CONSTITUTIONALITY OF VIRTUAL COURT HEARINGS

INTRODUCTION

In the wake of the coronavirus pandemic (Covid-19), various non-essential sectors of the economy of most countries of the world went into a complete shutdown; from private sector organizations to banking, and even the judiciary. While many businesses have embraced the new normal of a digitally enabled business ecosystem in order to stay afloat, there has been mixed feelings on whether the judiciary in Nigeria should accept and adjust to the new reality of virtual operations.

This article attempts to examine the legality of the move by the Nigerian judiciary to adopt virtual hearings as the new normal, in line with the recent directives from the Chief Justice of Nigeria (CJN) to various heads of courts to commence virtual hearings of matters.

DISCOURSE ON VIRTUAL HEARING

In an attempt to curb the spread of the virus, the Federal Government of Nigeria (FGN) and some State Governments have issued directives restricting movement and limiting social gatherings to a certain number of persons. Following this directive and the issuance of the NJC Guidelines on Virtual hearing, the Chief Judge of Lagos State signed the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice Direction” (the “Practice Direction”) in May 2020. The essence of the Practice Direction is to ensure the hearing and determination of urgent and time-bound cases using digital platforms like Zoom, Skype or any other video and audio conferencing platforms approved by the Court. This has sparked a lot of controversy amongst many legal minds, citing as unconstitutional the recent virtual court sitting held in Lagos whereat the Honourable Justice Mojisola Dada of the Ikeja judicial division delivered a judgment against an accused person. Their objection rest on the stance that a virtual hearing does not qualify as public hearing under Section 36 (1), (3), and (4) of the Constitution.

The purport of Section 36 (1), (3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is to the effect that every person shall be entitled to a fair hearing within a reasonable time for the purpose of determining a right and obligation accruing to any such person, and that such hearing must be held in public. It is safe to say that it is on this premise that the heads of court have thought it wise to implement practice directions on virtual court sittings to see to it that justice is not unduly delayed.

What flows from a community reading of Section 36 (3) & (4) is that a Court or tribunal must, in determining the civil rights and criminal liability of a person, conduct its proceedings and pronounce its decisions in public.

The issue that has continued to arise from these provisions, as seen in a plethora of cases[1] in times past, and has recently received widespread commentary as a result of the new NJC guidelines and practice directions on virtual court hearings, is whether the internet (Virtual space) is a “public” place within the contemplation of the Constitution. Whereas the constitution is silent as to the interpretation and meaning of the word “public”, common usage of the word connotes a place that is “not private”; or open to the people as a whole.

It is important to note that the term “public” as contemplated by the constitution is not limited to only formal courtroom settings, so long as it is a place easily accessible to the public.  Reference can be made to Fidelis Nwadialo’s authoritative civil litigation text[2] where the learned author stated that “hearing in public entails a situation where the public is not barred… A trial is sufficiently public if members of the public may have access to where it is taking place. The actual presence of the public is, however, not necessary.”

One of the principles of fair hearing is that court proceedings be held in public and the parties be informed or notified of the dates and have free access to the venue of the hearing. See the case of Gitto Construction Generali Nigeria Limited & Anor v. Etuk & Anor.[3]  Flowing from this, a virtual court hearing is not a private hearing since it is open to Counsel, Litigants and the general public at large, as though it were held in the open court. Provided that parties are notified of the hearing and allowed access to the venue and the proceedings are conducted in accordance with all legal rules formulated to the end that justice is done, it does not offend any constitutional provisions. Also, virtual hearings do not equate to hearing in a judge’s chambers as a judge’s chambers is not easily accessible to the public without the consent of the judge having been first sought and obtained.[4]

Whereas it is arguable that most virtual platforms are restrictive on the number of participants it may admit at a time, this is not far from the reality with the usual courtroom settings where the courtrooms are very small and packed full with counsel and litigants. Most times in regular courtrooms, lawyers and litigants have to stand outside the courtrooms by the corridors until their matters are called up or until other lawyers and litigants conclude with their matters and leave the court room. But as bad as this situation has been over the years, lawyers and litigants still find a way around it. Though Virtual hearings are not without their fair share of challenges, the focal point should be finding a way around these challenges to ensure that justice is not only done, but manifestly seen to have been done.

