Covid-19 Pandemic, Virtual Practice and Their Impacts on the Catholic Lawyer – Sir Adolphus Nwachukwu Esq

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INTRODUCTION

One of our professional colleagues, St. Paul once said, ‘I have been crucified with Christ, and I no longer live, but Christ lives in me. The life I live in the body, I live by faith in the Son of God, who loved me and gave himself up for me.’[1] This in my view is the way to describe the impact of coronavirus (COVID-19) pandemic (‘CVP’) in the world today. It has affected our religious, social and business interactions. The phrase ‘social distancing’ has surreptitiously entered our lexicon. It has also transformed the life of all men/women. It has created a new normal. It has forced some of us who behave like dinosaurs from our analogue way of life to the realm of digital technology. Like the Holy Spirit, the CVP has created a resurgence, a regeneration and made some of us a new creation in the kingdom of technology.[2] It was like an Armageddon between humanity and the CVP and the battle line was drawn across all lands and nations.[3] Therefore, what should be the Catholic’s response to this midnight thief?[4] In line with St. Paul, shall we remain in the sin of CVP because grace abound?[5] The crux of the matter is that the CVP has impacted negatively on the ability of the courts, tribunals, the Catholic lawyer and businesses to function effectively and efficiently. Therefore, desperate measures are needed to address the desperate situation of the CVP. This is to ensure that disputes are resolved fairly, effectively, and as expeditiously as possible, while commerce, the engine of growth of every economy remains alive and kicking.

1.0 Executive Summary

This paper starts with an introduction which narrates how the CVP has enveloped the world including the legal profession and the Catholic lawyers. It encapsulates how our lives have changed into the new normal. It goes further to give a brief history of the CVP which is still fluid and ongoing. The concept of virtual practice is introduced to drive home that the CVP was the forerunner of virtual practice. The writer looked at the concept of virtual hearing from the perspective of virtual corporate practice and virtual litigation practice. The division is understandable because the Catholic lawyer is both a solicitor and advocate of the Supreme Court of Nigeria. The next part of the paper dealt with the effect of CVP on the legal profession. The impact of CVP and virtual legal practice was also discussed within the prism of technology. The paper ended with the conclusion and also made some recommendation.

2.0 Covid-19 Pandemic, The New Normal

The CVP is caused by the severe acute respiratory syndrome (SARS-CoV-2). It was first identified in Wuhan, Hubei Province of China in December 2019[6]. The symptoms may or may not appear between 2 to 14 days after being exposed to the virus. Some of the signs of the virus are cough, shortness of breath or difficulty in breathing, fever, chills, muscle pain, sore, throat, new loss of taste or smell etc. It has been discovered that the incubation period of the virus is between the 1 to 14 days of exposure to the virus. It has been stated that the mode of transmission is human to human transmission via respiratory droplets, hence the emphasis on social distancing. The World Health Organisation (‘WHO’) has also stated some prevention tips like avoiding close contact with sick individuals, frequent washing of hands with soap and water, not touching the eyes, nose, or mouth with unwashed hands and practising good respiratory hygiene. The most important aspect of the virus is that no cure or vaccine has been discovered as at date. Therefore, like sheep without a shepherd[7] the world is scrambling for temporary measures to cushion the endemic effect of the CVP pending when a vaccine is discovered.

3.0 Virtual Legal Practice

The legal practice is not an island. It is part of the world. The world itself is a global big village. Hence, the CVP had and is still having a serious impact on the legal practice in Nigeria. Judges, lawyers, and court officials being part of the larger society drank from the poisoned chalice served by the CVP. Our lives as practitioners in litigation and corporate practice were grounded to a halt during the earlier days of the pandemic. Our way of life was taken away from us. The ‘Benjamins’ we make from our practice and use to put food on the table were lost. We cried and wept like the people of Israel by the rivers of Babylon.[8] It was during this confusion that necessity which is the mother of invention birthed for us the concept of virtual legal practice. It reminded us what we ought to know, which is, with technology we can reinvent the wheel of legal practice. However, just like Jesus Christ, the legal profession is yet to agree to welcome and embrace virtual practice.[9] Be that as it may, the reality of the CVP has opened a new vista for virtual hearings[10] of cases in our regular courts, arbitration tribunals, mediation proceedings etc. However, let us not make mistake about it, virtual hearings, proceedings, and meetings has their respective legal challenges. It is clear from the ongoing debate that the eagle has not landed. [11]

