Judiciary: Working Within Covid-19’s Choking Space

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Davidson Iriekpen highlights some of the practical guidelines and measures approved by the National Judicial Council to enable safe court sittings during the challenging period of the COVID-19 pandemic

FROM THE COURT
As an important arm of government that must continue to run all through the period of restrictions and lockdown as a result of the deadly COVID-19 pandemic, the National Judicial Council (NJC), last week, approved far-reaching guidelines that could enable the courts to function perfectly.
The guidelines, which were contained in the report submitted by the 10-man committee set up the Chief Justice of Nigeria (CJN), Justice Tanko Ibrahim Muhammad, to come up with urgent practical strategic measures to ensure the courts continue to function despite the lockdown, recommended ways to move the courts forward in this difficult time.

Submitting the report to Justice Muhammad in Abuja, the head of sub-committee and Acting President Court of Appeal, Justice Monica Mensem, said the guidelines though do not replace or substitute for the respective rules of courts, they complement the rules and make specific provisions that would guide justice administration for as long as COVID-19 pandemic subsists and possibly beyond, advising that the guidelines should be applied by all courts in the country – federal and states judiciaries.
Justice Mensem enjoined all heads of court to take primary responsibility by ensuring the compliance of the judicial officers over whom they superintend by making sure that the intention of the NJC in justice administration despite the challenges and glitches occasioned by the COVID-19 pandemic is achieved.

Receiving the report, Justice Muhammad, who doubles as the Chairman of the NJC, implored all heads of courts to be guided by the guidelines by adopting or formulating, rules, directives and guidelines, as appropriate to the legal and material circumstances of their courts, with a view to achieving the goal of safely delivering justice in these challenging times.

At its 91st meeting held virtually on April 22 and 23, the NJC set up a 10-man committee headed by Justice Olabode Rhodes-Vivour to develop a practical guidelines and measures to enable safe court sittings during the challenging period of the COVID-19 pandemic.

Apart from Justices Rhodes-Vivour and Monsem, other members of the committee include the Chief Judge of the Federal High Court, Justice J. T. Tsoho; President of the National Industrial Court, Justice B. B. Kanyip; Chief Judge of the FCT, Justice Ishaq Bello; Justice Kashim Zannah and Justice O. A. Ojo.

Also, members of the committee included three private practising Senior Advocates of Nigeria (SANs) – President of the Nigerian Bar Association (NBA), Paul Usoro, A. B. Mahmoud and D. D. Dodo.
The committee was to, among other terms of reference, initiate guidelines or template for court sitting despite the COVID-19 pandemic, explore possible areas of collaboration between the judiciary and the office of the Attorney General of the Federation (AGF), stakeholders in the justice sector and decide on any other measures that the committee might deem fit in realising the set objectives.

The report, which has since been approved by the NJC and sighted by THISDAY, makes it mandatory for heads of courts to ensure that they continue to dispense justice despite the challenges posed by the Covid-19 pandemic. They are also directed to establish virtual or online court sittings especially, in matters that are not urgent or time-bound, provided such cases would not require the calling in of witnesses.

“Virtual court sittings otherwise referred to as remote court sittings or online court sittings, should be encouraged and be promoted by the courts and counsel. All judgments, ruling and directions may be delivered and handed down by the courts and through remote court sittings. Save for extremely urgent and time bound matters, contentious matters that require the calling of evidence in a physical courtroom setting should not be called up by the courts at this time,” the report said

It noted that it was the responsibility of Heads of Courts to determine the matters that fall within these set boundaries and should also publish the list thereof for the information of judicial officers, litigants, counsel and members of the public. The location for the online proceedings, according to the guidelines, could either be within the usual rooms of the court or inside the judges’ chambers and should have at all times, the judge or panel of justices, court officials and security personnel, while parties can also join remotely.

The report added that except with the leave of court, only the judicial officer(s), court officials and security personnel should be the ones in the courtroom for any virtual court sitting. It noted that except with the consent of the court or the prior written agreement of the parties, it is not permissible for any of the parties to a matter that is being heard virtually to be in the courtroom with the judicial officer(s) during the virtual court sitting while the other party or parties to the same matter join the proceedings remotely.

The guidelines, however, provided that for the purposes of delivering judgments or rulings, the judicial officer(s) may liaise with the court officials and conduct the virtual court sitting from whichever location the judicial officer may be using a court facility, when he/she is marooned in a location away from his/her usual stations, because of the present situation pursuant to Covid-19.

“However, where virtual hearing is not possible, a judicial officer that is marooned outside his station may upon obtaining the fiat of his head of court, deliver the judgment or ruling of his court that is time bound or urgent in the courtroom of any of the divisions of his court closest to his location. The provisions of this guideline in regard to physical sittings of the courts shall apply in all respects to such sitting of the court for the delivery of the judgment or ruling”, it added.
The guidelines directed that lawyers participating in the online proceedings to be properly robed in all appearances and must also address the court on their feet just like they do in the physical courtroom. While parties in the case may join their lawyers in the online hearing, members of the public can also join the online streaming of proceedings through a publicised Uniform Resource Location or web address provided by the respective courts.

For conditions for physical courtroom sitting or hearing, the courts are directed to abide strictly to the directives of the World Health Organisation (WHO) and relevant agencies of the federal and states governments, including but not limited to the Nigeria Center for Disease Control (NCDC), in checkmating the spread of the pandemic.

Amongst other measures, access control, infrared temperature detector/thermometer, space requirement per person, physical distancing within the court premises, protective gears, sanitation and periodic decontamination of the courtrooms are some of the things heads of courts are to provide and observe. Every court/judicial body administrator is also required to provide adequate safety equipment like facemasks and sanitary stations with hand washing facilities to the judges, justices, staff and general court users.

“There must not be more than 20 persons in any courtroom at any time during any court sitting. This number shall include the judge, in a trial court sitting and the justices in an appellate court panel, counsel for all the parties, the litigants, the court officials, the security personnel for the court and members of the public who may be attending to observe the proceedings.

“Social/physical distance of not less than two-meters (six feet) must be maintained between each person in the courtroom including between the court registrars and the judge or panel of justices and even between the court registrars themselves. That distance must also be maintained between the Justices in a panel of an appellate court sitting. Maintaining such social/physical distances might require that some rows of seats in the courtroom be left vacant and unoccupied by counsel, court officials and other court attendees,” the guidelines stipulated.

“Matters that have multiple parties the aggregate (notably, the counsel) of which, added to the judge or panel of justices and the court officials and security personnel would exceed 20 in number should not be listed for hearing at all by any court at this time, particularly where it is impossible or impracticable to limit the number of counsel and other attendees.

“In the Covid-19 era, case management demands that the number of cases for each day, both at the trial and appellate courts, be drastically reduced to the lower single digits as part of the human traffic control and social/physical distancing mechanisms in the courtroom,” it added.
Other measures put in place include the online filing and serving of processes as well as electronic payment of filing and other fees.

In the meantime, the NJC in partnership with the Nigerian Bar Association (NBA) both at the national and states level has commenced the publication of a Counsel’ Directory that would contain addresses, emails and telephone numbers with functional WhatsApp capabilities to which processes and hearing notices may be served by courts and parties.