WD
IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE E. D.
SUBILIM
DATE: 5TH
JUNE, 2025
SUIT NO: NICN/ABJ/314/2024
BETWEEN:
Okafor
Chidi Justin …………...…...…… Claimant/Respondent
AND
1.
2.
Abdulkadir Ahmed
3.
Hambali Yusuf Defendant/Applicants
4.
Henry Unuakpor
5.
Abiodun Laleye
6.
Olayiwola Mutiu
REPRESENTATION:
Elizabeth Akinniyi, Esq., for
Claimant/Respondent
F. O. Salawu, Esq., for Defendants/Applicants
RULING
1.
The Claimant/Applicant
herein by a Motion on notice dated 2nd of December 2024 and filed on
the same date, pursuant to Order 17 of the National Industrial Court of Nigeria
(Civil Procedure) Rules, 2017 and under the inherent jurisdiction of this
court, seeks for an order(s):
a. For leave of the Honourable Court
allowing the Claimant/Applicant to be examined and cross examined by virtual
means via Zoom, Ms Teams or other online internet platforms.
b. And any other order or orders as this
honourable court may deem fit to make in the circumstances.
2.
The
said Application is supported by a five paragraphs affidavits deposed to by
Abah Patience a litigation clerk in the law office of counsel to the Claimant/Applicant.
Accompanying the Motion is a Written Address filed in line with the Rules of
this Court.
3.
Upon
receipt of the instant application, the Defendants/Respondents on 20th
January, 2025, filed a Counter-Affidavit of seventeen (17) paragraphs deposed
to by the 4th Respondent who is the Human Resource and Crewing
Manager of the 1st Defendant representing the Defendants/Respondents
and a written Address alongside.
SUBMISSION OF THE CLAIMANT/APPLICANT
COUNSEL
4.
The
Applicant’s Counsel in his Written Address raised a sole issue for
determination by this Court to wit;
Whether
the court ought to grant the relief sought by the Applicant?
5.
On this
issue, Applicant’s counsel submitted that virtual hearing, is contemplated by
the Nigeria laws as seen in the practice directions passed by several courts. It
is also constitutional and legal to hold a virtual court hearing specifically
in as much as it made it accessible, being in compliance with section 36(3), (4) of the 1999 Constitution
and the case of Onochie v Odogwu (2006) 6 NWLR (PT. 975) where the court reasoned that the requirement
of public hearing is mandatory.
6.
Going
further, the Applicant Counsel submitted that it is within the discretion of
the court where the concept of virtual hearing is a new and recent development
to permit parties to employ the evolving trend of litigants conducting their
case by virtual (technology) provided etiquettes sacrosanct guiding principle
of the law are obeyed and suits are efficaciously determined and without undue
delay.
7.
Applicant
counsel submitted that it is a settled law that the exercise of discretion may either be judicial or judicious. It
is judicially exercised in accordance with the enabling statutes; and judicious
when it carries or conveys the intellectual wisdom of the judge as Judex. Judicial
discretion is the exercise of judgment by a court based on what is fair under
the circumstance and guided by the rules and principles of law which must be
based on prudence, rationality, sagacity astuteness considerateness and
reasonableness. Counsel cited the cases of
Akinyemi v Odu’a Investment Co Ltd (2012) 17 NWLR PT. 1329 P 609;
University of Lagos v Aigoro(1985) 1 NWLR 1 VP143; and Onourah v Okafor (1983)
2 SCNLR 244. In conclusion
Applicant counsel urge the court to take cognizance of the above submission and
grant this application.
SUBMISSION OF THE DEFENDANTS/
RESPONDENTS COUNSEL
8.
In
their written address in opposition to the Motion filed by the Applicant
seeking for leave of the Honourable Court allowing the Claimant/Applicant to be
examined and cross examined by virtual means via Zoom, Ms Teams or other online
internet platforms, raised a sole issue for consideration to wit:
Whether
it is in the interest of justice for the applicant’s application to be granted?
9.
