Understanding The Relationship Between The Nigerian Legal Practice And Modern Technology: A Practical Approach To Modern-Day Legal Practice.

By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

Technology has reformed the manner in which activities are conducted in general. Majority if not all industries have been impacted by its effect. Candidly, the legal profession is not left out. The legal profession is known for its conservative and traditional ideologies which are widely believed by many to be preserved, as this would ensure that the sanctity of the profession is maintained. However, with the aid of technology, and its advancement a strain may have been placed on the conservative ideology of the legal profession.

INTRODUCTION

Technology has reformed the manner in which activities are conducted in general. The majority, if not all industries have been impacted by its effect. Candidly, the legal profession is not left out. The legal profession is known for its conservative and traditional ideologies which are widely believed by many to be preserved, as this would ensure that the sanctity of the profession is maintained. However, with the aid of technology and its advancement, a strain may have been placed on the conservative ideology of the legal profession.

Technology including information and Communication Technology (ICT) now plays a quintessential role in legal practice as it is becoming increasingly clear, that technology is a prerequisite for effective and efficient legal practice in Nigeria. This paper examines the important role played by technology in 21st-century legal practice, with emphasis on the development and application of technology in legal practice, its potential, the challenges faced, and recommendations to enable the legal profession to overcome these challenges.

One of the predominant features of the law is that it is dynamic, being that, for it to be functional, it must adapt to the changes or developments that occur in the society.

Apparently, in Nigeria changes in the law have been more sluggish than progressive especially in the adoption of Information and Communications Technology into our legal system. Presently, it is a well-established fact that the changes brought about by the use of technology, have brought some ease to legal research and practice. Take, for instance, the ability to access research materials online inclusive of both statutory and judicial authorities.

The need for the readiness and transformation of the legal industry to further implement the use of technology in legal practice, cannot be overemphasized, bearing in mind that Court proceedings are conducted faster, where the Judge employs a Stenographer skilled in the use of computer and recording, compared to where the Judge resorts to writing.

This article addresses the relationship between technology and Legal practice. To that end, Articles, magazines and textbooks germane to this work will be used. Heavy reliance will also be placed on materials accessed online.

WHY SHOULD TECHNOLOGY BE IMPLEMENTED IN LEGAL PRACTICE?

In legal practice, the application of technology cannot be overemphasized. J.E Owoeye in a publication[1] identified five key areas of IT relevance to lawyers. The main points are summarized below;

• Internet access to judicial decisions; with basic IT facilities like a personal computer, dial-up or wireless connectivity. A lawyer can now access judicial decisions of the Supreme Court of Nigeria, and all the House of Lord Judgments. The same applies to the judgments of many U.S. Courts. Online legal databases like Lexis/Nexis and Westlaw are already a practical experience

of legal professionals in developed countries.

• Electronic Communication: Digital technology provides the platform for lawyers to transmit and receive messages from clients, colleagues, and the court system. Gain access to the internal know-how of the institutional memory of a law firm and provide access to information on specific subject matters.
• Documentation is a cardinal aspect of the legal institution’s responsibilities. The legal process is undoubtedly documentation-intensive. Whether in drafting agreements for clients, or legislative drafting or litigations, preparing writs, or even judges writing their judgments. IT system allows a lawyer to work on many documents simultaneously while at the same time downloading materials from the internet. He can copy and paste one document to another or from one section of a document to another.
• Litigation support service. Information technology is relevant to the lawyers’ management and control of the diverse documents which they have to master to advance and prepare their clients’ cases. It relates to the efficient use of IT systems for the efficient storage and speedy retrieval of such documentation.
• ICT is also relevant in the area of basic text retrieval, use of CD-ROM systems, and quicker and more qualitative service to clients and cooperation between counsel, clients, Courts, and law investigation and enforcement institutions.

THE INTEGRATION OF TECHNOLOGY IN THE ADMINISTRATION OF THE CRIMINAL JUSTICE SYSTEM:

In Nigeria, the criminal procedure is modelled on the common law practice (See GDADAMOSI v. THE STATE (1992) LPELR- 1313 (S.C), until the enactment of the Administration of Criminal Justice Act (ACJA) in 2015, the criminal procedure adopted, in the country adhered to the Criminal Procedure Code Act (as applicable in the north) and the Criminal Procedure Act (as applicable in the south), notwithstanding that each state had the legislative right to enact criminal laws applicable to the state.

