“Covid-19; The Aftermath: What lessons for Legal Services, Legal Practice and Justice Delivery?” – Folabi Kuti

A presentation by Folabi Kuti Esq. at a Webinar of the Law Firm Management Committee of the Nigerian Bar Association – Section on Legal Practice (NBA-SLP).

I thank the organisers, the Section on Legal Practice of the Nigeria Bar Association for facilitating this webinar discussions. It is, in itself, a recognition of the modern times we live in, and to paraphrase our Supreme Court, on a somewhat unrelated occasion/intervention as far back as 1969, ‘we can no longer shut our eyes to the mysteries of the computer age’[1] . Yes, the disruptive forces of technology intervening, happily, to enable well over 250 ‘congregants’ in a room in cyberspace, yet far-flung physical locations to participate in, and air views on a topic even as the Federal Government, acting on health advisories, has only just extended the ‘lockdown’, one of the twin measures for flattening the curve of a possible community transmission of the coronavirus pandemic. By all standards, having all 250 participants in a ceremonial hall in one physical location, as this would ordinarily have held, will be going against the other directive (in place) to deal with the coronavirus pandemic, that is, ‘social distancing’.

I know I have a rather limited time span here, and will jump right straight into it. COVID-19 has thrown up a number of critical issues. To be sure, in the wake of the ravaging global public health crisis, and the far-reaching reverberating effect on everything- human, socio-economic activities, there are useful, resounding lessons for the Legal Services, Legal Practice and Justice Delivery Sector. I’ll highlight a few.

Legal Services and Legal Practice

1. Technology is ‘A Brave New World’- Many years ago, Microsoft, the PC manufacturer, posed a fascinating question as an advertising campaign “Where do you want to go today?” It is the 21st century. Businesses, the bulk of those, revolve round the effective deployment of technology to achieve the ends. Physical activity appears vastly exaggerated. Support systems using technology like FaceTime, Skype, Google Hangout and other android/video-based options have all helped to ensure work is still being carried on remotely. Court papers, Agreements etc can be easily drawn up on our PCs in the private confine of our homes. Office meetings, clients’ meeting etc are being conducted using the Zoom and Skype platforms. Webinar has a flexible bandwidth that can enable us hold an NBA Conference of 1000 participants! This lockdown has heightened the possibility of remote activity totally replacing the traditional/physical world of work. As lawyers we should be well-positioned in that vantage position so that we, increasingly endangered, do not become irrelevant, or completely obliterated. Virtual work stations are here. Statistics are still being collated on the amount of work being done in spite of the lockdown of physical activities and social distancing. Despite the directives locking down major cities, an English Barrister in a recent interview says it is business as usual. Technology has come to his aid. The question is, ‘Where do we want to go today?’

2. Employment Contracts – Law firms, and generally legal practice in this part of the world who haven’t grappled with the question posed above, have been hard hit by the attendant measures taken to curb the spread of the disease as this has meant the non performance of contractual obligations. For context, this is not saying that the tech- savvy businesses are insulated. For lawyers, the courts are shut down anyway! As I noted elsewhere[2] there has thus been a sustained interest on measures businesses can adopt to keep in business. It is thus safe to predict that post COVID-19, there will be an upsurge in litigations arising/flowing from disputations as to new positions brought about by the rippling effect of this pandemic. Take, for instance, how are law firms to handle payment of salaries for staff in April which has been a FULL LOCKDOWN month. There are useful lessons to take away here, even as drastic measures are been taken. What are the legal considerations that should be taken into account in implementing these measures? I will attempt to answer that by prefacing with an advice from both the stance of economics and law, and that is, except it is absolutely necessary to cut jobs to survive, businesses post-COVID should not be looking at cutting jobs or taking any such drastic measure but should try and come up with imaginative solutions and see how best situations can be managed/measures taken to keep the same workforce but – loosely speaking- renegotiating[3] a few workable terms- and by this I mean pay cut, deferring on increment in salaries, payment of bonuses, promotions, unpaid leave, supplanting the annual leave/vacation of staff with the four weeks lockdown Govt has imposed as measure to deal with spread of a ravaging viral disease and such other measure that may keep the business going with same workforce. But first, engaging the staff (both the lawyers, and administrative staff) on such measures. Unilateral decisions taken/implemented in response to COVID-19 and the frustration that is attending upon many of the employment contracts may well be in the borderline of unfair labour practice and actionable constructive dismissal. I cannot stress enough the need for law firms as employers of labour to always act, and engage in accordance with the emerging jurisprudence in labour and employment law practice and adjudication by the law courts. Suffice to say that even law firms are beginning to swell the National Industrial Court of Nigeria’s judgment list and, are being adjudged wrong and ensuing damages in tow, where, for instance, payment of salary in lieu for disengaging staff is not made contemporaneously with the exit letter (see Kayode Tijani v FRA Williams (Jr) Unreported Suit No. NICN/LA/130/2015[4] , judgment delivered on 9th July 2019; per Kanyip J. (as he then was, now President, NICN), or sadly, where the Court (in Unreported Suit No. NICN/LA/432/2014 Ifeanyi Okeke Esq. v Wale Ogunade[5]) had as much as to lament thus in the text of the judgment: ‘This case once again shows the pain, hardship and difficulty which some young lawyers undergo in the hands of some senior colleagues, who ordinarily should encourage them. I commend the tenacity and dexterity of the claimant in pursuing justice in this matter since 2012 up to this stage, in the same vein I condemn the conduct of the defendant in trying to wish away the earned salary of the claimant in this suit.’ , and on appeal to the final court on labour matters, the Court of Appeal, Lagos Division[6] affirmed the judgment of the NICN, with Ogakwu JCA voicing similar sentiments as the trial court in the following words- ‘Rather sadly, the Appellant, even though not contesting that the Respondent discharged his duties as a junior counsel in Chambers for September 2012 and had not been paid the earned salary of N30,000.00, appealed against the judgment of the lower Court.’