4.0 Virtual Corporate Practice

Change is the only constant in life. It is an enigma. It is like a moving train which if you fail to join, you will be left behind. The concept of virtual corporate practice did not come to abolish our corporate practice as we know it, rather it has come to fulfil it.[12] Although, CVP opened our eyes to the concept of virtual corporate practice, it had been in existence for some time. For instance, the online filings and payments have been in existence in some government agencies like the Corporate Affairs Commission (‘CAC’). Again, the concept of ‘remita’ application has been with us since 2015.

Likewise, what we have just been reminded of is that it does not make any sense to travel from Lagos to Abuja to attend a board meeting when you can host the meeting as the company secretary from the comfort of your home. What we have been made to realise is that instead of taxiing/taxying from Festac to Victoria Island to attend a pre-incorporation meeting, with applications like Zoom, Webex, WhatsApp etc such meetings can be held in less than 1 hour, thus saving precious time and cost. It is no longer necessary for a tenant to inspect a property before he enters into a tenancy agreement or buys the property when a video of the demised premises or property can suffice. Those days or years of going for inspection on 4 or 5 occasions before the property can be seen may be behind us. This is not exhaustive but suffice to say that there are better ways of carrying out our corporate practice. There is no way a corporate lawyer should not rise to the occasion when his clients have moved to the promised land of virtual technology. The inevitable consequences of living in Egypt for a Catholic Lawyer is that he may lose his clients in the short run and his practice in the long run. One of the challenges that would confront a commercial lawyer is how to navigate through the force majeure clauses created by the CVP. It is trite that some of the force majeure created by CVP were not anticipated in the agreements pre CVP. This is a serious and recondite legal challenge for solicitors and litigators to resolve.

5.0 Virtual Litigation Practice

Litigation is a game of hide and seek, even where it is against the rules of pleadings. Litigation lawyers deal with a lot of documents. The process is cumbersome and tiring. The fact that it is based on hardcopy documents makes it more daunting. The concept of virtual hearing which has evolved in our courts today is a saving grace. It reminds one of the vision St. Paul heard of a man saying to him: ‘come over to Macedonia and help us’.[13] To appreciate the quagmire we were passing through in the past, one has to look at Order 20 Rule 7 of the Federal High Court (Civil Procedure) Rules, (‘FHCPR’) 2019 and Order 36 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, (‘HCLSCPR’) 2019 and destroy his sight.[14] The above Rules provided for a witness to be examined abroad. In other words, the presiding judge, the parties, and their respective Counsel would have to travel abroad for the sole purpose of examining a witness instead of doing it virtually. Today, the accident of CVP has given birth to Practice Directions on virtual hearing from the Supreme Court, the Court of Appeal, the Federal High Court and the High Court and other courts. This has also dovetailed into arbitration which its respective tribunals have also set up its virtual or remote hearing guidelines.

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Furthermore, as stated under corporate virtual practice, the legal profession was not left an orphan[15] regarding remote hearing or proceedings before the advent of CVP apocalypse. Some form of virtual hearing has always been with us but hidden in our legal tools. Reminiscent of the letter to the Romans[16], the problem is that we have not taken time to discover it. For instance, Order 20 Rule 2 (1) of the FHCCPR provides that: “A judge may, at or before the trial of an action, order or direct that evidence of any particular fact be given at the trial in such a manner as may be specified by the order or direction.[17]” The above provision gives a trial judge of the Federal High Court (‘FHC’) the discretion to adopt remote or virtual hearing. Also, Order 58 of the FHCCPR provides for the electronic filing and e-signing of documents in the court, while Order 49 Rule 1 of the HCLSCPR provides that, the judge may, in his discretion, appoint any day and place for the hearing of causes as circumstances require. Besides, the various rules of courts in Nigeria contain miscellaneous provisions to the effect that where a situation arises which no adequate provision is made for under the rules, the court shall adopt such procedure as will do substantial justice between the parties.

