The Effect Of Covid-19 On Time Lapse Of Filing Processes In Court By Summer Okibe

COVID-19 is a global pandemic that affects the public health. The primary concern of the judiciary is to protect the life of its staff, the lawyers and the Judges.

The potential impact of COVID-19 keeps evolving rapidly and it is important to have in mind some effects that the courts in Nigeria would have to deal with during the lockdown with respect to processes that are limited by time.

Meaning of Statute of Limitation:

The Black Law Dictionary (6th edition) defines the term, “Statute of Limitation” as a statute prescribing limitations to the right of action on certain described causes of action or criminal prosecutions; that is, declaring that no suit shall be maintained on such causes of action, nor any criminal charge be made, unless brought within a specified period of time after the right accrued.

What qualifies as time sensitive and urgent?

They are those matters “where hardship or substantial financial consequences are likely to result from delay.” Such matters are;

1. Election Petition:

The Constitution of the Federal Republic of Nigeria which is the grand norm of the country provided in Section 285(5) that every election petition shall be filed within 21 days after the date of the declaration of result of the election. By  subsection (6)  of S. 285, the tribunal is bound to deliver its judgment in writing within 180 days from the date of the filing of the petition, while by subsection (7) of same section,  an appeal arising therefrom shall be concluded within 60 days of the delivery of the judgment of the tribunal or court of appeal.

The Supreme Court in JAMES v. INEC & ANOR held that election or election related matters are time bound and same applies to pre-election matters. 

Also, in OMISORE & ANOR v. AREGBESOLA & ORS (2015) LPELR-24803(SC), the Court held that any process filed out of time in respect to election matters is incompetent and liable to be struck out.

The Lagos State Government stated that only remand/bail applications of the following cases would be heard because they are time conscious in nature and they are;

1. Terrorism
2. Armed Robbery
3. Homicide
4. Non-bailable offences
5. Actions against public officers are 3months by virtue of section 2(a) Public Officers Protection Act.

The Chief Justice of Nigeria, Justice Tanko Muhammad on the 23^rd of March, 2020 directed the suspension of judicial activities in courts nationwide for two weeks as a result of the rising wave of COVID-19 in the country. On the 6^th of April, 2020 after the initial 14 days expired, the Chief Justice of Nigeria extended the closure of the courts indefinitely, except for matters that are urgent, essential or time bound in line with our extant laws.

In a circular passed by the Chief Judge of Lagos State made on the 30^th of March, 2020, all courts’ activities were suspended till further notice and the only exempted cases according the circular, are bail applications relating to terrorism, armed robbery, homicide and other non-bail able offences. Such applications were said to be held on Mondays, Wednesdays and Fridays from 10:00am to 1:00pm each day.

The President of FRN also on the 30^th of March, 2020 by the COVID-19 Regulations, 2020 made some regulations to curb the dangerous infectious disease and that court matters that are urgent, essential or time bound according to our extant laws, are also exempted in line with the Chief Justice of Nigeria’s circular dated the 23^rd March, 2020. Such matters would be handled as the Chief Justice of Nigeria may from time to time direct.

EFFECT of COVID-19 on Time Lapse of Filing Processes in Court

The nature of the lockdown order due to COVID-19 has resulted in an increased reliance on telecommunication and the internet, as business seek to continue operation and individuals need to communicate from home.

Without doubt, the closure of the judicial system in Nigeria has raised multiple concerns such as issues bordering on the administration of justice and the filing of processes in court. These concerns have been further goaded by the lockdown of some other states by the Federal Government of Nigeria. Almost all state governments have also issued stay-at-home orders to civil servants and private employees in their respective jurisdictions.

Each court in Nigeria has its rules of courts which stipulates the time for filing processes in respect of each matter and the penalties for failure to file the processes within time. The Rules of Courts also made provisions for situations when time would not run or would not be counted. For instance, time does not run for the purpose of filing pleadings during the long vacation of courts, unless otherwise directed by the Judge.

The Rules of Courts are made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and are sacrosanct and must be obeyed except where strict adherence to the rules would amount to injustice.

During the shutdown of courts and other institutions, there have been and are still impending rise in domestic violence cases, criminal cases and other sensitive matters. The question is how would the complainants get remedy during this lockdown? How would the Plaintiffs file its processes in court to avoid the matter being statute barred?