The high watermark of applicable best practices and standards that is required in the instant scenario is what ILO Decent Work Agenda emphasizes as ‘social dialogue’. Participatory Democracy. Engaging the employees. No unilateral decision. British Airways engaged its over 30,000 workforce to reach a consensus on a 20% pay-cut of salaries for the months of April and May. It is not necessarily consent but a fair and transparent process that evinces continuous dialogue with a view to arrive at a consensus. That’s my understanding of the ILO Decent Work Agenda.

3. Tidying our affairs – Time to revisit statutory remittances and policies we should be having in place to cushion the effect of both foreseeable and unforeseen contingencies. Where policies have been properly taken out, and paid for, insurance may well be the source to deal with salaries at this time. Wimbledon will not hold this year for the first time in its over 100 years of annual championship. Yet its cashing in $141M insurance claim to pay salaries and meet other contractual obligations from an optimum insurance policy cover for which it has always paid $2 million a year for the last 17 years.
4. Legal advisory services for clients- imaginative solutions to help clients withThe 1889-1890 flu pandemic was estimated to have killed 1 million people. A medicine advertised as a cure for the flu, with a promise of a £100 pounds reward for anyone who is able to disprove the claimed potency of the drug is the facts pattern of the famous English case, Calill v Carbolic Smoke Ball on the elements of contract.

There are opportunities in the horizon. As indicated earlier, the portents are that post COVID-19, there will be an upsurge in litigations arising/flowing from disputations as to new positions brought about by the rippling effect of this pandemic. The economy has been negatively affected. Bankruptcy and Insolvency proceedings, Mergers and Acquisitions etc are some of the areas that will ‘boom’ in the wake of all these.

As we brace up for the instructions, let’s also help clients to come up with imaginative solutions that help them to where possible keep the portfolio of contingent claims arising from the uncertainties of litigation to the barest minimal. Let’s help them to keep in business, whilst we are in business, as well. Decongesting the overworked dockets (of the courts) will not keep us out of business.

5. ‘A Whole New World’- Let’s also look at new areas/opportunities. There are new areas of practice opening up. IT and Telecommunications Law. Foods & Agriculture. Start-ups. Developing oneself with the aim of specializing in any/some of these new areas is almost inevitable.

Justice Delivery System

Remote Hearing in the period of COVID-19

Remote hearing simply refers to the deployment of telephone and video conferences for the hearing of cases, while the litigants and adjudicators call in from different locations.

Earlier today, Vikas Pahwa, an Indian Senior Advocate, made a post of an interesting hearing he had before a New Delhi High Court yesterday. To quote him ‘Had to wait for an hour for my turn. It was a good feeling to see judges working from Home & hearing cases by video conferencing’ . Apart from the many more features we share, India, like Nigeria, is a third world country.

Nearer home, Kenya Judiciary has been at an optimal best attending to cases, and delivering judgments via digital platforms like Zoom, Skype, videoconferencing and the other digital platforms[7]

To ensure that the administration of justice is not ground to a halt as a result of the COVID19 social distancing measures, the Judiciary of England and Wales also suspended in-person proceedings but not without issuing Protocol Direction as regards Remote Hearings. Bailli[8] , the online free resource library/judgment portals of decisions from the English courts is being regularly updated with decisions from the courts- through remote hearing. A landmark decision of the UK Supreme Court touching on data breach, limits of employer’s liability in vicarious liability action was rendered only just recently, even with the lockdown[9].