Also, Section 234(3) of the Administration of Criminal Justice Act, (‘ACJA’) 2015 provides that where in any proceedings the court determines that it is necessary to protect the identity of the victim or a witness, the court may receive evidence by video link. The other party cannot complain of procedural imbalance by one party’s witnesses giving evidence in person whilst the counterparty’s witnesses giving evidence only by video link as happened in the case of Hanaro Shipping v. Cofftea Trading.[18] Therefore, since what’s is good for the goose is also good for the gander!, this writer is of the view that since the hearing of cases via digital means is already permitted in certain cases in criminal trials, it would as well be permitted in civil proceedings where the interest of justice between the parties so demands. The only caveat is that the party using the video link must ensure that the quality satisfies the minimum requirement and assist in doing justice in the case. There is no doubt that the effectiveness of either the evidence of the witness and/or the ability of counsel to cross-examine the witness may be undermined by a poor video link caused by a poor or erratic Internet connection at either end. This in itself may erode the mischief which remote hearing came to resolve and may even let to the setting aside of such proceedings.[19] Although these provisions are beautiful brides on their face value, however, they must operate within the precincts and confines of ‘public hearing’ as provided in the Constitution of the Federal Republic of Nigeria (as amended) (‘CFRN’). This writer is of the view that once they conform to the spirit of the CFRN, they can fly without wings despite any slight limitation. After all the absence of flaw in beauty is a flaw in itself[20].

The situation with the Practice Directions[21] is still fluid especially at the trial Courts. There is an ongoing debate about the concept of virtual hearing. Some people are of the opinion that virtual hearing is amenable to hearings based on affidavit and documentary evidence alone and to applications/motions, originating summons, petitions that will not get to trial[22], garnishee proceedings, originating motions etc. However, others have questioned its applicability with respect to plenary trial having regard to Section 36(3) and (4) of the (‘CFRN’), 1999[23] which provided for ‘public hearing’. However, the concept of ‘public hearing’ is relative as it was not defined by the CFRN[24] and whether it is applicable to the public or to the accused person is a story for another day.

It is important to note that in the case of Alimi and Ors. v Kosebinu and Ors.[25], the Supreme Court of Nigeria set aside the entire proceedings and judgment of the High Court of Lagos State on the ground that the trial Court delivered judgment in the case in his chambers for the reason that there was power outage. The Supreme Court was of the view that a judge’s chambers could not be classified as a regular courtroom or a place to which members of the public have the right of ingress and egress from the Court since such access is dependent on the invitation or consent of the judge.[26] The apex Court was also of the view that such sitting in chambers undermines the impartiality, independence, publicity and unqualified respect which enshrouds justice given openly without fear or favour. The Supreme Court went as far as holding that sitting in chambers is an aberration. The jury is out on whether this decision would also be applicable to a remote hearing. What is more, in zoom application there are limitation on the number of people that would participate in the proceedings. There also an administrator of the online platform who regulates the entry of persons who wish to join in to observe the proceedings. Thus, any court that imposes restriction on who can observe the proceedings would most likely be held to be unconstitutional. The counter argument would be that matrimonial causes proceedings, involving the custody of a child, are always heard in private.

The scope of the Practice Directions has also been questioned in terms of the fact that they are geared towards applications, rulings and judgments without putting into consideration pending cases.[27] Another group has split hairs on how virtual hearing can manage or control the demeanour of witnesses[28], coaching of witness, problems with electronic email service[29] and service through short message service (‘SMS’), the issue of lack of facilities and infrastructure, the issue of getting the agreement of the two parties before commencing virtual hearings[30], cost of implementation of the virtual hearing for the court, litigants and lawyers when the economy is nose diving into recession etc. We can go on and on, but the bottom line is that a journey of a thousand miles starts with a step. It is a marathon and not a 100-meter dash. Therefore, the time to start is now. In any event, virtual proceedings have become a recent global best practice. It would therefore be anachronistic for the legal profession nay the Catholic Lawyer to be moving backwards when the world is on the fast lane.

