The Supreme Court said on Monday the holding of virtual sitting by courts in accordance with the practice directions issued by heads of Courts, is not unconstitutional at the moment.
A seven-man panel of the Court led by Justice Olabode Rhodes-Vivour, said the suits filed by Lagos and Ekiti states to seek the interpretation of the Constitution on whether or not virtual court proceedings/sitting is constitutional, are premature.
The Court said judges across the country should continue to conduct virtual proceedings where it is comfortable for them, until the National Assembly concludes its ongoing-effort to amend the Constitution to accommodate virtual proceedings.
The Supreme Court was of the view that 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.
While addressing the Court, Lagos Attorney General, Moyosore Onigbanjo (SAN), whose case was called first, argued that the suit by his state (marked: SC/CV/260/2020) was to prevent a situation where after virtual proceedings are conducted, they would be declared unconstitutional as it was in the Orji Kalu case.
In the Kalu case, the Supreme Court held the fiat given by the President of the Court of Appeal to the Justice of the Court of Appeal, who was elevated to the Appellate Court, to return to the Federal High Court to conclude the trial of Kalu and two others, was unconstitutional and proceeded to void the entire proceedings.
He said where the National Assembly seeks to insert into the Constitution the right to regulate court procedures by amending Section 36 and is not amending Section 274, will interfere with the powers of heads of courts to regulate court proceedings as contained in Section 274 of the Constitution.
Ekiti Attorney General, Olawale Fapohunda (SAN), whose case was later called, said the suit by his state (marked: SC/CV/261/2020) was to put certainty to the current uncertainty about the constitutionality or otherwise of virtual court siting
Fapohunda said judges in his state and others states are reluctant to sit and conduct virtual proceedings because they are afraid that their decisions and proceedings could be declared unconstitutional on appeal.
In his intervention, Justice Rhodes-Vivour said it was better that the applicants wait for the National Assembly to find out whether or not what it will come up with will go against the practice direction issued by Chief Judges of the states and the National Judicial Council (NJC) on virtual sitting.
Justice Rhodes-Vivour was of the view that it is after the National Assembly passes its pending Bill, seeking to include virtual sitting in the Constitution, anybody can challenge the constitutionality or otherwise of such an enactment and whether it violates the powers of heads of courts to regulate proceedings.
He said: “As at now, virtual siting is not unconstitutional. Honourable Attorney General (referring to Onigbajo), go and tell your Chief Judge to ask the judges to continue to sit virtually if it s convenient for them.”
Another member of the panel, Justice Dattijo Mohammed said there is not cause of action yet because no one has claimed that his right has 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.
On Fapohunda’ claim that judges were unwilling to sit, Justice Mohammed asked the Ekiti AG to report such judges to the NJC for appropriate penalties.
Justice Amina Augie (another member of the panel): “It is a fundamental law, we do not act on speculation. What you are doing now is speculative.”
Another member, 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.”
On his part, Justice Ejembi Eko said the suits are premature and speculative.
Justice Eko 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 set aside.
“We cannot say, at this stage, whether or not virtual sitting is constitutional,” Eko said.
In view of the opinions expressed by the Justices, to the effect that the suits are premature and that the directive on virtual court proceedings enjoy presumption of regularity, Onigbanjo and Fapohunda proceeded to withdraw their cases.
The seven-man panel then struck out the cases.
The Lagos State has argued that the constitutional amendment process being carried out by the National Assembly is threatening to disrupt the smooth running of the Judiciary in the state and the administration of justice on account of the uncertainty being created by the amendment process.
Lagos prayed the court for a declaration that the extant provisions in the Constitution, especially Sections 36 (3) and (4) are adequate to accommodate virtual or remote hearings of any kind whether by way of Zoom, Microsoft Teams, WhatsApp, Skype, or any other audiovisual or video-conference platform as provided for in the Practice Directions issued by the Chief Judge of Lagos State dated 4th and 15th May 2020”.
It also urged the court to declare that it is not within the legislative competence of the National Assembly or any other body, person or authority whatsoever to make laws or otherwise amend the Constitution for the regulation of the practice and procedure of the courts of Lagos State having regard to Section 274 of the Constitution” and “a declaration that the Bill presented before the 2nd defendant seeking to specifically include remote hearing in the Constitution constitutes a usurpation of the judicial function.
On its part, Ekiti prayed the court to determine whether the guidelines for virtual court sitting made by the Attorney General of the Federation (AGF) do not constitute a derogation from the legislative, executive and judicial law-making, law execution and adjudicatory rules making powers exclusively vested in states of the Federation in respect of states courts, by virtue of Sections 1(3), 4(6), 5(2), 6(2), 272 and 272 and 274 of the Constitution.
It also prayed the court to determine whether Lagos and Ogun states, having adopted virtual court hearings, pursuant to the lockdown, the three arms of Government in Ekiti State are bound to conduct their legislative, executive and judicial functions pertaining to adjudication in state courts in compliance with the directive upon which the National Judicial Council formulated the provisions of Articles E(1) to E(13) of its Guidelines (issued on May 7, 2020).
Ekiti prayed the court to nullify the directive by the Attorney General of the Federation (AGF) on the grounds that the said directive purports to be binding on state High Courts and other subordinate courts in Ekiti State is inconsistent with Section 1(3), 4(6), 5(2), 6(2), 36(3) and (4), 272 and 274 of the 1999 Constitution.