In the wake of the outbreak of the COVID-19 pandemic, the worst hit by the lockdown measure now being enforced by Nigerian Government is the justice delivery sector. It has been practically ground to a halt! In fairness, the Chief Justice of Nigeria, and the President of the Court of Appeal have issued directives that seem to allow hearing of ‘essential and time bound matters’, even as these directives do not make clear provision on the conduct of these priority proceedings via remote hearing using the digital platforms. Today, it is a bit unclear if there is really any traction in this regard. Challenges regarding infrastructure may account, and this will take the collective responsibilities of all stakeholders- the Nigeria Bar Association, the Government, the Judiciary etc. But beyond all that, a remote hearing can proceed through inexpensive platforms such as the Zoom video-teleconferencing, which can be enabled through protocols, or practice direction issued in this regard with clear statement, or guide as this rough draft here (paraphrased from similar Protocols from the UK, New Zealand, and Canada)-

1. It is important that during this period of disruption for which this Protocol is made applicable, counsel shall co-operate to ensure that wherever possible, matters can be dealt with on the papers. Court is committed to continuing to deal with priority proceedings to the extent it can do so safely in the current and developing environment.
2. Hearing of such cases designated ‘priority proceedings’ will need to be able to be conducted using remote means of participation such as video links, Skype or Zoom platforms, emailing system or telephone link. Counsel who wish to nominate their case to be heard in this way should therefore confer to ensure this can be done and then advise the Registry accordingly, through specified emails stated below.
3. Considering that the matters to be dealt with during the period of the lockdown of activities nationwide are priority proceedings, the majority of matters will be: bail appeals/applications; conviction and sentence appeals; custodial remands; enforcement of Fundamental Human Rights applications; urgent injunctions, and or matters/applications in which resolution is time critical.
4. The Court will deal with priority proceedings in accordance with the applicable criteria stated above. The Court will issue further updates as the situation develops.
5. The ability of parties to comply with timetabling directions or orders is likely to be compromised. Counsel and self-represented litigants are expected to confer and make reasonable accommodation and provide the Court with consented amendments to the timescales as ordinarily indicated in the Rules of Court for taking such step(s) in proceedings.
6. During the continuation of the priority proceedings for which this Protocol applies, documents will be received for filing in person at court registries. All filing of court documents is to be by email. If a party does not have the ability to file electronically, mail will still be periodically checked. In addition, the Rules Committee will work to draft amendments to the High Court Rules, where not already done/in place, to authorise electronic filing of documents, possible relaxation of reliance on unsworn affidavits in certain conditions and to facilitate the ability for the Court to conduct further remote civil hearings.
7. For documents filed during the continuation of that alert (whether electronically or by mail), the payment of filing fees is to be made by online money transfer/payment into………………..
8. Addresses for filing electronically and by mail

All electronic filing is to be to the following addresses: If any party wishes to contact the court regarding an urgent matter, these emails are also the addresses to use.

Thankfully, the Rules regulating practice and procedure in some of the superior courts of record, for instance, the Federal High Court (Civil Procedure) Rules 2019 (at Order 58 thereof) and the National Industrial Court Rules, 2017 (Orders 6A and 66 thereof) already make ample provisions enabling electronic filing and virtual hearing. The Federal High Court Rules, for instance, in O.58 provides for the use of technology for the filing of court processes; hearing (calling in aid such electronic means); signing of such electronically filed documents (O.58. r.8 & 9) and dealing with e-filed processes affected by infrastructural challenge such as technical failure or power outage.

The gaps here, to enable virtual hearing, can be filled by the protocol guidelines, or practice directions. Similarly, in the other superior courts where the Rules are silent or do not contain provisions enabling virtual hearing, the heads of court are empowered to make necessary/urgent practice direction to enable same the effective administration of justice in the courts, even in an unprecedented crisis period as the present. I thank you all for listening.

LLM.BL, Partner, law offices of Perchstone & Graeys

folabikuti@perchstoneandgraeys.com, 08023419644.

[1] The earliest mention/recognition of computer-generated pieces of evidence (in a Nigerian court) was the obiter statement of the Nigerian Supreme Court in Esso West Africa Inc. v T. Oyagbola (1969) 1 NMLR 194 where the Supreme Court in a pronouncement tinged with foresight noted as follows :“The law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer. In modern times reproduction and inscriptions on ledgers or other documents by mechanical process are common place and Section 37 cannot therefore only apply to books of accounts.”

[2] Presentation at BusinessDay/MTN Webinar ‘Social Dialogue on COVID-19 and the World of Work’, April

[3] The present crisis is an unprecedented one and these measures, that is, lockdown and social distancing, inevitably frustrating the performance of contractual obligations may almost certainly not have been contemplated in drawing up the employment contracts.

[4] See the NICN Judgment Portal . Link http://nicn.gov.ng/judgment/pdf.php?case_id=1874(as accessed on April 15, 2020)

[5] See the NICN Judgment Portal . Link https://judgement.nicnadr.gov.ng/details.php?id=4492&party=Ifeanyi%20Okeke%20-VS-%20Wale%20Ogunade (as accessed on April 15, 2020)

[6] (Unreported) Appeal No. CA/L/29/2017 Ogunade v Okeke

[7] On 3rd April 2020, a Justice of the Kenyan Court of Appeal reportedly delivered 57 rulings and judgments vide Zoom, an online video conferencing platform.

[8] www.bailii.org

[9] WM Morrison Supermarkets Plc (Morrisons) v Various Claimants (2020) UKSC 12; decision made April 1, 2020.