6.0 Effect of Covid-19 on the Legal Profession

The judiciary has always been the whipping boy of the other two arms of government.[31] It is rarely receptive to change. It loves tradition. In recent years it has been caught in the web of trying to preserve its tradition and embracing digital technology. It has been a recurring decimal that our judges have to write longhand and also listen and observe trial proceedings. The recording of trial proceedings is an anathema. Lawyers are always inundated with big case files and documents. We travel from Lagos to Warri to serve a court process when same can be served using WhatsApp, email, and other devices. Even in arbitration it is not unusual in local or international arbitration for parties, witnesses, and their legal representatives to be based in different countries. The implication is that they must converge at the seat of arbitration for an inperson hearing which in most occasions may be difficult and involve huge amount of costs, expenses, and time. However, virtual hearing is a mischief that can address these anomalies. The Catholic lawyer must also ensure that he works within a fine margin, by ensuring that there is an agreement between the two parties. In case of arbitration, the proponents of remote hearing have advocated for the tribunal to first consider whether the law of the place of arbitration (lex situs) permits remote hearing of cases. The tribunal should also consider whether the objecting party would otherwise use the remote hearing as a ground for challenging the award or its enforcement on the ground that he was not given an opportunity to present his case[32] or he was unable to present his case[33] or that the arbitral procedure was not in line with the agreement of parties.

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The Practice Directions stated above are an attempt by the legal profession to embrace technology within the concept of the ‘new normal’. However, there are still several challenges facing the legal profession from delivering a more accessible, excellent efficient service to the citizens of Nigeria and international clients. It has been envisaged that as we proceed on this virtual road to Emmaus, it would take a while before our aircraft stabilizes because of some inevitable turbulence in our legal sky. The issue of poor internet connectivity, data availability, inequality in earnings of lawyers, the leaking finance of some States and the Federal Government, unfamiliarity of parties with technology, reluctance of judges and lawyers to be humble enough to accept these changes, lack of behavioural changes in the legal profession etc. are some of the dangers facing the virtual practice. However, these challenges should not deter the Catholic Lawyer but should spur him/her on towards the greater goal of deploring the digital technology to deliver services to his/her clients.

7.0 Impact of Covid-19 Pandemic and Virtual Legal Practice on the Catholic Lawyer.

The Catholic lawyer is first a Legal Practitioner called to the Nigerian Bar and has his or her name in the Roll of Legal Practitioners at the Supreme Court as required by law.[34] He or she is not only a lawyer, but he is a Christian. He is not only a Christian, but he is a Catholic. Therefore, as a Catholic lawyer, he is impacted by the CVP. However, he must not take the negative impact of the pandemic as a death sentence. He must take some positives out of the CVP like taking advantage of the tools practice brought about by pandemic.

Furthermore, for a Catholic lawyer to be effective and efficient in carrying out his legal apostolate, he must embrace technology. The Catholic Lawyer’s new life in Christ must be seen in the maze of technology.[35] The positive and negative effect of embracing technology can be seen from the same prism. The Catholic lawyer that cannot effectively deploy technology to hear his client’s cases and pro bono cases is not a good asset to the Catholic Church. In stating the above, we must realise that the problem is not about not knowing how to use technology, rather it is in not disposing oneself to learning and embracing technology. A Catholic lawyer should be able to ask himself or herself some fundamental question like: what is the impact of COVID-19 on my practice? Is the impact negative or positive? What can I do to improve my practice? How relevant am I with technology? What critical role can I play using virtual technology to be relevant during and after CVP. Will I still be relevant to the Catholic Church if I am not part of the new normal. Thus, the Catholic lawyer must be equipped to be relevant in the new normal.