Prior to the advent of ACJA when the police arrested a suspect, they would conduct a preliminary investigation to determine amongst other things, the issue of jurisdiction.

The Director of Public Prosecutions in the Attorney General’s office was responsible for the consideration of matters and further provided counsel as to whether a charge should be filed, pursuant to the provisions of sections 174 &211 (as applicable) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

However, section 15 of ACJA 2015 provides a connection between the law enforcement and the Court, making it mandatory for the police upon the arrest of a suspect, to obtain the suspect’s record amongst which are the fingerprints and photograph.

Olubokola olugata in a publication[2] highlighted the following key areas in which technology aids the Criminal Justice system in Nigeria:

1. Database Accessible to the AG (prosecution), Magistrate/Judge, Prison and Police:The ACJA requires every police station to keep a record of all suspects, collate the record from time to time, and forward it to the AG, the Chief Magistrate (of each magistracy) and Chief Judge (of the state) the purview of its jurisdictional operations. The purpose of the record is to afford the Court oversight by allowing them to monitor the pre-trial detention population, while concurrently enforcing compliance with the 48-hour arraignment requirement.
2.  E-filing of the Charge/Information in Court: A criminal action commences with its filing in the appropriate Court jurisdiction, which includes the charge/information sheet and proof of evidence. The information sheet contains the relevant offences alleged to have been committed by the suspect. Current practice is to file the paper copy of these documents in court, but it is recommended in light of the availability of applicable technologies that the CJA would fare better by adopting an electronic format (e-filing). To effect this, the Court would require a dedicated and functional website from which various stakeholders including the prosecution, judge or magistrate, defence counsel, members of the public, and the media could gain access to the extent permitted by law. Once the charge/information has been filed, the prosecution would be responsible for carrying out the case assignment, as well as the subsequent requisite processes on the dedicated site.

• E-service on defendant processing: Pursuant to section 15 of the ACJA, the police record should include the suspect’s e-mail, phone number, and mailing address. The information should be verified by the police and included in the case file submitted to the DPP. Once a case is assigned to a Judge or Magistrate, the Court should serve the defendant through each of the contacts. E-services can prevent delay—be it purposeful or inadvertent—and enables the Court to confirm receipt, an integral aspect of the exercise of its jurisdiction.[3]

A few of the challenges faced by the implementation of technology in the Nigerian Criminal Justice system and recommendations are highlighted as follows:

CHALLENGES

1. Inconsistent manual database of suspects.
2. Costs involved in the physical visits to the police and prison detention facilities by the Magistrate or Judge.

• Poorly evaluated evidence.

TECHNOLOGY AS APPLIED IN LEGAL RESEARCH

It is no news that legal practice and education are generally based on lots of books and materials which could be in form of laws, judicial decisions, treatises, agreements and letters. Basically, books and papers were all in all for lawyers. To suggest to lawyers in the pre-computer age that things could be otherwise would have been absurd at the time.

Taking a peep into other jurisdictions, in the United States, the possibility of computers assisting in legal education and research was noted since the 1960s, even though it was not until the 1980s that it began to have a major impact[4].

In Nigeria, we have at our disposal electronic law reports which are quicker and easier to access. Examples are Legalpaedia and Law pavilion law reports. The presence of these research mediums aid a better appreciation of the judicial interpretation of the law and better application of case law to scenarios.

Going further, there are other internet resources, which broaden the knowledge of a legal practitioner in practice examples are google, blog posts, articles available on the internet etc.

This does not however go without its challenges. One of such challenge is that although technology is growing at an exponential rate, technology, as it relates to legal practice, is slow. This is due to the fact that a legal practitioner has an obligation to act professionally toward their client to ensure they get the best services. Hence, most lawyers stick to what they know, and are opposed to taking the risks involved in the provision of legal services with the aid of Artificial Intelligence[5].

