Funmilayo Odude, Legal Practitioner, Damod Law Practice
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Use of ICT in the courts needs to scale up 11 Mar 2019
A courtroom with ICT equipment
The Lagos State Judiciary has been the pacesetter in procedural innova-tions, systems and structures in the Nigerian justice system. There is good reason for this. Lagos unarguably has the busiest state high court in the country. A number of commendable measures have been taken by Justice Opeyemi Oke since she assumed the position of Chief Judge (CJ) of Lagos State in September 2017.
One of such measures was the creation of the Small Claims Court to handle disputes involving sums not exceeding five million naira. There was also the designation of some courts as special offences and sexual offences courts. Recently, the CJ launched a revised version of the civil procedure rules of the court. The new rules, which became effective on the 1st of February, 2019, further imbeds the use of alternative means of dispute resolution, particularly mediation by parties before approaching the courts.
The essence of the rules is to put litigation as a final resort in dispute resolution. But would these rules be enough to decongest the dockets of the courts and speed up the litigation process?
The pre-condition to attempt mediation before filing an action at the High Court of Lagos State was introduced in 2012 under the civil procedure rules of the court that were launched at the time. Under the 2012 rules, a litigant instituting an action must file – along with his or her originating processes – a form called the pre-action protocol form. (This provision did not however apply to fundamental rights and matrimonial cases, which are governed by their own rules created under the Constitution and the Matrimonial Causes Act, respectively.)
The pre-action protocol form is a statement on oath signed by either the litigant or his or her legal practitioner, stating that there have been attempts to amicably settle the suit but such attempts have failed. The form further states that the litigant has sent a memorandum to the other party detailing his or her grievances, the claims or remedies he or she would be seeking from the courts and also stating a proposal for settlement.
On several occasions, judges of the High Court had to determine the effect of non-compliance with any or all the steps stated in the pre-action protocol form. There were two schools of thought from the High Court of Lagos itself. The first was that the effect of non-compliance would prevent the process from being accepted at the registry for filing. Where it had, however, been accepted, the failure to comply was treated as an irregularity and, thereby, did not affect the validity of the suit.
The second and stricter school of thought considered the steps in the pre-action protocol as conditions precedent to instituting a suit. Therefore, failure to comply with them would affect the validity of the suit. The Court of Appeal, in interpreting the 2012 rules, leaned towards the former school of thought.
The 2019 civil procedure rules have erased all doubts about the pre-condition for mediation before approaching the courts. The new rules provide not just a more extended process, but also more stringent consequence for non-compliance. Based on the provisions of the 2019 rules, a litigant must send to his or her opponent a memorandum of claim spelling out the details of the claim as well as a proposal for settlement before commencing a suit.
The recipient of the memorandum is given seven days to respond to the memorandum. If the intending litigant does not receive a response, he or she must send a reminder, giving his or her opponent seven more days to respond. These letters, along with other correspondences that might have been exchanged between the parties regarding an amicable settlement of the dispute, are to be annexed to the pre-action protocol form and filed as a bundle, in addition to the processes filed to commence the suit. Failure to adhere to this preliminary procedure would nullify the entire suit.
I am in agreement with several stakeholders who have stated that the innovations in these rules would stimulate a more proactive approach to litigation, encourage litigants to harness the benefits of the alternative modes of dispute resolution and reduce potentially spurious and vexatious claims. I, however, doubt that it is enough to decongest our courts or even ensure a speedier system of administration of justice.
The Lagos State High Court, in its attempt to incorporate international best practices, must not limit itself to merely forcing litigants to attempt mediation or other forms of alternative dispute resolution before filing court cases. The court must also begin to harness technology to make the administration of justice much faster, including making case management system more efficient.
The only technology-driven innovation in the 2019 rules is the provision that allows substituted service (any other means of delivering court processes or papers other than in-person delivery) by electronic mail. We need to take better advantage of information and communication technology (ICT) innovations and solutions been provided in almost every sector today.
Rules and procedures of court must begin to provide for an efficient and robust electronic process – including electronic filing and exchange of court processes. The existing electronic filing system (e-filing as it is called in the courts) in the Lagos State Judiciary is fraught with so much inefficiency that it has been reduced to scanning of paper documents.
A more efficient technology-driven system would enable litigants and their lawyers enter their information and state their cases by filling relevant forms on the courts' website. The litigants would also be able to make payment of filing fees and other incidental expenses online. The final document bearing the suit number, stamp of the court and receipt for payment can, thereafter, be printed by the litigant or his or her legal practitioner and reproduced in the number of copies required.
To further deepen the automation of court processes, the Legal Practitioners Act and the Evidence Act would need to be amended to allow for electronic stamps and electronic signatures, respectively. The process can, however, begin with the legal community lobbying the National Assembly for these amendments. In an automated environment, subsequent filing in a suit will be done online and a copy of what is filed can be sent to the email addresses of all the parties.
The system of electronic filing described above is not impossible to implement in the federal courts or high courts of states in Nigeria. The Corporate Affairs Commission has successfully implemented an automated system. Unlike in the recent past when physical incorporation forms were procured and filled manually, and then submitted at the offices of the Commission, all the details of a prospective company or enterprise are now filled electronically on the Commission's website.
Both the registration fees and the stamp duties are paid electronically via the Remita platform (created and run by SystemSpecs – the approved collection agent of the Federal Government). The completed and duly-stamped forms, including the memorandum and articles of association, are then printed out and signed by the necessary parties and then scanned and uploaded to the website. The physical copies are dropped at the Commission at the point of collection of the Certificate of Incorporation and other certified incorporation documents. Most post-incorporation returns and filings are also done online.
I quite agree that encouraging amicable settlement of disputes, preventing frivolous filings and discouraging stalling of cases can improve the judicial process. However, the impact of this reform will be minimal with regard to eliminating the backlog of cases and improving the overall efficiency of the court system.
An efficient court system can only be properly achieved with the effective use of technology in and by the courts. Basic electronic filing and document management tools will ultimately improve the delivery of justice in the country. Other tools that can boost court proceedings include video conferencing, audio and video recording equipment, as well as assistive technologies – which are products and equipment designed to improve learning, working, and daily living for persons with disabilities.
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