8.0 Conclusion

The apostolate of the Catholic lawyer makes him the voice of the Church in the legal arena. In this regard he becomes more of a ‘refugium peccatorum’ for those with legal problems. However, since the dynamism of the law is always moving its social engineering wheel, the Catholic lawyer must be relevant to every situation. The relevance of the Catholic lawyer can only be amplified by the concept of ‘nemo dat quod non habet’. He/she can only give what he has. Most importantly, just like St. Jerome said that the ignorance of the scripture is ignorance of Christ, a Catholic Lawyer without the tools of law is of less impact and assistance to the Church. The importance of technology is a necessity, not an optional luxury. The prospects of remote hearings, proceedings and as a way of commercial transaction is now a desideratum. The few legal and infrastructural hurdles threatening such prospects are clearly easily surmountable, although dependent on how fast the relevant authorities address them. Therefore, the Catholic lawyer is encouraged to wake up if he or she is still in slumber and enter the fast lane of technology. It is expected that the more the Catholic lawyer exposes himself or herself to virtual technology, the more he will have a greater level of understanding of its dynamics and the competence to use such technology. After all, Rome was not built in a day. Practice makes perfect. Virtual Legal Practice will assist the Catholic lawyer to strive toward perfection which is the goal of every pilgrim.

9.0 Recommendation

The Catholic lawyer has an apostolic responsibility like St. Peter[36] to help and lift his professional colleagues that are uncomfortable with technology by referring them to training and educational materials and resources. The Catholic lawyer must also like Andrew[37] bring the good tidings of digital technology to his or her fellow Catholic lawyers. According to Justice Myers ‘we are learning new ways to do things and they feel less ‘good’ because we do not yet have the same comfort with the technology that we have with our tried and true processes.’ We must adopt the aphorism that wisdom is born in the womb of humility[38]. It is therefore recommended as follows: –

  1. There would be a season of unprecedented growth after the COVID-19 Pandemic, but the Catholic lawyer must be prepared to grasp the opportunities that come with growth.
  1. There is a need for strategic thinking by the Catholic lawyer in post CVP to be relevant in the scheme of things.
  1. The Catholic lawyer must deliberately build capacities which would prepare him or her to handle the challenges of the future.
  1. There is no need to wait for things to happen before building capacity. No one who puts a hand to the plow and looks back is fit for service in the kingdom of God[39].
  1. The CVP has made it imperative that thinking outside the box is the name of the game.
  1. Artificial Intelligence (‘AI’) is important in this period. Though AI will not take the place of lawyers, the synergy between lawyers and AI tools has become inevitable.
  1. There is a need for change of mindset from static mindset to growth mindset.
  1. There must be a distinction between growth and relevance. Folks that entered the CVP as being intelligent may exit from it without being relevant.
  1. There is a need for adaptability with life situations and realities like the CVP.
  2. The importance of case management conference or pre-trial conference or case management strategy has been brought to the fore by the CVP.
  3. The practice in the English Courts where a member of the public or press may contact the Court officials to potentially observe remote hearings, can be adopted and implemented in our jurisdiction.
  4. The legal profession must collaborate with the judiciary to work together to ensure that the relevant infrastructure to deliver the objective of remote hearing are provided soon.
  5. The provisions of section 145(2) and (3) and 153 of the Evidence Act 2011 should be incorporated in the Practice Directions as regards the issue of service.
  6. Force majeure clauses should be provided for in future agreements to avoid situation like CVP.

Sir Adolphus is Chairman of the National Association of Catholic Lawyers Festac Town, Lagos State and a Counsel in the law firm of Mike Igbokwe (SAN) & Co.

FootNotes

[1] Gal.2:20.

[2] Titus 3:5-7, 2 Corinthians 5:17, Galatians 6:15.

[3] Daniel 2.44 and Psalm 2.2

[4] In Matthew 24:43 and Luke 12:39, Jesus Christ used the concept to describe the need for readiness by saying that if the owner of a house knew the time when the thief would come, you can be sure that he would stay awake and not let the thief break into his house.

