INTRODUCTION

The use of online proceeding is an admirable aspiration for Nigerian legally system to consider. Doing so will put the nation on the same page with advanced democracies of the world in terms of quick and expeditious dispensation of justice. However, the use of virtual proceedings in Nigeria is an expensive bargain to strike a deal with in the administration of justice, despite the  COVID-19 pandemic. This is due to the fact that virtual proceedings conflicts with the current jurisprudential reality in Nigeria. Also, there are some practical aspects of Nigeria’s legal proceedings that may not be feasible via virtual proceedings. Therefore, until there are substantial changes in our legal system, virtual proceedings will still remain an adventure in quest for the ideal.

The scope of this writing will first examine the contextual meaning of the phrase “virtual proceeding.” Secondly, the work will examine the sources of jurisdiction under Nigeria legal system to see whether “virtual proceedings” is a jurisdictional concept that can be accommodated within Nigerian judicial system. In the third arm of this work, the writer will also examine instances where virtual proceedings may conflict with some fundamental concepts of Nigeria constitution. In the fourth arm of this work, this work will examine instances of practical realities that will be difficult to conduct via virtual proceedings. The work will be concluded in the fifth part by recommending certain measures as a way forward to bolster the justifiable deployment of virtual proceedings in Nigeria. It is the hope of this writer that this work will be of great contribution to the advancement of knowledge in Nigeria’s jurisprudence.

DEFINITION OF TERMS

The advanced Oxford dictionary defines the word ‘virtual’ to mean “made to appear to exist by the use of computer soft-ware, for example in the internet.[1]” Similarly, the word ‘proceeding’ is defined as “in general, the form and manner of conducting juridicial business before a court or judicial officer; regular and orderly during progress in form of law; including all positive steps in action from its commencement to the execution of judgment.’’[2] Additionally, in the U.S case of Statter V United States,[3] the court held that, “the word (proceedings) may be used to describe the entire course of an action at law or suit from issuance of writ or filling of the Bill until the entry of the final judgment.”

From the above expositions the word proceeding simply means conduct of a legal process from filling of the suit, to the hearing to the delivery of judgments and up to the enforcement of same. Therefore, the phrase virtual  proceedings could be described to mean the use of computer and internet to conduct judicial business from the filling of the case, mention and further mention, applications, hearing, adoption of final addresses, and judgment and enforcement of same. In order words, it simply means the conduct of trial advocacy and some probate matters using computer and the internet facilities. It is the use of information communication technology in conducting judicial businesses.

JURISDICTIONAL COMPETENCE OF ‘VIRTUAL COURTS’

Jurisdiction is usually conferred on the court either by the constitution, the statutes, the inherent power of the court or the rules of court. These are termed as the main sources of jurisdiction in Nigeria.[4] The Constitution of the Federal Republic of Nigeria, 1999 (2010 as amended) (subsequently refer to as the Constitution), confers jurisdictions on the Supreme Court, Court of Appeal, Federal High Court, National Industrial Court, High Court of the FCT(Abuja) and the High Court of the various States of the Federation and provides their jurisdiction and general framework.[5]

The jurisdiction conferred on these courts by the constitution is further consolidated by the enactments of various statutes that govern these courts.[6] It is the statutes enacted either by Federal or States’ legislatures that can confer additional jurisdictions on the courts. It is from this positions that we have Statutes like Federal High Court Act, National Industrial Court Act, High Court of the (FCT) Act, inter alia.

At this juncture, it is important to note that the implication of the jurisdiction conferred on the court by the Constitution and other Statutes is that it is firm and concrete. Thus, the parties cannot by agreement endow jurisdictions on courts; neither can the court exercised jurisdiction outside the statutory or constitutional circumferences ascribed to it by the constitution. This position is captured in the case of DANGANA & ANOR V USMAN & ORS(2012) LPELR-7827(SC) where it was held that:

That the unique aspect of jurisdiction is that Courts are set up by the Constitution, Decrees, Laws, Act and Edicts. They cloak the Courts with the powers and their jurisdictions for adjudication. If the Constitution, Decrees, Laws and Edicts do not grant jurisdiction to a Court or tribunal, the Court and the parties cannot by agreement endow itself with jurisdiction. The jurisdiction of the court is confined, is limited and circumscribed to the statutes creating it.

