Nigerian courts have been closed since March 24th, 2020 – for more than three weeks, and there’s no clear indication of when the lockdown will be over. It’s almost certain that our courts will not return to their usual operations even after the pandemic. In this article, we identify developments that may determine whether the courts will return to their usual operations. We also identify steps that may be taken to reduce the impact of the lockdown and the changes we expect.
Three main developments may determine whether the courts will return to the way they were operated before the pandemic:
Although there are several promising researches on vaccines, chances that one will be available before the end of this year is low. It may take up to 2021 before any vaccine can be widely deployed.
One of the major obstacles to the fight against the pandemic is the inability to ramp-up testing to prevent the spread of the virus. There are several innovative ideas on how the problem can be solved. Any affordable solution that can test several people in a short time and without specialist skill would be a game changer. Access to court will most likely be subject to a negative test and the courts will most likely operate as usual.
No regimen has been approved for treating the disease and there is no chance that one will be available before the end of this year. Large scale development of any effective regimen in the next few weeks will most certainly move us closer to where we were before the pandemic.
Except if any of these developments happens soon, it is likely that there will be several major disruptions and changes in the way we used to work and relate with each other. Those changes will affect many sectors including dispute resolution. We have pointed out below the changes we expect in dispute resolution in Nigeria:
Delays and long adjournments
We expect introduction or amendment of regulations guiding access to public places. Social distancing and improved level of hygiene will most likely be observed in courts. Some Nigerian court rooms are small – especially the Federal High Court in Lagos and some magistrates courts. We expect fewer cases to be heard per day to assist with social distancing. This means that some cases that have been fixed before the pandemic may be moved to another date, which may be far apart. It may also mean that parties will have to reconsider their stance on some applications to save time.
Extension of Time
There are steps that parties should have taken but have been prevented by the lockdown. We expect that the heads of the courts will issue Practice Directions extending the time for the parties to take them. This has also been indicated by the Attorney-General of the Federation, Abubakar Malami, SAN. An act or law may also be passed by the National Assembly and State Houses of Assembly extending the time under some acts and laws such as the Limitation Law and Public Officers Protection Act.
Before the pandemic, some countries were already conducting online hearing. Many more countries have adopted it since the pandemic. Unfortunately, this has not been adopted by any court in Nigeria. We, however, expect that several courts will consider moving some hearings online. Mr Malami, SAN has also advised the heads of court to adopt virtual hearings. Some courts may also accept electronic filing. This would surely be a huge leap by the courts.
We expect that there will still be some challenges on the application of the various measures that may be introduced. For example, an extension of time by a Practice Direction would only apply to the time stipulated by the court rules. There are other time stipulations by the Constitution of the Federal Republic of Nigeria that would require an amendment by two-thirds majority of the Houses of Assembly and the National Assembly. This may take months and even years to achieve. How the courts will treat those stipulations before an amendment of the Constitution is still unclear.