[5] Romans 6:1.

[6] Yahoonews.com

[7] Ezekiel 34:5 and Mark 6.34

[8] Psalm 137:1.

[9] John 1:11.

[10] Virtual hearing can include audio and video hearings..

[11] The Eagle Has Landed is a 1976 British war film directed by John Sturges and starring Michael Caine, Donald Sutherland and Robert Duvall. Based on the novel The Eagle Has Landed by Jack Higgin, the film is about a fictional German plot to kidnap Winston Churchill near the end of the Second World War.

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[12] Luke 4:21.

[13]Acts 16:9.

[14] It must be noted that the arbitration rules of most of the major arbitration institutions either expressly provide for, or at least open, the possibility of dealing with matters ‘remotely’ using technology, including video hearing and telephone hearings. Thus, remote hearing is not a new feature in the administration of justice. See Lucy Marie Jamieson – COVID-19 – The Impact on Court and Arbitration Hearings L.M. Jamieson if of McNair Chambers, Doha-Qatar. www.mcnairchambers.com

[15] John 14:18.

[16] In Romans 10:14, St. Paul stated thus: ‘How then can they call on the one in whom they have not believed? And how can they believe in the one of whom they have not heard? And how can they hear without someone to preach to them?

[17] ’It must be noted that this direction or order must confirm to the Evidence Act, 2011 which deals with evidence

[18] [2015] EWHC 4293 (Comm), Teare J.

[19] See the cases of Jiangsu Shagang Group Co. Ltd. v. Loki Owning Co. Ltd. [2018] EWHC 330 (Comm), and PEC Ltd. v. Asia Golden Rice Company Ltd [2014] EWHC 1583 (Comm), Andrew Smith J where complaints were made about poor internet connectivity and poor video link.

[20] Henry Havelock Ellis who lived between 1859 and 1939 was a physician, writer social reformer and psychologist. 22 On 22 March 2020, the English courts issued a temporary COVID-19 Protocol, inter alia, to provide guidance to the courts and parties on the carrying out of remote hearings. In addition to providing practical guidance as to how the hearings are to take place, guidance is given on how to hold such hearings in a manner compliant with the principles of open justice. The Protocol is now found in Section AA of Volume 1 of the White Book and online on the website of the judiciary (https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/).

[21] On 22 March 2020, the English courts issued a temporary COVID-19 Protocol, inter alia, to provide guidance to the courts and parties on the carrying out of remote hearings. In addition to providing practical guidance as to how the hearings are to take place, guidance is given on how to hold such hearings in a manner compliant with the principles of open justice. The Protocol is now found in Section AA of Volume 1 of the White Book and online on the website of the judiciary (https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/).

[22] It should be noted that the National Judicial Council (“NJC”), Circular No. NJC/CIR/HOC/II/660 adopted and published the National Judicial Council Covid-19 Policy Report: Guidelines for Court Sittings and Related Matters in the Covid-19 Period (“the NJC Guidelines” provided for the electronic filing of processes and remote hearing of cases which do not require the taking of evidence using such platforms as MS365 [which incorporates Microsoft Teams],Zoom, Google Meetings etc. While it is noted that the NJC cannot make Rules or issue guidelines for the other Courts, it has already made a cul-de-sac by excluding evidence or trial from the Guideline.

[23] Article 10 of the Universal Declaration of Human Rights 1948, Article 6 of the European Convention on Human Rights 1951, and Article 14 of the International Covenant on Civil and Political Rights 1966 provided for the right of public hearing. However, the limitations for “public” hearing may be imposed on grounds of national security or situations of emergency. See also Lucy Marie Jamieson Ibid.

[24] Black’s Law Dictionary, 9th Edition at pg.788 defined ‘public hearing’ as a judicial session, usually open to the public, held for the purpose of deciding issues of fact or law, sometimes with witnesses testifying.

