Virtual Court Sitting Not Unconstitutional, Supreme Court Rules

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The Supreme Court yesterday held that there was nothing at the moment that makes virtual proceedings and sitting by courts in the country null, void and unconstitutional.

The apex court also dismissed a suit by a former Peoples Democratic Party (PDP) governorship aspirant in Bayelsa State, Mr. Timi Alaibe, challenging the emergence of Governor Douye Diri as the candidate of the PDP in the November 2019 governorship election in the state.

A seven-man panel of the apex court led by Justice Bode Rhodes-Vivour held that it was premature for Lagos and Ekiti States to file suits to seek their interpretation of the constitution to determine whether or not virtual court proceedings and sitting are constitutional.

The court directed judges nationwide to continue to conduct virtual proceedings, where comfortable for them, until the National Assembly concludes its ongoing efforts to amend the constitution to accommodate virtual hearing.

It said, for now, it was premature to challenge the constitutionality or otherwise of virtual court proceedings because the National Assembly was still in the process of amending the constitution or enact a law to that effect.

The two suits were filed by the Lagos and Ekiti State governments, praying the Supreme Court to determine whether having regard to Section 36(1), (3) and (4) of the 1999 Constitution (as amended), the use of technology by remote hearings of any kind, whether by Zoom, Microsoft Teams, WhatsApp, Skype or any other audiovisual or video-conference platform by the Lagos State High Court or any other courts in Nigeria in aid of hearing and determination of cases is constitutional.

While addressing the court, Attorney-General of Lagos State, Mr. Moyosore Onigbanjo (SAN), whose case was called first, argued that the case by his state was to prevent a situation where, after virtual sittings are conducted, they would be declared unconstitutional as in the case of a former Abia State Governor, Senator Orji Uzor Kalu.

Kalu, who is now Senate deputy chief whip was serving a 12-year jail term before the Supreme Court quashed his trial and subsequent conviction on the ground that Justice Mohammed Idris of the Federal High Court, sitting in Lagos, which convicted and sentenced Kalu and Ude Udeogu, who was the director of finance and accounts at the Abia State Government House during Kalu’s tenure, was already a justice of the Court of Appeal as at the time he delivered the judgment sentencing the appellants.

The Attorney-General of Ekiti State, Mr. Olawale Fapohunda (SAN), whose case was later called, said the suit by his state was to put certainty to the current uncertainty about the constitutionality or otherwise of the virtual court sitting.

Fapohunda said judges in his state were reluctant to sit and conduct virtual proceedings because they were afraid that their decisions and proceedings could be declared unconstitutional on appeal.
But Justice Rhodes-Vivour advised the two states to patiently await the bill on the amendment to the constitution still pending at the National Assembly on the issue.

He said it was after the National Assembly had passed the bill seeking to include virtual sitting in the constitution that anybody could challenge the constitutionality or otherwise of such an enactment.
He said: “Just let us wait for the National Assembly whether what they will come up with goes against the practice direction issued by chief judges of the states and the National Judicial Council (NJC) on virtual sitting.

“As at now, virtual sitting is not unconstitutional; Honourable Attorney-General (referring to Onigbanjo), go and tell your chief judge to ask the judges to continue to sit virtually if it is convenient for them.”
Another member of the panel, Justice Dattijo Mohammed, said there was no cause of action yet because no one had claimed that his right had been breached.

“Somebody’s right must be breached by what the National Assembly is able to come up with before you can come to court,” Justice Mohammed said.
Justice Amina Augie, another member of the panel, said: “It is a fundamental law; we do not act on speculation. What you are doing now is speculative.”

Justice Olukayode Ariwoola said: “Why don’t you wait for the National Assembly to come up with what they are doing, then you can come and challenge it if you are not comfortable?
“You have a choice either to ask that your matter be adjourned sine die until after the National Assembly passes its law or you withdraw your case.”

Corroborating the submissions of his learned brothers, Justice Ejembi Eko, said the suits were premature and speculative.
He said by virtue of the provision of Section 168(1) of the Evidence Act, the practice directions by courts’ heads on virtual proceedings enjoy the presumption of regularity until they are set aside.

“We cannot say, at this stage, whether or not virtual sitting is constitutional,” Justice Eko said.
In view of the position expressed by the justices, to the effect that the suits are premature and that the directive on virtual court proceedings enjoys the presumption of regularity, Onigbanjo and Fapohunda withdrew their cases.
Consequently, the seven-man panel unanimously struck out the suits.

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