Virtual Proceedings, Not Unconstitutional, Falana Argues

Tobi Soniyi

Lagos lawyer, Mr Femi Falana, (SAN) has said that provisions of the 1999 constitution (as amended) can accommodate virtual proceedings.

Falana, in a statement, he sent to THISDAY, allayed the fears of some judges and lawyers who have expressed reservations with the plan to go virtual in the face of Covid-19 which has forced courts nationwide to stop sitting.

He noted that before the coronavirus pandemic, the rules of procedure and practice directions issued by heads of courts had provided for e-filing and e-service of processes.

According to him, it has become mandatory for counsel to furnish the courts with their emails and telephone numbers.

He said: “Thus, hearing notices are served on lawyers and parties by emails or wassap. Such service was given judicial endorsement in C.M.& E.S LTD v. PAZAN SERVICES NIG LTD (2020) 1 NWLR (Pt 1704) 70 @ 95 where the Supreme Court (per Okoro JSC) held that ‘In the instant appeal, there is evidence that a text message was sent by the registry of the Court to the GSM numbers provided by counsel to both parties informing them that the matter had been adjourned to 15th March, 2016. I hold the view that at this age of prevalence of information technology, the service of hearing notice through text message by the registrar of court is good and sufficient.'”

Falana contended that judicial proceedings by zoom or skype did not violate section 36 (3) and (4) of the 1999 Constitution which provides for public trial in civil and criminal proceedings.

He said: “With respect, section 36 (4) (a) of the Constitution provides that the right to public hearing may be waived in the interest of defence, public safety, public order, public morality, the interest of the welfare of a child under 18 years of age, the protection of the private lives of the parties or to such extent as may be necessary by reason of special circumstances in which publicity would be contrary to the interest of justice.

“Section 36 (4) (b) thereof also states that a minister of the federal government or commissioner of a state government may apply to a court giving reasons while public trial should be waived.”

He also drew attention to section 34 (a) of the Terrorism (Prevention) Amendment Act 2013 which states that “An application to protect a witness may be made by the court court suo motu or by the Attorney-General of the Federation or other relevant law enforcement or security agencies.”

He also cited section 232 of the Administration of Criminal Justice Act which provides that “A trial for the offences referred to in subsection (4) of this section may not, where the court so determines, be held in an open court.”

The provision applies to offences under the Terrorism (Prevention) Amendment Act 2013; Economic and Financial Crimes Act; Trafficking in Persons and related Offences Act and any other offence in respect of which the National Assembly permits the use of such protective measures or as the judge may consider appropriate in the circumstances.

It is further provided that where the court deems it fit to protect the identity of the victim or a witness the court may take any or all of the following measures: (a) receive evidence by video link; (b) permit the witness to be screened or masked; (c) receive written deposition of expert’s evidence; and any other measures that the court considers appropriate in the circumstances. The names, addresses, telephone numbers and identity of the victims of such offences or witnesses shall not be disclosed in any record or report of the proceedings and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets.

Falana said that there was no basis for lawyers and judges to fear that the Supreme Court of Nigeria might quash virtual proceedings because the National Judicial Council headed by the Chief Justice, the Honourable Justice Tanko Muhammad had enjoined Nigerian courts to conduct proceedings by zoom or skype.

“Apart from such directive the supreme courts of other common law countries are hearing appeals via video conferencing. As on May 1, 2020, the Supreme Court of India has recorded a total of 22 days of hearing with 116 benches sitting to hear cases. There were 43 benches for main matters and 73 benches for review petitions”, he added.

Falana stated that proceedings of a court should not be impugned if litigants and their counsel as well as members of the public were allowed to participate in them via zoom or skype.

He said: “As the Okoro JSC rightly observed Nigerian courts cannot but take cognisance of we are in an ‘age of prevalence of information technology’.

“However, to prevent the quashing of cases conducted via zoom or skype Senator Opeyemi Bamidele, the Chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters, has introduced a constitutional amendment to the Senate to empower judges to conduct virtual proceedings.

“Since the amendment will not be passed so soon Nigerian courts should continue to hear matters via zoom or skype or video conferencing.

“However, until necessary infrastructural facilities are put in place judges should resort to oral procedure for purpose of tendering documents in evidence and cross examination of witnesses.”