Judges Oppose Virtual Court Sitting, Say it’s Unconstitutional

•Senate introduces bill legalising virtual court proceedings

Tobi Soniyi

As the push for Nigeria to adopt virtual court sitting, especially in the wake of the lockdowns occasioned by COVID-19, gathers momentum, many judges are not convinced such practice is legal under the 1999 Constitution, as amended. Investigation by THISDAY reveals that many judges, particularly at the high court level and the Court of Appeal, are of the view that there are constitutional hurdles to cross before Nigeria can adopt a system of remote hearing of cases. They cite section 36 of the constitution, which provides that court proceedings, including delivery of court decisions, shall be held in public.

But the Senate on Tuesday considered a bill to amend the constitution to make virtual court proceedings constitutional. The bill, titled, “1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020 (SB. 418),” was sponsored by Senator Michael Opeyemi Bamidele.

Some of the judges who spoke with THISDAY on condition of anonymity expressed reservations about the adoption of the digital platforms of hearing cases. They reasoned that cases heard and determined under such arrangement were most likely to be set aside by the Supreme Court on the ground that such hearings did not meet the constitutional thresholds for determining cases.

Moreover, lawyers are feeling frustrated that the lockdowns have denied them the opportunity to practise their trade. Many cases, including those involving human rights violations, could not be filed as a result of the lockdowns.

Although the Chief Justice of Nigeria, Justice Tanko Muhammad, had directed that cases that were time bound and urgent be heard, lawyers could not leave their houses because of lockdowns imposed by states.

To ensure that the justice system was not grounded to a total halt, some senior lawyers had written to the CJN to consider adoption of remote court sitting.
In one of such letters, the Justice Reform Project, in a letter dated April 14, 2020, urged the CJN “to consider issuing immediate Court Directions and Protocols to ensure the continued administration of justice in the face of the pandemic.”

The JRP said it took the view that “this situation provides a unique opportunity for a considerable improvement of the administration of justice system in Nigeria and recommends that Your Lordship considers the adoption of remote court hearings to ensure the continued administration of justice in the face of the pandemic and an improved dispensation thereafter.”

The group in the letter signed by the Chairman, Governing Board, Mrs Olufunke Adekoya (SAN), and Convener, Charles Adeyemi Candide-Johnson (SAN), said, “The judiciary in several countries, including the United Kingdom, the Republic of Kenya and Uganda have exploited legal, financial and technological resources to ensure hearings can be conducted remotely despite the movement restrictions in place. On 3rd April 2020, a Justice of the Kenyan Court of Appeal reportedly delivered 57 rulings and judgments using inexpensive online video conferencing platform, Zoom.”

JRP argued, “Nigerian Judiciary can adopt this available, simple and inexpensive technology as has been done in other jurisdictions pending the installation of more permanent court infrastructure. In essence, we recommend the deployment of technology in two stages, an immediate temporary deployment using the simple and inexpensive measures recommended herein and a more permanent technological upgrade to be set out by a more elaborate process.”

Last Monday, a leading law chamber in Nigeria, Wole Olanipekun & Co., held a webinar titled, “Legal and infrastructural considerations for remote court proceedings in Nigeria,” which was attended virtually by the CJN, Acting President, Court of Appeal, Justice Monica Dongban-Mensem, and several other jurists and policy influencers in the justice sector.

Similarly, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN) and the National Judicial Council headed by the CJN have both announced separate plans for Nigerian courts to resort to virtual proceedings during and after the COVID-19 pandemic.

Interestingly, Lagos State had on March 4, 2020 adopted the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice,” which would ensure the hearing and determination of urgent and time-bound cases through digital platforms like Zoom, Skype or any other video and audio conferencing platform approved by the court.

Few cases had been heard in the state using the Practice Direction. Other states are working behind the scenes to adopt a similar practice direction.
However, some of the judges who spoke with THISDAY expressed reservations about the digital approach, citing constitutional hurdles.

The Hurdles

Section 36 (3) and (4) of the Constitution provide as follows:
“(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.

(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal…”
Citing cases already decided by the Supreme Court, the judges argued that the requirement for public hearing and determination of cases in Nigeria is mandatory as the operative word is “shall”, which means that it is compulsory.