It is pertinent to restate the trite position of law that heads of courts in Nigeria have been constitutionally empowered by Section 274 of the Constitution to and can validly make Practice Directions for the creation and regulation of court proceedings. See the case of Onwudinjo v. State[5].

Having so established, the Chief Judge of Lagos was well within the ambit of the law when he issued the said practice direction.As it were, the only aspect that may pose a form of difficulty would be as regards arraignment, taking of evidence, tendering of documents, cross-examination and generally the conduct of criminal proceedings as provided under Section 36 (6) of the Constitution. That notwithstanding, provided all that is done in the course of the proceedings do not contravene the provisions of the law in this regard, the virtual hearing would be valid. The mere fact that it is conducted virtually will not invalidate such proceedings.

A practical guide to solving the issues above may be to adopt the frontloading procedure obtainable in civil proceedings. The court may receive written depositions of witnesses; experts, accused (sworn before a commissioner for oaths) to reduce incidences of forced statement, as well as any other witness that may be called upon. Documents may be uploaded before the time of hearing and/or tendering, to allow the other side raise objections, the court can even call for written addresses of counsel to determine the admissibility or otherwise of a document.

In India for instance, the procedure on taking of evidence via video conferencing is subject to consent by parties and in the absence of consent the court can suo motu order same. However, in exercising its discretion, the court would usually take into consideration, amongst other things: the effect of the telephone or video conference on the court’s ability to make findings, including determination of the issues in the case and the importance in the circumstances of the case for the court to observe the demeanor of a witness[6].

Prior to the directive on virtual hearings, Section 232(4)[7] of the Administration of Criminal Act 2015 provides for instances where certain criminal trials may not be conducted in open courts. In any of the instances covered under the said provision, 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.  These can also be adopted for other virtual criminal hearings.

The introduction of Virtual Court Proceedings is not peculiar to Nigeria. In the United States, the Supreme Court on the hearing of the subpoena of President Trump’s financial records, heard argument of counsel on telephone for over 3 hours.Another relevant case is the recent UK case of National Bank of Kazakhstan v The Bank of New York Mellon & Ors.[8] which proceeded as a fully virtual trial, with parties, experts and witnesses from England, Kazakhstan, the Unites States, and Belgium. The Judge commented that “the hearing was conducted without any technical hitch”. One could not agree more with one of the counsel who concluded that the case “led the way in ensuring the continued administration of justice and demonstrating that many perceived technological or other difficulties in holding a virtual trial are not insurmountable”[9].

CONCLUSION:

It is the submitted that proceedings conducted virtually are not private hearings, and qualify as “public” within the contemplation of the Constitution. However, whether or not a place is a public place within the context of Section 36 (1) and (3) of the 1999 Constitution is a question of fact and a matter of interpretation over which the Supreme Court is the final arbiter. It is laudable that in erring on the side of caution, the Senate of the National Assembly has introduced a Constitution alteration bill[10] seeking to clearly validate virtual court sittings. If this is done, the whole controversy and uncertainty surrounding virtual court sittings will be laid to rest.

written by Sarah Harold-Uku

REFERENCE

[1] Asani Kosebinu v. Misiri Alimi & Ors (2014) LPELR–11442(CA); Oyeyipo v. Oyeyipo(1987) 1NWLR (Pt. 50) 356 @377
[2] Civil Procedure in Nigeria, 2nd Edition, page 674
[3] (2013) LPELR-20817(CA)
[4]  Simon Edobi v. State (2007) LPELR-1072(SC)
[5] (2014) LPELR-24061(CA)
[6] https://www.loc.gov/law/help/virtual-civil-trials/virtual-civil-trials.pdf
[7] The provision applies to offences under the Terrorism (Prevention)Amendment Act 2013; EFCC Act; Trafficking in Persons and Related Offences Act, etc.
[8] [2020] EWHC 916 (Comm)
[9]https://www.stewartslaw.com/news/national-bank-of-kazakhstan-virtual-trial-success-in-handed-down-judgment/
[10]https://www.premiumtimesng.com/news/headlines/39249-nigeria-senate-introduces-bill-to-legalise-virtual-court-proceedings. May 12, 2020d

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