On this
issue, learned counsel submitted that the reason that necessitated this
application is that the Applicant is in Canada for an MBA course. The applicant
had also argued in his written address that the Practice Direction of this Court
made pursuant to circular NO. NJC/CIR/HOC/11/656 of the National Judicial
Council (NJC) contemplate virtual court proceedings. It is important to clarify at this juncture
that the Applicant relied on a wrong circular of the NJC. The circular of the
NJC which the guidelines of this court was made pursuant to, is the circular
NO. NJC/CIR/HOC//11/660. Counsel argued that this instant application is
blatantly marred with infractions that highly over reached the Respondents and
as such, ought to be dismissed.
10.
From
the foregoing, learned counsel also submitted that claimant argument in his
written address is that virtual hearing is contemplated by Nigerian laws. The
applicant seemingly premised this argument on the National Industrial Court Of Nigeria
Practice Direction and Guidelines Before Court Sitting 2020 which derives its
authority from NJC and it is apposite to note that the said guidelines and
their positions are inapplicable in the circumstances of this case because the
said guidelines were specifically made to curtail the suspension of court
activities during the covid-19 pandemic when movement was restricted across the
world. It is also the submission of the
respondent claimant counsel that the guidelines are clear to the effect that
they regulate court activities during the Covid 19 pandemic not that they would
be applicable in perpetuity. Counsel argued that it is strange that applicant
is relying on an academic law as the basis for the grant of this application
and the applicant has failed to provide any extant law, regulations or rules of
court that makes’ provision for virtual hearing other than the NJC guidelines
which are clearly inapplicable in this case.
11.
Respondent
counsel submitted that virtual court sittings should be promoted and encouraged
by court and counsel and the court should insist on such remote hearing for
matters that did not require taking any evidence. All judgements, rulings, and directions may be
delivered and handed down by the courts in and through remote court sittings.
However for extremely urgent and time bound matters, contentious matters that
require the calling of evidence in a physical courtroom setting should not be
called up by the court at this time. And it is of importance to note that the
drafters of the guidelines recognized that taking evidence in an open court is
so sacrosanct, that they did not even make provision for taking of evidence
virtually in contentious matters that are extremely urgent and time bound,
rather they made it that such matters must still be heard in an open court
provided they pass the urgent and time bound test. Flowing from the above,
Counsel urges the court to dismiss the strange application which is clearly not
rooted in any statutory or judicial authority. That the applicant written
address attempted to justify the grant of the application by relying on
judicial authorities that only serve to contradict the applicant application
for leave to give evidence by virtual means. Specifically the case of Onochie
v. Odogwu (2006) 6 NWLR (PT. 975) 65 which was relied on by the applicant
is not only misleading but radically different from what the applicant is
seeking by this application, and that the applicant has failed to satisfy the
conditions for the grant of such application.
12.
Learned
counsel submitted that the law is trite that an application which requires the
court to exercise its discretion, such discretion must be exercised judicially
and judiciously in the interest of justice and counsel cited the case of A. Manuf.
Ind (Nig) Ltd v. Akinyode (2000) 13 NWLR (Pt. 685) 576 @ 588 paragraph G-H. And similarly in
the case of N.H.D.I.P Ltd v Folarin (1992)5 NWLR (PT.239)54@65-66 paragraph-A.H.
It is also the submission of counsel that the applicant has gone to Canada for
his MBA course. Counsel submitted that the reason is frivolous, flippant, vexatious,
irrational and incomprehensible to say the least and that Claimant is making
mockery of the justice system especially the court. This is because the Applicant’s
affidavit if considered tenable would mean that there would be no need for any
witness to give evidence in court if also the respondent witness also does not
appear in court to give evidence simply because he is based in Port Harcourt or
too busy with his work.
13.
Counsel
submitted that Applicant made a conscious effort to institute this suit against
the respondent then proceed to Canada on an MBA course; that the Applicant personal
choice should not be allowed to preserve and disrupt the course of justice. Therefore,
counsel argued that the Applicant cannot eat his cake and have it. Considering
the above, respondent submits that the Applicant has failed to sufficiently
establish with credible facts and evidence the reason he should be granted
leave to give evidence virtually.