“If you look at the authorities, I’m not sure hearing through Zoom or Skype will amount to public hearing,” one of the judges said.
The authorities appear to support the position of the judges. For instance, the Supreme Court, in the case of Edibo v. the State (2007) 13 NWLR (Pt. 1051) p. 306, set aside the conviction and sentence of the appellant and others who were charged with culpable homicide punishable by death on the ground that it was unconstitutional for the trial judge to have taken their pleas in his chambers.

The apex court held that the judge’s chambers were not a public place.
The question many judges are asking is, will a court hearing held through Zoom or Skype be considered to have been held in a public place? The judges who spoke with THISDAY answered in the negative.
To strengthen their argument, they further cited the tendency of the apex court to be illiberal and inflexible in interpretation of the constitution.

Another judge volunteered, “I’m not against adoption of virtual sitting, but we need to first, hold a conversation on whether certain provisions of the constitution should not be amended to accommodate these gadgets. Otherwise, it will amount to a waste of resources for a case to be decided using these means only for the Supreme Court to set aside the judgement and order a fresh trial.”

He made reference to a recent Supreme Court judgement setting aside the trial, conviction and sentence of a former Abia State governor, Orji Kalu, on the ground that the trial judge, having been elevated to the Court of Appeal, lacked the power to continue with the trial as a judge of the high court.

Based on the judges’ concerns, THISDAY dug further and found that the concerns were not baseless. The authorities support the view that virtual hearing of cases may not pass the constitutional test of public hearing. From the authorities, the Supreme Court had interpreted public place to mean an open place, which is accessible to everyone without hindrance of any sort.
Since many Nigerians don’t have access to smartphones and data, they may not be able to access virtual court proceedings. This is another reason virtual court may offend the provisions of the constitution.

When a trial judge sat in his chamber to deliver judgement in the case of Nigeria-Arab Bank Limited v. Barri Engineering Nig. Ltd. (1995) 8 NWLR (Pt. 413) 257, the Supreme Court set aside the judgement, holding that the delivery of the judgement in the judge’s chamber was an irregularity, which bordered on the legality of the whole proceedings.

The judges also dismiss the suggestion that this anomaly can be cured by heads of court through the issuance of practice directions.
According to them, the powers of a head of court to issue practice direction is circumscribed by the constitution. A head of court cannot issue a practice direction that overrides or expands the constitution.

Where the constitution has covered the field as to the law governing any conduct, the provision of the constitution is authoritative statement of the law on the subject. The case of AG Ogun State v AG Federation (1982) NSCC.1. is authority for this assertion.

Since the constitution has declared that cases must be heard in public, no head of court has power to declare otherwise. The constitution will have to be amended to accommodate other circumstances.
“Since Section 36 (3) and (4) of the constitution have expressly stipulated that the proceedings of court (including the announcement of its decisions) shall be held in public, this clearly and automatically excludes any other implied forum for holding or conducting court proceedings, including a virtual forum,” another judge stated.

In the cases cited above, the Supreme Court rejected the argument that since no miscarriage of justice was occasioned by not holding the trial in public, the judgement should be allowed to stand.

Hope, as Senate Introduces Bill Legalising Virtual Court Proceedings

Help appears to be on the way to allay the fear of judges as the Senate on Tuesday considered a bill to amend the constitution to make virtual court proceedings constitutional. The bill, titled, “1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020 (SB. 418),” was sponsored by Senator Michael Opeyemi Bamidele.

The bill aims at ensuring the much-needed corresponding amendment of relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, in giving legal teeth to virtual court proceedings.
Key provisions of the bill, as contained in the draft copy, include Section 36 (3), which states, “This section is hereby amended by the addition of the following:

“Provided that nothing in this subsection 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 or yet to be developed.

“Section 36 subsection (4) is hereby amended by addition of sub-paragraph (c) as follows: (c) nothing in the foregoing paragraphs 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 or yet to be developed.

“Section 36 subsection (12) is hereby amended by addition of the following subsection (13): In this section, ‘remote hearing’ means proceedings or hearing of court conducted via Zoom, Skype, WhatsApp video or any other social media platform or technological innovation.”