 

Another source of jurisdiction is the inherent power of court. This source of jurisdiction derived its power from Section 6 (6) (a) of the Constitution which provides that:

(6) The judicial powers vested in accordance with the foregoing provisions of this section-

(a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law 

The import of the above provision is that courts are empowered by the constitution to regulate their proceedings, preserve its integrity and dignity, to enforce their rule of practice, thwart abuse of court process and to grants incidental or consequential reliefs not sought.[7]

Having examined the above sources of jurisdiction, a pertinent question to ask are these: Is there anywhere in the above sources of jurisdiction that permits for ‘virtual jurisdiction’?  The answer to this question is in the negative. Furthermore, are there any Rules of Courts or its inherent power that permits the court to conduct virtual proceedings? The answer to this is in the positive. This is because the courts are empowered to rely on their inherent jurisdiction under Section 6 (6) (a) of the Constitution. Thus, regulating courts’ proceedings is one of the inherent powers of court.[8]

However, it is important to note that the inherent power of the Court to conduct virtual proceedings must not conflict with the provisions of the constitution and statutes that creates it. This is because where the inherent powers of the courts during virtual proceedings conflicts with the basic provision of the Constitution, the whole proceedings will be nullified. This stems from the fact that inherent jurisdiction is subject to constitutional and statutory provision.[9]

Flowing from the above paragraph there are two (2) pertinent questions that are worth interrogating. Firstly, in what ways can virtual proceedings conflict with the constitutional provisions of our laws? Are there any practical aspects of advocacy that will not be feasible via virtual proceedings? It is the response to these questions that will lead us to the next part of this work.

CONSTITUTIONAL REQUIREMENTS THAT ARE IN CONFLICT WITH VIRTUAL PROCEEDINGS

The first constitutional issue associated with the conduct of virtual proceeding is that it violates public access to open court. This has the tendency of affecting the transparency of how the courts arrived at the justice of a case. That is why Section 36(3) of the Constitution provides that:

(3) that the proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section(including the announcement of the decisions or the announcements of the decisions of the court or tribunal) shall be held in open public. 

The import of the above constitutional provision is that: (a) the public must have access to all stages of court’s proceedings and (b) the decisions of the court must be delivered in the open public place. On issue of public access to court the above section states to the effect that the public must have access to any trial conducted by the court. However, in the conduct of virtual proceedings, it is only the parties, their counsel and the judges that may attend the court session. This is no doubt an affront to the provision of the constitution. Also, virtual proceedings may have challenges with matters like, Election Petition or high-profile cases that attract a lot of media attention; virtual proceedings’ will definitely deny the public access to court. This is because not many people are in resourceful capacity to afford computer gadgets and internet facilities in order to partake in the streaming of the virtual proceeding.

Additionally, since virtual proceedings deal with the use of internet and telecommunication facilities, there is the need for compliance with basic principles governing these spheres of law. The basic principles of telecommunication are availability, accessibility and affordability.[10] Where the public cannot have access to the court either by the default of the service providers or their unaffordability, it will ultimately affect the availability of virtual proceedings as stipulated by the constitution. In Nigeria, is no doubt that accessibility and affordability are major challenges to online  and telecommunication transactions due to slow space of network rollout, sub-optimal quality of service delivery, weak infrastructure, poor funding, power failure, etc.[11] Based on these challenges it will be difficult for virtual proceedings to be made available to the public as stipulated by the Constitution.

Furthermore, it is canonical in Nigeria’s jurisprudence that the decision of every court must be delivered in the open court. This provision of the Constitution requires mandatory compliance. Therefore, in virtual proceedings, the location of the Judge also matters. Is he located in this chamber as the virtual courts? Or is he located in his house? Or is he located in the open court? Where a judge is located in his chamber to conduct a proceeding and deliver a judgment via Skype, the validity of the said proceeding and judgment will be contested. This is because the Supreme Court held in the case of Edibo V State,[12] that Judges’ Chamber is ‘certainly and surely not a “public place”, contemplated within the provision of section 36 (3) for conduct of judicial proceedings. Nine years after the decision in Edibo V State, the Supreme Court consolidated on this position in the case of Alimi V Kosebinu.[13] In this case, the court is confronted with the following issues:

  • Whether Judges Chambers can be classified a regular Courtroom?
  • Whether the Proceedings conducted in the chamber of the judge is valid?

The above issues were resolved in the negative. On the first issue the Supreme Court held[14] that a Judge’s Chamber cannot be classified as a regular courtroom. This is because the members of the public cannot have the right to go in and out of the Chamber without the permission or invitation of the judge.

On the second limb of the above issue, the Supreme Court held[15] that where a part of courts’ proceedings that ought to be in public but was conducted in the confines of Judge’s Chambers; such proceedings is done in secrecy. Therefore, it is a settled position of the law that proceedings conducted in Judge’s Chambers are trials by secrecy under Nigeria’s law.

In virtual proceedings, there is high temptation for judges to sit in their Chambers and deliver a decision on a matter. With this incidental arrangement of court, His Lordship may be tempted to deliver his ruling or judgment in the virtual Chamber. Doing so will be fatal to the case at hand.

