COVID-19 and the Nigerian Justice System: Challenges The Bench And Bar Should Expect After The Pandemic And The Way Forward

ABSTRACT

The outbreak of the Coronavirus
Disease- (COVID-19) has brought about unprecedented global downturn and adverse
impact on the Nigerian justice system and its activities. The pandemic had its
first show on human stage towards the end of 2019 in Wuhan which happens to be an
emerging business hub of China, this unprecedented disease outbreak is recorded
to have caused the untimely death of not less than 185,434 persons globally and
infected over seventy thousand individuals within the first fifty days of the
epidemic.[i]
This virus was reported to be a member of the β group of coronaviruses and
scientifically described as an infectious disease caused by severe
acute respiratory syndrome coronavirus 2 (SARS-CoV-2).[ii]  There is no doubt that the outbreak of
COVID-19 pandemic has  a negative effect
on the Nigerian Justice System, activities of judicial officers, legal
practitioners, law firms and the Nigerian Bar Association at large and this
paperwork seeks to consider the post Covid-19 pandemic challenges on both the Bench and the Bar and probable solutions to remedy
the situation.

INTRODUCTION

It is common news that the Nigerian Judiciary had made swift decisions to ensure the protection of justices, judges and
staffs of courts and further undertook 
preventive measures on the spread of 
CORONA VIRUS (COVID-19) . The Chief Justice of
Nigeria (CJN) and the Chairman of the Nigerian
Judicial Commission, HON. DR. JUSTICE I. TANKO  MOHAMMED, CFR, JSC had earlier
directed
all Heads of Courts by  circular No.
NJC/CIR/HOC/11/631 dated 23^rd March, 2020 to suspend Court sittings
for an initial period of two weeks from 24th March, 2020 except for the purpose
of dispensing matters that are urgent, essential or time bound in line with the
extant laws of Federal Republic of Nigeria.[iii]  A circular was further released to that
effect on the 6^th of April, 2020 , extending the suspension of Court
sittings till further notice, given the lockdown measure put in place by
Federal and some state governments to curb the spread of COVID-19.[iv]

Similarly, the Nigerian Bar Association
has also put up measures to ensure the protection and welfare of the members of
the bar, the chairman of the Nigerian bar Association Dr. Paul Usoro SAN had on
16^th of April, 2020 announced the 18 (eighteen) men welfare
committee to provide strategic insight on how to provide palliatives to
indigent registered members of the Bar and also made provisions for online
payment of the Bar Practicing Fee before the statutory March 31^st
deadline.

In the same light, the Lagos State Judiciary issued practice directions
to guide remote hearing of court cases in the state to ensure that cases are heard and disposed of
urgently. The Chief Judge, Hon Justice Kazeem Alogba remarked that the practice
directions were made pursuant to Section 6 subsection 6, Section 274 of the
1999 constitution as amended, Section 87 subsection 1 of the High Court of
Lagos 2015 and other enabling legislation. The guidelines which becomes
effective from 4^th of May 2020 makes reasonable provision for
preparation and conduct of remote hearings, electronic filing and service of
court processes, electronic payment of filing fees, remote hearings on Zoom,
Skype, or any other video communication approved by the court,  adoption of written addresses, and a notice
of delivery of rulings and judgments. He added that the practice direction
applies to new and urgent cases, pending cases involving urgent and time-bound
applications such as bail hearings, fundamental human rights matters, rulings,
judgments, and any other matter approved by the Chief Judge.[v]

It is noteworthy that even though the
governing authorities of the bench and bar had made applaudable attempt to
reduce the effect of the covid-19 pandemic on its members, they must also put
up measures for the post lockdown challenges as failure to do so will have
negative consequences on both members of the Bench and the Bar.

Ø
CHALLENGES

We will therefore consider some of the
post Covid-19 pandemic on the Nigerian justice system which are but not limited
to the following

·       
Backlog of Pending Cases

The Nigerian judicial system has over
time been known to have numerous pending cases before both the inferior and
superior courts of records taking cognizance of 
the inadequate number of judges in Nigerian courts, Cases today
certainly take longer time to be finalized leading to adjournment upon
adjournment before verdicts  are finally
passed unlike in cases where there are adequate number of judges to reduce the
average workload per judge.

It is glaring that despite the volume
of cases, the courts has had to proceed on an unavoidable indefinite suspension
of judicial activities since the 23^rd of March, 2020 and  as a result parties in pending cases would
show up around court buildings immediately after the lockdown is over.

In consideration of the prevailing
information about the inadequate number of judicial officers in Nigerian
courts, it is an infallible proposition that cases will certainly take longer
time to be finalized and verdicts passed.[vi]

·       
Plethora
of Cases from the effect of the pandemic

The Covid-19 pandemic is
generally noted to have negative effect on all spheres of life and the court
would expect to witness a massive spring forth of cases ranging from force
majeure clauses in contracts, employment relations, inability to execute
contracts due to the lockdown, lease and tenancy disputes owing  to inability to pay rent, approvals of mergers
and acquisition owing to inability to meet up with FCCPC[vii]
thresholds by corporate bodies, declaration of solvency, winding up
proceedings, and cases of gender violence and assault during the lockdown. 