14.
Counsel
further submitted that it is trite that physical appearance of a witness in court is the gold standard and
pillar in civil litigation as it allows the court to study the demeanour of the
witness and form its own opinion as well as allows the other party to be able
to effectively test the veracity of the witness testimony. The only exception a
court might do away with the physical testimony of a witness and with virtual
hearing is if there is a testimony such as unforeseen medical condition.
15.
Counsel
also submitted that Applicant has not shown that he is a bona fide post
graduate student of a university in Canada; a manifestation on how casually he is
treating the application. Counsel argued that Applicant is not saying that he
is writing an examination and is unable to be physically available nor any of these
matters. Counsel cited the case of Nzekwu v Nzekwu (1989)2 NWLR (PT104) 373 @
393 paragraph E where the court emphasise the importance of a physical testimony
of a witness and demeanour in the conduct of trial.
16.
Ancillary
to the above, the applicant is also seeking inter-alia) the sum of $100,000,000(one
hundred million US dollars) only as general damages for the breach of standard
employment provisions, refusal to follow due procedure, human rights violation
against the defendant and then attempt to avoid giving physical testimony on
the basis that the Applicant is pursuing an MBA course in Canada a totally
self-imposed and not unforeseen reason.
17.
Finally,
counsel submitted that the grant of this application will hinder a level
playing ground for the respondent as the applicant will be more advantaged than
the respondent. Indeed, the unfair advantaged of the applicant in the event
this application is granted goes to the root of the proceedings of this court
including any subsequent orders /ruling therein. Counsel cited the case of Adigun
v A. G Oyo State (1987) 1 NWLR (pt. 53) 678 and A.G Rivers state v Ude (2006)
17 NWLR (pt. 1008) 436. In conclusion, the respondents has by their
written address demonstrated that the Applicant is not entitled to the reliefs
sought and this court ought not to exercise its discretion in favour of the Applicant
and urge the court to dismiss this application for the overall interest of
justice
COURT DECISION
18.
I have read through the processes filed by the
parties and considered the authorities relied upon by each party in
consideration of the issues raised with regard to the instant application. This
court however distils a sole issue for determination thus;
“Whether the Claimant/Applicant
application has any merit to warrant this court granting same
19.
The facts of this case as can be gleaned from
the affidavit in support of the Motion on Notice is that the claimant is
seeking the leave of this court to attend court virtually for the reason that
he will be unable to attend physically as he is in Canada for an MBA course. It
is the case of the Applicant that securing Applicant to come down for the
purpose of giving evidence physically in the court room will definitely require
commitments, lots of money and time which may directly or indirectly affects
his program. The Respondents contended that the facts available to this court
did not disclose any justifiable reason for the grant of the reliefs sought.
Respondents argued that granting the Motion will jeopardise their interest as
it will rob the respondents the opportunity to ascertained the demeanour of the
Applicant as a witness; it will be inconvenient and prejudicial to the
Respondents; and that it has never been contemplated by the Rules of this court.
20.
I must say that the constitutionality of
virtual or remote sittings in this court has been a subject of discussion,
particularly after the COVID-19 pandemic which necessitated the adoption of
technology in our justice delivery system. The question whether virtual hearing
introduced in this Court, through its Practice Directions and Guidelines for
Court Sitting, 2020, is unconstitutional therefore easily comes to the
fore.
For a good appreciation of the issue
formulated, we need to understand what is a virtual hearing in the context of
our court system. The concept of virtual hearing is neither defined in the 1999
Constitution nor the Practice Directions and Guidelines for Court Sitting,
2020 issued by the President of this Court. However, to my mind a virtual
hearing can be explained to be a court hearing or proceedings conducted by
video or audio-visual devices. It is variously referred to as ‘remote court
sitting’, ‘virtual court sitting’ or ‘online court sitting’ in the Practice
Direction of this court.
21.
