVID-19 pandemic started and this indeed fast tracked the urgent embrace of the process in the country.
“Even though we are yet to get there when we compare what we have to what is presently obtainable in other jurisdictions across the globe including even a few African countries, the fact that we keep improving on it day by day shows that we are making much progress in some of the courts now.
“You can not only file processes electronically, you can conduct trials even when your client is far away from the country. In some of our courts like the National Industrial Court, you can even download your judgment and thereafter get it certified in the court Registry.
However, it comes with the challenge of infrastructures which are not yet in place in some of our courts and that needs to be addressed” he reasoned.
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