Virtual Court Sittings – Investing in Technology
In July 2019, shortly before the annual vacation of courts in Nigeria, my firm received a brief from a distraught client. His case was that the Asset Management Corporation of Nigeria (AMCON) had frozen all his bank accounts and taken over his assets. His matter was urgent, and he was desperate. The matter was slated to come up in less than 48 hours. We commenced work immediately including applying for discharge of the freezing order. Although we left the office at 11 p.m. that day, the processes were not ready for filing until 01:50 p.m. the next day. We had to be at the Federal High Court, Lagos, before 2 p.m. for filing, and to ensure successful service to all the parties that day or before the hearing the next morning. Notwithstanding that it was raining cats and dogs at that time, I boarded OPay (a commercial Motor Cycle) from my office at Ikeja to Lagos mainland, passed through the third mainland bridge in a bid to get to the court on time. It was risky and I got drenched.
The point I am driving at is, the above risk would have been avoided if there was a chance of filing and serving those processes electronically. The good news is that all that is about to change forever due to advent of the novel Covid-19 pandemic.
One of the key lessons of the Covid-19 experience is that workers in the professional/non-technical service sector of the economy can also work from their various homes. Working from home is powered by technology. Technology is not an invention for the future; it is the tool for yesterday, today and tomorrow. The best time to deploy technology for an efficient, competitive and smart law practice in any law firm is already in the past. This is the age of smart practice. Law firms which are yet to integrate appropriate technology into their law practice are already lagging behind their counterparts – and it can only get worse. The courts are not left out as the coronavirus outbreak has also compelled Nigerian courts to introduce virtual court sitting.
It is therefore not surprising that on 4th May 2020, the Chief Judge of the High Court of Lagos State, Honourable Justice Kazeem O. Alogba, published a Practice Direction on Remote Hearing of cases during Covid-19 pandemic period. The Practice Direction is specifically geared towards applications and cases that are either time-bound or urgent, and this covers the adoption of written addresses, bail applications, fundamental human rights matters where the applicant is in custody and interlocutory applications pursuant to Section 6(6) & 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 87 (11) High Court Law of Lagos State 2015, Order 49 Rules 1,2, &3 High Court of Lagos State Civil Procedure rules 2019, Section 90 (2) Lagos State Magistrates’ Court Law 2015, and Section 354(1) Administration of Criminal Justice Law 2015.
The objectives of this new Practice Direction, just like the 2019 Rules, include timely and efficient disposal of cases; “use of suitable technology;” the just determination of the proceedings; and the efficient use of available judicial and administrative resources, among others.
At the heart of innovations birthed by this Practice Direction is the electronic filing of court processes. It is now compulsory for counsels to state their email addresses and phone numbers on their documents/processes, convert these processes to portable digital format (pdf), and forward same to the court registry via a designated email address or WhatsApp number. Parties are to pay the assessed (filing) fees via electronic transfer into the designated bank account of the court. The filed processes shall be deemed properly filed after verification and confirmation of payment by the court. Also, service of court processes may be effected by email, WhatsApp or as otherwise directed by the court; and such service shall be deemed good and sufficient.
Further, a remote hearing shall be via Zoom, Skype – for business, or any other video communication method approved by the court. Not only shall this video hearing be recorded by the court, counsels/parties may also record it “with the leave of court.” The game has truly changed!
Lagos State Judiciary is not alone. The Federal High Court of Nigeria, through the Chief Judge, Honourable Justice John Terhemba Tsoho has equally issued the “Federal High Court of Nigeria Practice Directions 2020 for the Covid-19 Period” which is in pari materia with that of Lagos State. However, payment of filing fees shall be via Remita; and hearing notices may be effected via WhatsApp, emails, text message or as may be directed by the court. A virtual proceeding may be by Zoom, Skype or any other audio-visual platform adopted for adjudication. This Practice Direction was issued and came into effect on May 18, 2020.
Of course, there is a school of thought which disagrees with these new directions. They argue that virtual hearing is unconstitutional since Section 36 (3) & (4) of the 1999 Constitution (as amended) provides that proceedings must be held in “public.” While this article does not seek to subject virtual sitting to a constitutional laboratory test to ascertain its validity, with due respect, this argument does not appeal to me in the least. One finds it rather regressive, narrow and academic. The reason is not far-fetched. The internet is a public domain and one cannot imagine anywhere more public than the network of networks – the internet. The Supreme Court of Nigeria, Per Niki Tobi JSC, in the case of Simon Edibo v. State (2007)13 NWLR (pt 1051) 306 2 defined public as a “means for the use of everyone without discrimination. Anything, gathering or audience which is not private is public.” Besides, the immortal words of Lord Denning in Parker v. Parker (1954) All E.R.22, comes handy in times like this. The revered English Jurist said, “…if we never do anything which has not been done before, we shall never get anywhere. The law will standstill, while the rest of the world goes on, and that will be bad for both.”