The effects of COVID-19 on the time lapse of filing processes in court have eaten deeply into the legal system and as such affects both the rights and obligations of the parties.

The Legal Status of the Lockdown of the Judiciary as a Result of COVID-19

Does the lockdown of the judiciary fall under public holidays in Nigeria?

Under the Schedule in the Public Holidays Act, the following days are to be kept as public holidays throughout Nigeria;

• New Year’s Day
• Good Friday
• Easter Monday
• Workers’ Day (1^st May)
• National Day (1^st October)
• Christmas Day
• Such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Id el Fitr
• Such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of Id el Kabir
• Such day as the Minister may declare to be a public holiday in celebration of the birthday of the Prophet Mohammed (Id el Maulud)

From the foregoing, there was no provision for the COVID-19 pandemic and any other pandemic to be regarded as a public holiday. By virtue of section 2 (1) of the Public Holidays Act, the President may by public notice appoint a special day to be kept as a public holiday either throughout Nigeria or in any part thereof, and any day so appointed shall be kept as a public holiday.

However, section 2 (3) of the Public Holidays Act stipulated that “public holiday” includes part of a day and any day declared as a work-free day. A layman can safely say that the lockdown is a public holiday because it gives room for work-free day but as legal luminary who understands the law, taking a closer look at Section 2 (1) of the Public Holidays Act, it is crystal clear that the President ought to have declared this lockdown as a public holiday vides a public notice.

Under Section 3 of the Public Holidays Act, the Minister for Internal Affairs may by public notice, when it appears to him in any special case that in any year it is inexpedient that a day appointed by Section 1 of the Act to be kept as a public holiday should be kept as a public holiday and may appoint such other day as he may think fit to be kept as a public holiday instead of such day, and thereupon the day appointed shall be submitted for the day in such year appointed by this Act.

Section 15 (3) of the Interpretation Act states that where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday. This section would have been in support of the lockdown/stay-at-home orders if the President adhered to the provisions of the Public Holidays Act.

Under Section 15 (5) of the same Act, “holiday” means a day which is Sunday or a public holiday?

This simply means that the lockdown order by the President is alien to the country and as such can’t be automatically termed “public holiday” without due procedure being followed in declaring a particular day or days a public holiday.

Generally, the court does not sit during weekends except it is expedient, in the interest of both parties and or for security of one of the parties. However, judges do not sit on public holidays, annual court vacation, Christmas vacation, Easter vacation and conference week.

More so, there was no provision for the court to be shut down as a result of the current pandemic which is to say that the court ought to be functioning until a public notice is passed by the President of the FRN declaring this period as public holidays.

Going further, the President of FRN is empowered by Section 305 (3) (e) and (f) of the Constitution to declare a state of emergency either of his own accord or at the request of a state Governor where there is an occurrence of imminent danger, the occurrence of any disaster or natural calamity affecting a community, or any public danger which constitutes a threat to the country.

In as much as the Constitution did not define what disaster or natural calamity means, it can be deduced from the current situation in the country that the COVID-19 pandemic is a very dangerous disease which is affecting the country and the world at large. A declaration of a state of emergency is allowed to abrogate temporarily the rights of the citizens as enshrined under Chapter 4 of the FRN in the interest of public safety, public morality or public health.

Pursuant to Section 305 (6) (c) of the Constitution stated that a Proclamation of state of emergency issued by the President shall cease to have effect after a period of six (6) months has elapsed since it has been in force. There is an exception under the same subsection, that provided the National Assembly may before the expiration of the period of six months aforesaid, extend the period for the Proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation.

The President of FRN did not declare a state of emergency in this regard and as such, the lockdown of the Judiciary, Federal, State and private sector is still without legal course.

RECOMMENDATIONS 

Technology has made everything easier for us and it would be in the interest of modernization for the judiciary to adapt to the current technology and development of things. A few recommendations are suggested for a paradigm shift for the judiciary to adjust to the current trend of technology as a result of the COVID-19.