Increasingly, there are tasks which were previously done exclusively by lawyers which are now being done by a machine. One of such is e-discovery which uses intelligent algorithms to find information based on the keywords and concepts agreed upon by the litigating parties.

prof. Yemi Osinbajo at the 2021 Annual Law Week of the Nigerian Bar Association (NBA) Lagos Branch, themed “Disruption, Innovation and The Bar.”[6]  Had the following to say in that regard:

“AI is commonly used to perform tasks such as legal research and due diligence, document and contract review, and the prediction of legal outcomes – these are tasks that would have been performed by lawyers.

 “With the continuing progress in technology, it is only a matter of time before the time capsule catches up with us in Nigeria as digitalisation has already disrupted other industries, it is possible to predict that AI will go further and disrupt the business model of the legal industry.

“For example, the AI legal service called ROSS is an AI system that can research and offer legal opinions about questions that may be posed by lawyers. 

“And ROSS is then able to provide an answer; a properly considered legal opinion, taking into account the case laws and statutory authority in order to be able to come to that conclusion… So, providing predictive legal opinion is no longer the exclusive domain of lawyers, and as the years go by, it will become even more so.”

RECOMMENDATIONS/CONCLUSION

In light of the challenges faced in the Nigerian Judicial System, the following should be adopted in ensuring a more properly functioning system.

1. DEVELOPMENT OF DATABASE: The database of suspects could be developed, and it could be uploaded on a website accessible to the Court officers. This provides them with real-time data with which they might schedule online and in-person visits to prison or police institutions.
2. VIDEO CONFERENCING AND DATA TECHNOLOGY: The capacity of the Magistrate or Judge to visit police and prison detention facilities, enable Court officials to verify compliance with the 48-hour constitutional provision. It would be considerably cheaper and more efficient to conduct the oversight function through video-conferencing. Along a similar vein, bail matters could also be heard by way of a video platform. Video and audio-conferencing facilities are easily accessible and relatively inexpensive once the technological infrastructure is in place. A variety of carriers such as Skype, FaceTime, Zoom, and WhatsApp are but a few of the conferencing options that can be explored. Stakeholders should be equipped with the appropriate facilities in order to streamline these processes. To ensure effective management and avoid potential misuse of the technology, there should be a dedicated room in the detention facility reserved for the suspect to meet with his counsel and Investigating Police Officer.

In addition, image recognition biometric technologies currently in development could also have useful applications. With the assistance of counsel, the suspect would present their application to the Magistrate or Judge. In those instances, where the offence is not a bailable charge, the Court can remand the suspect. Law enforcement would also have the opportunity to respond and offer the Court an update on the investigation.

• VIDEO RECORDING OF PROCEEDINGS TO AID PROPER EVALUATION OF EVIDENCE: Questions raised in the instant case if and when the matter is appealed will require a review of the grounds for which decisions were based, which can only be accurately assessed if the record is provided. Having said that, the proceedings should be recorded in any case as a matter of best practice. The facilities in which the exchanges occur should be equipped with CCTV. This process could also allow the record to be reconciled to authenticate bail proceedings and guard against security breaches such as hacking or voice overlays.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of Technology, Media and Telecommunications Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Patrick Emmanuel.

Patrick is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in issues in family relationships such as marriage and divorce.

He can be reached at patrick.emmanuel@omaplex.com.ng.

[1] Library philosophy and practice ISSN 1522 – 0222

[2] International Journal for Court Administration (utilising technology in making the Nigerian Administration of      Criminal Justice Act effective in criminal trials.

[3] Idemudia v. State supra Per Katsina- Alu, JSC. (Pp. 31–32, paras. D-B).

[4] Michael A. Geist, ‘Where Can You Go Today? : The Computerization of Legal Education From Workbooks to the

Web’ (1997) Vol 1, Harvard Journal of Law and Technology 141, 143. See generally Paul F. Teich, ‘How Effective

is Computer-Assisted Instruction? An Evaluation for Legal Educators’ 41 J. Legal Educ. 489 (1991).

[5]https://www.google.com/search?q=merriam+webster+definitio+of+artificial+intelligence&oq=merriam+webster+definitio+of+artificial+intelligence&aqs=chrome..69i57j0i22i30.19431j0j7&sourceid=chrome&ie=UTF-8

[6] https://von.gov.ng/2021/07/26/vp-osinbajo-tasks-judiciary-on-use-of-technology/