For lawyers in corporate practice, with the right information and competence, tasks such as risk management and compliance, advisory and consultancy, may easily be accomplished with the aid of technology. Virtual board meetings are already being held, subject, of course, to the provisions of a Company’s Articles of Association. In this regard, the Institute of Chartered Secretaries and Administrators of Nigeria (ICSAN) has also released a guideline on the 24 of May, 2020 titled “ICSAN’s Guidance on the Venue of a Virtual Meeting.” The institute noted that the Companies and Allied Matters Act, (CAMA) does not have any provision sanctioning a virtual meeting, but it does not prohibit same. Giving a broad interpretation to Section 216 of CAMA, it was suggested that to ensure business continuity, the way out of this quagmire occasioned by the Covid-19 pandemic with regards to AGMs, Board Meetings, or Committee Meetings where the meeting is held via Skype and the likes, is to record one of the following as the venue of the meeting; to wit:
- the head or registered office – where the board charter of company’s articles stipulates so;
- the address of the host of the meeting who should either be the chairman of the board secretary;
- In the case of an outsourced secretarial firm that serves as Board secretary to an organization, the venue should be the address of the organization whose meeting is to be held;
- Where the meeting is a hybrid of both virtual and physical attendance, the physical location should be recorded as the venue.
Last month, one of Nigeria’s foremost banks, United Bank for Africa (UBA), held its annual general meeting virtually. It is hoped that all the regulators including Securities and Exchange Commission, the Corporate Affairs Commission, Financial Reporting Council of Nigeria, NIMASA, NAFDAC, NOTAP, FIRS, ministries and government departments will make compliance with various regulations seamless through the adoption and application of appropriate user-friendly technology.
For law firms who act as company secretaries, the onus is on them to advise the board of directors to amend their Articles of Association to allow directors to attend board meetings irrespective of their geographical location around the world and save companies from the threat of collapse in these unusual times.
Technology and the virtual sitting it enables comes with a myriad of advantages: speed, convenience, flexibility, and in most cases, elimination of huge costs thereby leading to more efficiency, improvement in quality of service delivery, mental and physical health of legal and para-legal staff. For instance, it dispenses with the need to fly a witness from overseas for cases which do not go on sometimes. Tech-enabled legal research is undoubtedly faster and more convenient than traditional manual research. Tech giants, Twitter, has blazed the trail when it announced that its employees who wish to stay at home and work forever may now do so. In no distant time, various organisations and law firms will take a cue.
It is pertinent to state that investment in the right technology is what makes all the difference. Investment in this regard shall be categorized into two broad areas, namely (1) people and skills; and (2) technological tools. People here refer to the acquisition of the right skills which includes, research and presentation skills, a mastery of Microsoft Office packages – Word, Excel and PowerPoint. Many senior lawyers in our jurisdiction lack this fundamental skill. There is no hiding place anymore. Technology, as used here, includes a subscription to, and installation of necessary legal and business Apps and resources such as electronic law reports, e-copies of relevant legal textbooks and precedents, Zoom, Skype, Microsoft TEAMS, WhatsApp, legal research resources such as Westlaw, LexisNexis, Westlaw Edge, Bloomberg Law’s, AI-powered Points of Law and others. Other important tools include portable computers, projectors, functional websites, official mobile phones/tablets for staff, Wifi and purchase of data bundles. In an article published on LawSites by Robert Ambrogi in December 2018, the veteran lawyer stated that investment by tech companies into legal resources exceeded $1billion USD in 2018 alone. This is a strong testament to the fact that law firms in other jurisdictions are already miles ahead of the majority of their counterparts in Nigeria. But the race is a marathon and it is not yet over.
One is not unaware of network fluctuation or instability and the power supply may be of great and legitimate concern to law firms and employers since many of them use back-up generators in their various offices. To check these peculiar challenges in our jurisdiction, it calls for wise investment decisions such as purchasing of laptops with long battery life, investment in inverters, generator allowance for some key staff, procurement of alternative Wifi to be used as a substitution in the event of network fluctuation.
Adoption of technology is a swim or sink choice. The more the delay, the lesser a firm’s chances of survival. The choice before lawyers is that of life and death. An individual law firm is its own “supreme court” in this matter – and the principle of nemo judex in causa sua is not applicable. I hope you make the right decision.
Anselm Okoli Esq is a legal practitioner based in Lagos, Nigeria. H can be reached at email@example.com