·       
Suspension of large gathering

One of the many challenging effects of
the Covid-19 pandemic on the Nigerian Bar and Bench is the continuous
restriction on large gathering and this will inevitable reduce the number of
persons in court rooms if the social distancing preventive measure is observed,
the Annual General Conference  of the
Nigerian Bar Association may not hold owing to the expected number of attendees
if Nation is still unable to defeat the pandemic before August 2020, and  essential National Judicial Council meetings
where sensitive issues with regards to the governance of the Judiciary are
discussed may also not be held as expected.

·       
Technological Deficiencies

The former chief Justice of Nigeria
(CJN) Walter Samuel Onnoghen during the previous 2017/2018 legal year of the
Supreme Court reiterated the need to ensure progressive upgrade of the
judiciary especially in areas of administration, practice directions,
independence of the judiciary and contributing significantly to the fight
against corruption. He added that

“The
Rules of practice and procedure should make provision for concessionaires to
handle the service of court processes and documents. Also, the Rules of
Practice and procedure should provide for e-filing to be done either by courts
or by external management service providers, there is a need for regular updates of courts’ websites, and there must
be computerized records in each court.”

The former CJN said entries must also
be made and posted on the website of the judiciary, where information on the
type of cases, progress made, judgments etc., can be accessed anywhere in
Nigeria, weekly, monthly or quarterly.

It is
unfortunate that this astute recommendation has still not been completely
implemented and the judiciary is continually faced with the challenge of low
Input of Computer Technology.

Ø SOLUTION

ü
In mitigating challenge of numerous
backlog of cases, it is my humbly proposition that more judicial officers
should be appointed for speedy dispensation of justice, willful delay tactics
and unethical practices by counsel  to
parties to  prolong cases and make such
cases drag through ages should be discouraged. Furthermore, there should be
statutory time for every case before the court according to its peculiarity.

ü
Heads of superior courts should review the current rules of
courts and practice directions in order to accommodate speedy administration of
justice and further enlarge the scope of the fast track procedure.

In the case of Chief John Oyegun v.
Chief Francis A. Nzeribe[viii],
the Supreme Court of Nigeria held
that the heads of every cadre of superior court shall have the power to make
Rules of that Court. It is trite law that the power to make Rules of Court at
the Supreme court, Court of Appeal, and at High Court of various states and the
FCT are vested in the Chief Justice of Nigeria, President of the Court of
Appeal and the Chief Judge of the States and FCT respectively.. The relevant
sections of the 1999 Constitution of the federal republic of Nigeria are
Sections 236, 248 and 274.

ü
Provisions for virtual
conferences, webinars,  frontloading of
evidence electronically, and electronic trials should be made in the Rules of
Courts, practice directions, Nigerian Bar Association guidelines and other
procedural laws.[ix]

With e-justice and e-meetings, case
management will be automated, forms that simplify and streamline court
proceedings will be accessible to users online, and payment of fees made
through dedicated websites to reduce corruption.

The Lagos state Judiciary made astute
attempt in line with the aforementioned recommendation however, I found some of
the provisions in the guideline issued by My Lord the Hon Chief Judge of Lagos
not to attain fundamental standards for the following reasons[x]

(1) The
preamble states the scope of cases to which the Practice Directions apply and
these includes cases which are urgent or time bound. The scope of the guideline
should be extended to all cases as we do not know when will pandemic will be
conquered and an attempt to leave out other cases except for urgent and time
bound cases will have far reaching effect on the Nigerian Judicial System.

(2) The
guideline made no provision in situations where electronically filed processes
fail to be delivered due to network error or where it was erroneously sent to a
wrong channel or platform.

(3) The
guideline in paragraph 6 and 7 made provision for electronic filing and no
provision is made for electronic signature where a person is unable to do same
physically.

(4) The
guideline made no provision for the attendance of public in proceedings before
the court in line section 36 (3) (4) of the constitution of the Federal
Republic of Nigeria.

It must be noted that there is no legal
or statutory framework for electronic trials yet and both the legislature and
Judiciary are expected  to concordly work
towards the enactment of legislation to address the aforesaid in order to avoid
multiple appeals cases before the appellate courts.

Courts and NBA branches should also
ensure compliance with Nigeria Centre for Disease Control (NCDC) measures for
prevention and control of the Covid-19 pandemic by observing physical
distancing in court rooms and in NBA National/branch meetings, provide hand
sanitizers in all court rooms and compulsory use of the face mask.

ü
It is applaudable that the Supreme
Court is moving towards complete utilization of information technology; however
there is need for all law courts and Judicial Officers in Nigeria to be ICT
compliant, provision of consistent power supply and employment of the services
of more shrewd ICT experts to assist the Judiciary and members of the bar is
also necessary.  

Information and
Communication Technology (ICT) will enhance the justice system by ensuring that
information is digitally received, controlled and passed on adequately. With
this measures put in place Processes filed in court will be finalized, ready on
demand and transfer of data and information will not be desegregated. It is
however further advised that measures must be accompanied by enhanced capacity
of personnel and investments in cyber security.

CONCLUSION

The goal of every purpose driven
society is progress which allows for unrestrained growth, compliance
with rule of law and legal security for individuals, and even
development of its judicial system. The Covid-19 Pandemic is a threat to human
existence and particularly on the Nigerian Justice system at large and proactive
steps in mitigating its effect on both the Bench and the Bar highly required. As
patriotic citizens and ministers in the temple of Justice we are burdened with
the responsibility of ensuring compliance with the Rule of Law.

References