Mike Igbokwe, SAN

Erudite maritime lawyer, Mike Igbokwe SAN, has made a strong case for the retention and institutionalisation of virtual court sitting introduced during the lockdown occasioned by the outbreak of the coronavirus in the country by the Chief Judge of the Federal High Court for all matters especially for Admiralty cases. This was part of efforts to forestall pile-up of cases, which might give rise to loss of confidence in the nation’s judicial system and subsequent resorting to self-help by litigants.

He is also of the strong view that the current global trend of using in-person (physical) hearing should equally be retained even in the post COVID-19 era to complement the virtual court sitting procedure while the electronic filing of cases should be retained and sustained; all to enhance speedy dispensation of justice in the post-pandemic period

Recall that the Chief Judge of the Federal High Court had on May 18, 2020, made the new Practice Directions PD, for the period of the COVID-19, which allows virtual court sitting through video conferencing and electronic filing of cases in response to the COVID-19 protocol of physical distancing under the lockdown as part of efforts to stem the spread of the virus in the country.

Also recall that the National Assembly is currently considering a Bill to amend the 1999 Constitution to specifically provide for virtual court proceedings by adding to section 36(3), which will state as follows: “Provided that nothing in this subsection shall invalidate proceedings of a court or proceedings of a tribunal relating to matters mentioned in subsection (1) of this section (including the announcement of the decisions of court or tribunal) where same is held by remote hearing or any virtual means now in existence or yet to be developed.

Section 36 subsection (4) is to be amended by addition of sub-paragraph (c) as follows: Nothing in the foregoing paragraph shall invalidate proceedings of a court or the proceedings of a tribunal relating to matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) where same is held by remote hearing or any virtual means now in existence if yet to be developed.

While section 36 subsection of (1) is to be amended by addition of the following subsection 13: In this section, ‘remote hearing’ means proceedings or hearings of a court conducted via Zoom, Skype, Whatsapp video or any other social platform, or technological innovation.”

Igbokwe, who made his views known while delivering a speech at the Mike Igbokwe (SAN) & Co Zoom Mi Webinar Series on “COVID-19 and the Nigerian Maritime Sector: Lessons and the Way Forward”, noted that virtual hearing should be permanent in the FHC, especially for maritime cases and applied in all its proceedings henceforth and not just for the period of the COVID-19 pandemic as revealed by the COVID-19 PD.

Igbokwe therefore argued that virtual sitting and electronic filing should be made permanent features of the Federal High Courts in the post pandemic era, given their several merits, adding that it should be made to run side-by-side with in-person or physical hearing, which has come to stay as a part of ‘the new normal’ all over the world.

The foremost maritime lawyer cited a letter by the Justice Reform Project dated April 14, 2020 and addressed to the Chief Justice of Nigeria CJN requesting for a temporary deployment and subsequent permanent technological upgrade of technology for the hearing and determination of case.

He also said: “On May 6, 2020, it was revealed that the committee set up by the CJN to come up with urgent practical strategic measures to ensure that courts continued to function despite the lockdown and COVID-19 challenges, submitted its report on May 5, 2020. By that account, the committee recommended the adoption of remote hearing by courts in view of the reality of the pandemic and adopted the Circular No. NJC/CIR/HOC/H/656 dated May 6, 2020 of the National Judicial Council NJC recommending that all heads of courts and judicial  bodies ‘continue to include the use of appropriate technology on virtual or remote hearings’ and provide strategic measures and guidance for courts.

“If the non- resolution of maritime disputes or non-resolution by the Federal High Court FHC of maritime disputes due to the COVID-19 induced intervening actions, had not been addressed by the FHC Practice  Directions 2020 for the COVID-19 period; more losses would have been incurred, confidence lost in the FHC , self-help resorted to that could have led to anarchy.

“Now that the FHC is fully prepared for virtual hearing and e-filing, it should proceed with their permanent and continuous use in maritime claims without further delays. Whether virtual proceedings are introduced by the amendment of the 1999 Constitution as proposed in the Bill before the National Assembly, or by the FHC COVID-19 PD, virtual hearing has come to stay as a part of the ‘new normal’ in our maritime proceedings and should be used in all maritime claims and disputes.

“Virtual hearing in Nigeria is still a work-in-progress which would need some more time especially for the provisions of digital infrastructure, to find its feet and its benefits attained.

FHC started well but should fine-tune and improve on the provisions of the COVID-19 PD already highlighted in this presentation.

The Federal High Court should urgently fully implement Order 58 of the FHC on e-filing in all its courts, so that all maritime litigants and courts can start using same and enjoying its benefits. It should therefore be sufficiently funded to allocate enough funds to acquire the hi-tech needed for virtual hearing infrastructure since it is the way to go in the ‘new normal’ age”

Igbokwe further argued that there is urgent need to reform of the Admiralty Jurisdiction Act AJA 1991 and Admiralty Jurisdiction Procedure Rules AJPR 2011 to quicken administration of justice in maritime claims and disputes.

It was gathered that the Nigerian Maritime Law Association NMLA had set up The Admiralty Law and Procedure Reform Committee to review the AJA, AJPR and their problem areas including difficult court cases hampering the quick determination of maritime claims/disputes.

The Senior Advocate of Nigeria, noted that the committee submitted its report to NMLA’s EXCO last month, adding that even though he is the second Vice President of NMLA, he is unable to make the contents of the report public until its EXCO has taken a final decision on the report.

“AJA is 29 years old and has never been amended since it was enacted. AJPR is nine years old. They are both long overdue for amendment to meet modern trends, international best practices that consider our local circumstances, enhance international trade and fast and efficient maritime dispute resolution.

“In making rules, it would be necessary for the FHC to take the legal practitioners along to enable them make inputs. Fast-tracking of hearing and determination of maritime claims/disputes and appeals. There is need to attract to the FHC, lawyers that are educated and trained on maritime law because it is a specialised area of law that is sui generis.

“There is also need for regular and continuous training of FHC judges on maritime law apart from the trainings organised by Nigerian Shippers Council and Nigerian Maritime Administration and Safety Agency NIMASA. NMLA has already offered to conduct such training to strengthen the maritime capacity of Judges of FHC. 

A Judge of the FHC or Justice of the Court of Appeal or Justice of the Supreme Court trained or educated or experienced in maritime law, will quickly determine maritime claims/disputes and enhance the administration of justice therein”, he had argued.

Other benefits include attracting foreign direct investment FDI, which Nigeria’s economy needs so much to grow, considers as a paramount consideration, the nature and speed of dispute resolution mechanism in a country.

He also said: With the introduction of e-filing and virtual hearing in the FHC, the time has come for the introduction of teleconferencing in the hearing and determination of urgent maritime applications. For instance, an applicant for the ex parte arrest of ship or other property or interim application for mareva injunction, should after e-filing the processes, be able to make from his office or home, an audio or telephone conference with the Judge of the Federal High Court in his office or home, during which the application can be heard and determined one way or the other”.