Nigeria: Supreme Court to Hear Suit On Constitutionality of Virtual Court Sitting

14 July 2020

The Supreme Court has fixed today for the hearing of the suit brought by the Attorney-General of Ekiti State, Olawale Fapohunda, against the Attorney-General of the Federation and Attorneys-General of Lagos and Ogun States respectively, on the 'legality or otherwise' of virtual court hearing.

In the suit brought pursuant to Order 3 rule 6, Supreme Court Rules (as amended in 1999), Section 232(1) of the 1999 constitution (as amended) and Sections 1(3), 36(3) and (4) of the 1999 Constitution (as amended), the Attorney-General of Ekiti State is asking the Supreme Court to determine whether the directive issued by the Attorney-General of the Federation vide its directive issued on April 20, 2020, to the heads of courts at federal and states level, in conjunction with the guidelines issued on May 7, 2020, by the National Judicial Council (NJC) specifically as it relates to the conduct of virtual proceedings in court is not only a violation of the federalism provisions of the 1999 Constitution but also in violation of the constitutional provisions on fair hearing specifically as it relates to the conduct of criminal trials in public.

The Ekiti State Attorney-General is also asking the Supreme Court to set aside or strike down parts of the said directive of the Attorney-General of the Federation and NJC guidelines, as they relate to virtual or remote court sittings to the extent that they purport to be binding on the Ekiti State High Court for being inconsistent with sections 1(3), 4(6), 5(2), 6(2), 36(3) and (4), 272 and 274 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The issue of the constitutionality or otherwise of remote or virtual court hearing has dominated the national discussion since the publication of the NJC guidelines which recommended virtual court proceedings for courts in response to the COVID-19 pandemic.

They reason that cases heard and determined under such an arrangement are most likely to be set aside by the Supreme Court on the ground that such hearings do not meet the constitutional thresholds for determining cases.

The judges cited section 36 of the constitution, which provides that court proceedings, including delivery of court decisions, shall be held in public.

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 am not sure hearing through Zoom or Skype will amount to public hearing," one of the judges said.

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