• Declaration of Public Holidays: The President of the Federal Republic of Nigeria should declare by a public notice that during this COVID-19 pandemic and other futuristic pandemics, that there would be an automatic public holiday which would last until the end of the pandemic. By doing this, it would be in compliance with the Public Holidays Act and the Rules of Courts of different courts to the potential effect that the time for filing processes and statute of limitations do not count during public holidays.
• Proclamation of State of Emergency: The President can under the umbrella of the Constitution proclaim a state of emergency for six (6) months during this COVID-19 pandemic in the country and can be further extended by the National Assembly to another six (6) months if the pandemic continues. In such a situation, the time for filing processes in court would be halted till after the Proclamation is ceased.
• Suspension of Procedural Deadlines: All Heads of Courts should issue practice directions exempting the period of lockdown and subsequent unforeseen lockdowns from the computation of time of filing processes in court. This directive should encompass that all procedural deadlines in court, administrative or tax matters should be suspended until after the epidemic has been lifted. The Supreme Court of India has suspended limitation periods and has issued general guidelines on the use of video conferencing and permitted it to be used in different situations.
• Digital Court Office: The judiciary should also adapt with the change in technology. Digital court offices should be opened in every court in the Country to allow parties to digitally/electronically file their processes and proofs of service. Just like how we have the Bailiffs Office, Registry, Process department in each court, there should be a Digital Court Office to attend to electronic filings. By doing this, we are echoing that digital law practice is not an option but a necessity.

• Email Filing: Courts should temporarily accept filings over email to reduce the number of people at the court premises. Parties can make submissions in writing by email, other parties should be copied and it would be deemed as proper service. On receipt of submissions from all parties, the judge can give its ruling in respect of the application.
• Suspension of Filing Deadlines and Limitation Periods: In the interest of Justice, during the COVID-19 pandemic, all filing deadlines and limitation periods should be suspended till further notice except of course for urgent matters. The National Assembly

by virtue of Section 4 of the 1999 Constitution of FRN has the power to make such laws to suspend the Statute of Limitation on matters during the pandemic.

• Virtual Courts: For the urgent matters, the court should not be open to the public. The court should hear such matters remotely by video conferences and telephone conferences to help control the spread of COVID-19.

So far, the Federal Capital Territory (FCT) has activated mobile courts to try violators of the lockdown directives. The violators if found guilty will be fined and their vehicles impounded until after the lockdown.

The Lagos State Judiciary is set to issue a Practice Direction for the remote hearing of cases. The preliminary part of the draft shows that the COVID-19 pandemic has necessitated the use of Remote Hearing to ensure cases are heard and disposed of urgently where possible.

Sequel to that, the Lagos Chief Judge approved hearing of cases via zoom and skype and I must say that COVID-19 can be seen as an opportunity for technology to strive in our judiciary.

In the same vein, the Attorney General of the Federation stated that there is urgent need for a significant change to adjust the judicial process to make for recovery of lost grounds occasioned by the lockdown.

All these are applicable to try only defaulters of the lockdown and not present cases either filed in court or yet to be filed as stipulated by the rules of various courts.

The court is invited to embrace technology at any cost to ensure that the Judiciary still functions at all times especially during such pandemic.

The court can record the hearing on the remote communication programme available (e.g. BT MeetMe, Skype for Business, Zoom and in some cases, telephone call). In a Skype, Zoom or BT MeetMe, the judge(s) will then be invited in by the clerk or court registrar. The hearing will be recorded by the judge’s clerk, registrar or by the judge.

Kenya’s judiciary sent out notices on social media informing lawyers that pending court judgments would be delivered through electronic means such as via Email and video chat. Justice Hannah Okwengu has delivered 57 judgments and rulings of the Court of Appeal of Kenya via video link.

Also, in Italy, Qatar, Dubai, South Africa, UK, US and so many other countries hear, try and deliver judgments remotely.

There are three (3) “internet courts” in China which handles litigation procedures online from filing a case to issuing judgment documents.

By putting in place the recommendations suggested in this article, the Nigerian Judiciary would be in equality with other nations that have utilized and implemented technology in their judicial systems.

CONCLUSION

The rapid growth of COVID-19 would consistently affect the judiciary if necessary steps are not taken to ensure that matters are dispensed with through digital/electronic means. This pandemic should not halt the judiciary in its entirety, there’s room for remote hearing and filing of processes through the same technology.

Summer Okibe is an Associate at Greenfield Chambers and can be reached via s.okibe@greenfieldchambers.com.