Therefore, based on the rendition of the case of Alimi Supra, where a judge via a Skype  located at is home or Chambers, delivers a judgment, that judgments will be nullified because the decision was delivered in contravention of Section 36 (3) of the Constitution.

PRACTICAL ASPECTS OF ADVOCACY THAT WILL NOT BE FEASIBLE DURING VIRTUAL PROCEEDDINGS

The first aspect that will be challenging during virtual proceedings is inspection of documents. Can the court rely on the documents shown to it some mile away in virtual proceedings? Can a judge rely on the distant reflections of that document brought closer to the court by the computer screen? How can courts resolve the credibility and authenticity of documents in virtual proceedings?

Again, the process of cross- examination is a fundamental aspect of trial advocacy. It is so relevant that it is included as one of the components of fair hearing. A further question is how can one tender documents and avail it to the others parties for cross-examination in virtual proceedings? Again, how can virtual proceedings determine the credibility of electronically generated evidence when objected? This is pertinent considering the fact that both parties are far apart from each other.

Also, the law requires that all online gadgets like computers, websites, Skype, etc must be registered and licensed with the Nigeria Communication Commission (Subsequently refer to as NCC).[16] In this context, the court may be in contractual relationship with the NCC and other internet service providers. The further question is, how can the court ensure impartiality or and avoid conflict of interest where one of the regulatory bodies that regulate the Skype is a party before a ‘virtual court’? For example, if one of the parties is against NCC or Registered Website Operator that is service provider for judiciary how can the court resolve the issue of impartiality?

Moreover, judicial officers in Nigeria are not proficient on internet technology. Consequently, the conduct of virtual proceedings could be very strange and difficult. Besides, there is the high possibility of hackers interrupting the proceedings or hijacking the process, especially, where the hijackers adopt ‘the session hijacking technique’. [17]Cyber attack may be launched by persons who are imminent to lose a case, especially political cases. Hijacking of virtual proceedings and attack on Virtual Machine (VM) is a common global challenge even with advanced democracies.[18] For example, the use of VTP (Virus Transfer Protocol) in cyber attack could be deployed to disrupt or control proceedings.[19] The fatal effects of such disruption may affect communication and ultimately issues of fair hearing may be raised- where there is disruption or attacks that affect virtual proceedings.

In the realm of criminal jurisprudence, physical presence of the accused is essential throughout the trial in court[20] as well as his surety. This prompts a question as to which vicinity will the accused show his appearance? Would he be at his lawyer’s ‘virtual office’ or will he be with the Judge in his Chamber or court?

Arraignment is another area that will pose a major challenge during virtual proceedings, especially where there are many suspects before the courts. This question is pertinent considering the fact that most of the virtual screens can only cover one person at a glance.  While it will be possible for the defendant person to take their arraignment one after the other using the same virtual screen, but will the court or prisons able to provide about 20 separate virtual screens to enable the accused to be present throughout the trial? Where there are no such facilities and it affects the virtual presence of the accused throughout the trial, it will ultimately affect the legal requirements that accused must be present before the court throughout his trial.[21]

Announcing appearance before the court in a well dressed manner is an aged long tradition of legal profession. In virtual proceedings, it is usually the face of the lawyer that is visible. This is because the virtual screen can only cover the facial view of the parties and their counsel. Thus, wigs, bip/colourrete and the gown are the only conspicuous aspect of dress that may be visible. Therefore, the judge may not know whether, the counsel appearing before him is wearing bathroom slippers or sandals.

Lastly, can the law take judicial notice of the course of proceedings of virtual courts? This is because Section 122(2) (m) of Evidence Act, 2011, provides that the course of proceeding and all rule of practice in any court established by or under the constitution. It is the position of this writer, that the court will not take judicial notice of the course of proceedings of virtual courts because it is not created by the Constitution for it to be taken judicial notice of. It is the position of this writer that it will be difficult for courts to do conduct virtual proceedings based on the current constitution without offending the said constitution.

CONCLUSION

While the use of online or virtual proceeding is a good prospect there is need to restructure the legal system, make necessary constitutional amendment, make for a reliable, affordable, accessible technology to accommodate this new trend and also train the actors in the theater of Nigeria’s judiciary. Where there is no proper enlightenment and compliance with the fundamental laws of the land, virtual proceedings will be an adventure with less judicial fruition. Therefore, it is the proposition of this writer that the following measures should be adopted for the purpose of effective and viable virtual proceedings.

In the first place, there should be proper designation of certain stages of trials that can be conducted via virtual proceedings and those that require physical trial in the open court. Filling and services of court processes, pretrial conferences, multi-door court sessions and applications can be done via virtual proceedings. However, hearing of cases involving examination and cross-examination, conducting arbitration sessions, objections to documents, inspections of documents, rulings and judgments should be done squarely in the open courts.