[25] (2016) 17 NWLR (Pt. 1542) 337

[26] See also Simon Edibo v State (2007) 5 SC 138 at 147 where the conviction of the accused was set aside and request for a retrial refused by the Supreme Court of Nigeria because his arraignment and taking of plea was taken in the judge’s chambers instead of in open court.

[27] Paragraphs 5 and 10 of the High Court of Lagos State (Practice Direction), (‘PC’) 2020 stated that it applies to new cases that require urgency, pending cases involving urgent or important and time bound interlocutory applications such as bail applications, adoption of addresses, rulings and judgments or any other matters as the Chief Judge may approve. It also allows for electronic filing and service of court processes through email and WhatsApp. While that of the FHC applied to criminal and civil matters and causes in that Court. See Part A, Paragraph 1 of the Federal High Court Practice Directions, 2020 for the COVID-19 Period.

[28] The observation of the demeanour of witnesses is one of the essential duties of a trial Court. The trial Court is entitled to draw inference from the demeanour of witnesses. See the cases of UTC NIG. PLC v ALHAJI ABDUL WAHAB LAWAL (2013) LPELR 23003 (SC) and NGORKA v A-G IMO STATE (2014) LPELR-22532 (CA). The fear expressed in some quarters is that remote hearing may not satisfy this constitutional requirement. However, in the case of Arconti v. Smith, 2020 ONSC 2782, Justice Myers of the Canadian High Court on 4 May 2020 rejected a lawyer’s objection to proceeding with a video conference mini trial on the grounds that his client was concerned that it would be difficult to determine the demeanour of the defendants’ witness. Justice Myers was of the view that he was in vantage position to see the demeanour of the witness from the wide screen for the video link than when the witness was inside the court room

[29] Some antagonists of the Practice Direction are of the view that it is twisted in favour of the sender of the document without taking into consideration that the document may not have been received. It was also argued that Paragraph 13 of the High Court of Lagos State Practice Direction 2020 which states that time shall begin to run from the date the process was sent and not when it was received ran contrary to Order 48 Rule 3(2) of the HCLSCPR and the convention in Nigerian legal practice. However, it is submitted that the presumptions in Section 145(1) and (2) Evidence Act, 2011 by the Court and Section 153 Evidence Act, 2011 as to presumption telegraphic and electronic messages can be used to rebut such service where it was not received or received on the date stated by the Claimant. The only problem is that it shifts the burden of proof on the defendant. It would not be out of place for the practice direction to be redrafted to incorporate these presumptions. See Prof. Taiwo Osipitan, SAN, FCArb – Lagos State Judiciary Remote Hearing of Cases Practice Direction, 2020.

[30] A calm perusal of Section 16(1) and (2) of the Arbitration and Conciliation Act (Cap. A18), LFN 2004 (“the ACA”) will show that the tribunal determines the place of arbitral proceedings only where parties had not already agreed on the place or seat of arbitration. Problem may arise where in-person or physical hearing is no longer possible, and parties had to use remote hearing. Even Article 22(2) of the International Chamber of Commerce Rules allows arbitration tribunals to adopt procedural measures as it considers appropriate, to ensure an effective and efficient case management provided they are not contrary to the agreement of parties. This forms the crux of ‘parties’ autonomy’ which is tied to fair hearing or fair process..

[31] 32 Violet O’Gorman – Digitisation of the Courts: Could COVID-19 be the catalyst needed for change – LexisNexis 4/5/2020.

[32] Section 14 of the ACA

[33] Article V (1) of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (June 10, 1958) (“the New York Convention”)

[34] Sections 2 and 24 of the Legal Practitioners Act (‘LPA’) Cap.L11 Laws of the Federation of Nigeria (LFN), 2004.

[35] Romans 6:11.

[36] In Luke 22:32 Jesus informed Peter that he had prayed for him that his faith may not fail but when he recovers and regains his faith, he should strengthen his brothers..

[37] In John 1:42 Andrew brought Peter to Jesus Christ who looked at him and called him Cephas meaning Peter.

[38] Proverbs 11:2.

[39] Luke 9:62

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