As the National Industrial Court of Nigeria (NICN) released its Practice Directions and Guidelines for Court Sitting, 2020, which came into operation in the 18th day of May 2020, the court was clear in its explanatory note that it was to be “adopted in remote and physical sittings, recognizing the urgent need for the Court to put in place measures to guarantee continued access to justice and expeditious disposal of cases while minimizing the risk of transmission of Coronavirus (COVID-19).”
However, as lawyers in Nigeria continue to ruminate over the guidelines, a Kano-based legal practitioner, Usman Umar Fari, has advised that open-mindedness is required to embrace changes that come with changing situations.
He said legal fetishism and strict black letter approach to the interpretation of statutes is no longer the norm, especially as the fast evolving world requires corresponding fast thinking, highly intelligent and analytical-minded jurists to match laws with reality.
According to him, NICN’s practice direction “is a substantial adaptation of the NJC’s guidelines for courts’ sittings during the COVID-19 period.”
He said “some of the differences NICN and the Federal High Court (FHC) Practice Direction was that the NICN does not require consent of counsel before a matter is placed under the virtual proceedings cause list, and I think this is a great improvement.
“Secondly, leave of court is not needed for electronic service of court processes to be effected.
“Thirdly, each NBA branch is required to provide the court with electronic addresses of all lawyers within its domain, and I think this is also a great improvement, as it would make it easy for the court to reach out to lawyers that are already in its database.
Fari explained that there are two ways to view the novel virtual proceedings vis-à-vis Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
“That section mandated judges to conduct proceedings in open court so that everyone may have access to the proceedings. The question now is, can we say that all people may have access to the court in virtual proceedings conducted online?
“Looked at from one perspective, one can say not all people have can have access to virtual proceeding because one must have a cause, access to data and power. This is a restriction. Again, if you are not computer savvy, or you do not have a Smartphone, you are restricted, thereby somehow defeating the intendment of Section 36(1) of the constitution, but in the normal court, everyone can come in from anywhere anytime.
“On the other hand, if we look at it more critically, virtual proceedings can be said to be more open, because I doubt if there a courtroom in the whole world where 500 to 1000 can sit to access a proceeding. In Nigeria, even the Supreme Court cannot take more than 200 people at a time.
“But in a virtual proceeding, more than 1000 can access the proceeding from anywhere in the world. It is also capable of making access to justice less costly for litigants who may not need to bother about transportation, accommodation, feeding and other logistics for their lawyers who had to travel far for some cases either at courts of first instance, Court of Appeal of the Supreme Court. A litigant would be looking for about N100, 000 for logistics, apart from the inevitable professional fees. But in the case of virtual proceeding, all that is needed would be about N2000 or at most N5000 for data.
“To my mind, the Supreme Court would have to adopt a different interpretation mechanism from the one it took in Edibo v State in such a way that the intendment of the constitution could be better achieved, especially as the world is fast changing and unforeseen circumstances keep happening”’ he said.
He added that law is meant to serve the interest of the public and it should be interpreted to achieve that purpose.