Another thing to note is that there should be a total overhaul of the facilities of Nigeria’s judiciary. Courts should have robust Information Communication Technology (ICT) departments that will facilitate virtual proceedings. This will help the courts to avoid conflicts of interest with other Network providers. The best way to achieve that is to grant the judiciary institutional independence from other organs of government both at the federal and state level as it befits true federalism.

Also, it is important to maintain that there should be constant training and re-training of judicial staffs. In the same vein, lawyers should be deliberate to involve personal training on the use of ICT in legal practice. The Nigeria Bar association at the Branch Levels should be deliberate in training and retraining of lawyers in the use of Information Communication Technology (ICT) in legal practice. The gadgets could be capital intensive and therefore it should be made available by the judiciary to its staff. The Nigerian Bar Association should be deliberate by providing ICT training for its members during Branches’ Law weeks. The Nigeria Bar Association should also strive and get the gadgets at affordable rate for lawyers- since in era of virtual proceedings the lawyer’s office is his labtop.

Finally, online platforms like Skype, Zoom and the like should extend the capacity of their facility to show more than one person per screen or as many as are part of the proceedings, without violating social distance ethics. Recently, WhatsApp has increase the number/ coverage of their customers from 2 to 8 persons per video call. [22] But the problem with Skype is that it has only limited number of persons that can be covered per call on a screen. Zoom has a little more participant of about forty. Therefore, the court needs to adopt a uniform online  platform as only those who have the application can participate on the platform.

[1] A.S Hornby, Oxford Advanced Learners’s, Eight Edn (Oxford University Press 2010)  P.1660

[2] Henry Campbell  Black, Definition of the Terms and Phrases of American and English Jurisprudence ,Ancient and Modern (St. West Publishing Co.,1971)  P.1368

[3] 66,F.zd.819,22       

[4]  Obande F.Ogbunniya, ”Understanding the Concepts of Jurisdiction in the Nigerian Legal System”(SnaapPressLtd,Enugu,2008)PP-25-26

[5] See  sections 230, 237, 249, 260, 270, 275, 278, 280 and 284 of the Constitution of the Federal Republic of Nigeria, 1999.

[6] Such legislations include the Supreme Court Act, Court of Appeal Act, ,Federal High Court Act,  National Industrial Court Act  and the High Court Laws of the various States of the Federation, among others.

[7] Obande F.Ogbunniya, ”Understanding the Concepts of Jurisdiction in the Nigerian Legal System” (SnaapPressLtd,Enugu,2008)PP-25-26.Also, in the case of Akilu VFawenhimi(2) (1989)(pt.16) part 102 @P.122, it was held that inherent jurisdiction of the court enables the court to fulfill itself and exercise its discretion in doing substantial justice in matters before it.

[8] Ibid. See also Leaders & Co. Ltd V Kusamotu (2004) 4 NWLR ( PT 864) 517 and I.B.W.A V Sasegbon (2007) 16 NWLR (PT. 1069) 195

[9] Obande F.Ogbunniya, Op Cit@P.28.See also,Anambra State Government &Anor V Maduekwe &Anor(2011) LPELR 3771 CA

[10] Section 101 of National Communications Act, 2003,  provides for the resonsibilty of  network  facilities provider  and  network service provider  to provide internet and other ancillary accees  to other network facilities provider, application  service provider or content application service provider. Thus, by using virtual proccedings the court is mandated to comply with the statutory obligation specified under this law, except the law provides otherwise.

[11] .   Ernest  Ndukwe, Telecoms Regulatory Environment; Legislation Regulation and Licensing @TELECOMS REGULATORY ENVIRONMENT –Judges Workshop 240105-NCC<accessed on May 1, 2020>

[12] LPELR-SC.284/2003

[13]

.(2016)17NWLR (1542)

[14](Supra)

[15](Supra)

[16] Sections 48, 49, 50, 51 and 52 of the Nigerian Communications Act,2003 provides for the registration  and licenses of  individual and class users of communication facilities.

[17].  In session hijacking , the attack interferes with the legitimate user’s on a protected Network. This may be achieved by Transport layer Hijacking where by the attacker disrupt the communication between a client and a server with the sole aim of affecting exchange of data. See.Study.com”Types of Session Hijacking:Advantages and Disadvantages@https://study.comacademy.lesson<acccessed on May 3,2020> In Nigeria ,such methods may be deployed to disrupt proceedings.

[18].  Pawel Sarbinowsky, Vaselios P.Kemerelis, et al,  “VTPin:VTable hijacking  protection for binaries” @VTPin! Proceedings of the 32nd Annual Conference on Computer  Security

[19] Ibid..

[20] Mohammed V State (2018) 5 NWLR Pt. 1613 PP 573-574 Paras-F-G

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