However, the issue that has thrown up debate
today among jurist and legal luminaries is whether virtual hearing does qualify
as public hearing under section 36 (3) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended)? For ease of reference let me reproduce
the relevant constitutional provision under consideration as it provide thus:
“3. the proceedings of a court or the
proceedings of any tribunal relating to the matters mentioned in subsection (1)
of this section (including the announcement of the decisions of the court or
tribunal) shall be held in public.
22.
What I
believe seems to be the major challenge posed by section 36 (3) of the Constitution is that it failed to define the
word “public”. However, in my study I have discovered that Fidelis Nwadialo in
his book, Civil Procedure in Nigeria, 2nd Edition, at page 674 attempted
to describe the word “hearing in public” as entailing a situation where the
public is not barred.” And went on to state that a trial is sufficiently public
if members of the public may have access to where it is taking place. According
to this writer the actual presence of the public is, however, not necessary.
23.
Also, in
his article published sometime in May, 2020 in Techpoint Africa Newsletter,
one Timi Olagunju, Esq., a technology lawyer and policy consultant articulated
his view and argued that the requirement of Section 36 (3) that ‘court
proceedings’ and ‘decisions’ should be in public, means that the word ‘public’
is not synonymous with ‘physical’. He argued that both words are mutually
exclusive.
24.
In
considering a similar provision under the South African Constitution (Section
34 of the Constitution of South Africa) in the case of MK v Transnet Ltd t/a
Potner (Reported at
http://m.polity.org.za/article/video-conferencing-2020-03-16), the court
held that, “the hearing with the aid of a video link conference will be a
public hearing in a court of law, where all the parties will be appearing
before a Judge seized with the matter.”
25.
As a
court, I stop to ask this pertinent question at this stage: “If the framers of
the Constitution had themselves come across this controversy on the meaning of
the word ‘public’, how would they have interpreted it?” Lord Denning in his
book The Discipline of Law ask a similar question:
“a judge should ask himself the
question: If the makers of the Act had themselves come across this ruck in the
texture of it, how would they have straightened it out? He must then do as they
would have done. A judge must not alter the material of which it is woven, but
he can and should iron out the creases.”
26.
It will appear that the reason why the
Constitution enjoined court proceedings to be held in public is to allow the
public access court proceedings. Accessibility by the public to court
proceedings is therefore the crucial reason or factor why court proceedings are
held in public.
27.
A close look at the PD, it leaves one with the
strong impression that the requirement of accessibility to the proceedings of
this court has been met having allowed electronic access to its proceedings. A
community reading of Rule 1 (1) (3) and Rule 7 (5) of the National
Industrial Court of Nigeria Practice Directions and Guidelines for Court
Sitting, 2020 provides for virtual hearing. For the avoidance of doubt Rule
1 (1) of the NICN Practice Directions and Guidelines for Court Sitting, 2020
clearly in unambiguous terms provides that the objective of the PD is: “To
govern filing and hearing of matters during and after the coronavirus
(COVID-19) pandemic.” Considering the contention of the Respondents I
find it difficult to believe that the demeanour of a witness cannot be
ascertained virtually nor how virtual hearing will prejudice the Respondents.
The remote hearing is an open-ended or flexible platform that can be used by
parties before the court. The Respondents can also take advantage of it if they
so desire.
28.
I am surprise and taking aback to read the deposition
in paragraph 9 of the Respondents counter affidavit to the effect that “the
Rules of this Honourable Court do not provide or even contemplate virtual
hearing.” I cannot quarrel with the position of the Respondents that the NICN
Practice Directions and Guidelines for Court Sitting, 2020 was a child of
necessity brought about by the COVID-19 pandemic. However, the objectives of
the PD is to govern filing and hearing of matters during and after the
coronavirus. See Rule 1 (1) of the PD.
29.
I must say that this court is committed to
discharging its judicial duties and performing its functions in accordance with
the constitution and the law, in fair and impartial manner, including
adjudication of cases involving digital technologies, online expressions and
other digital freedoms, guided by applicable international best practices and standards.
I find the arguments and presumptions of Respondents as unfounded in law and
facts and is hereby discountenance.
30. To further buttress and show how
the PD have been integrated into the practice and procedure of this court, I
venture to take an excursion into the provisions of the PD which to my mind
seem to allow the public virtual access to NICN proceedings to include:
(a)
virtual hearing can be through video conferencing or any means permitted by the
court (NICN). See R. 7 (3)
(b)
notice of virtual hearing is written on the cause list and the Court’s website.
See R. 7 (6)
(c)
the court will ensure that virtual hearing is open to the public except
proceedings by ex parte application or required to be held in Chambers. See R.7(7)
(d)
the NICN is expected to publish for the public weekly the matters to be heard
virtually. See R. 7(11)
(e)
upon application by any of the parties to a case he can obtain a record of any
proceedings of the NICN held virtually. Also, a Counsel can be permitted upon
application to record proceedings to be held virtually. See R. 7 (12)
(f)
in order to ensure that the public have access to proceedings held virtually,
the NICN ensures live streaming through a web address or Uniform Resource
Location (“url”) of the NICN or other specified social media. See R. 7 (13) (a)
(g)The
NICN is required to publish the proceedings held virtually in the same manner
it publishes physical proceedings and to specify the web address where the
proceedings could be accessed. See R. 7 (13) (b).
31.To further support this position,
there are cases which seem to suggest that section 36 (3) of the Constitution
could be understood to include virtual hearing. The cases are the rulings of
the Supreme Court of Nigeria in the following two cases: Attorney General of
Lagos State v. Attorney General of the Federation & the National Assembly
Unreported suit no SC/CV/260/2020, which ruling was delivered by Hon.
Justice Rhodes-Vivour, JSC on the 14th of July 2020 and Attorney
General of Ekiti State v. Attorney General of the Federation & 2 others
Unreported suit no. SC/CV/261/2020, which ruling was also delivered by Hon.
Justice Rhodes-Vivour, JSC on the 14th of July 2020 regarding virtual hearing.
The Supreme Court in its wisdom ruled that virtual court hearings are not
unconstitutional. By this ruling the two suits were withdrawn. It can be argued
that though the pronouncement of the Supreme Court regarding virtual hearing is
a ruling and not a judgment, it is a pointer to what its judgment would be when
a matter regarding infringement of right concerning virtual hearing occurs
(that is when there is a substantive case before it).
32. I am not unmindful that Section
254C of the Constitution grants the NICN exclusive jurisdiction over labour and
employment matters. And the section on a purposive reading, one can see that it
implicitly allows the court to adopt innovative procedures to resolve disputes
efficiently, as long as such procedures do not violate our much-cherished
constitutional rights that are guaranteed. Not only this section 12 (2) (a) NIC
Act, 2006 provides that this court may regulate its proceedings as it thinks
fit. Also Order 1 Rule 4 of the Rules of this court provides for the objective
and intent of the Rules of this court to wit: to establish an enduring,
equitable, just, fair, speedy and efficient fast track case management system.
This did not only stop there as Order 1 Rule 9 (2) reiterated the fact that the
Rules of this court are to be applied by this court as it considers fit.
33.The NICN has consistently emphasized
efficiency and technological adaptation, aligning its procedures with global
best practices. The NICN has adopted virtual sittings to complement its
physical hearings, recognizing the benefits in terms of cost and time savings,
especially in labour disputes that require swift resolution provided they meet
the principles of justice, fairness, and accessibility.
34. I see nothing novel in the use of virtual hearing in this
suit. If order 36 Rules 33 of the NICN (Civil Procedure) Rules, 2017 allows
trial on record I believe virtual hearing is one hearing that should be encouraged.
I therefore find that the reliefs sought by claimant are devoid of elements
that will cause a miscarriage of justice in any way.
35.On the whole, for the reasons giving, I hold that the Motion
of the Claimant/Applicant praying this court for leave for the Applicant to be examined
and cross-examined virtually via Zoom, Ms Teams or other online internet
platforms is accordingly hereby granted. I so hold.
36. Ruling is hereby entered. There is no order as
to cost.
_______________________
Hon. Justice E. D.
SUBILIM
JUDGE