INTRODUCTION
The advent of Covid-19 has dealt a global punch on all facets of
human endeavours and activities. In the uniqueness of man,
alternative measures have emerged and are embraced in different
walks of life to mitigate the attendant harsh socio-economic
effects of Covid-19. There is a surge in the use of internet and
various virtual platforms to carry out the normal day-to-day
activities.
The judicial system a fortiori the courts, are equally affected
as they have been closed in order to contain the spread of
Covid-19. Out of sheer ingenuity and the need to attend to urgent
and fundamental court cases, there are widespread euphoric reports
of courts adopting the use of modern technology to observe virtual
proceedings through media like Skype, Zoom, Google Meet, Microsoft
Team amongst others in various parts of the word, Nigeria
inclusive.
As innovative as these developments are, there is a critical
importance to measure these new introductions into the judicial
cycle in Nigeria on the constitutional scale of our fons et origo –
the Constitution of the Federal Republic of Nigeria, 1999 as
amended; (hereafter called 1999 Constitution).
SUPREMACY OF THE 1999 CONSTITUTION
The 1999 Constitution is widely believed to be the organic and
fundamental law of Nigeria. This means that it is the law from
which all other laws emanate and derive their legitimacy and
validity. In this wise, it is accordingly enshrined in S. 1 (1) of
the 1999 Constitution as follows: “This Constitution is supreme and
its provisions shall have binding force on all authorities and
persons throughout the Federal Republic of Nigeria”.
For the avoidance of doubt, the Federal Republic of Nigeria is
more particularly described to be a Federation consisting of States
(actually 36 States) and a Federal Capital Territory
(FCT)1.
From the foregoing, the 1999 Constitution prescribes and governs
the actions and inactions of all authorities and persons in the 36
States and the FCT, Abuja.
THE PROVISION OF FAIR HEARING UNDER THE 1999
CONSTITUTION
Fair hearing is a fundamental right guaranteed under the 1999
Constitution2. It is an elaborate fundamental right that
touches on composite issues that may not be waived either
unanimously or on agreement of parties or suo motu. Of particular
importance here is S. 36 (3) & (4) of the 1999 Constitution, which
provides 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:
Provided that –
(a) a court or such a tribunal may exclude from its proceedings
persons other than the parties thereto or their legal practitioners
in the interest of defence, public safety, public order, public
morality, the welfare of persons who have not attained the age of
eighteen years, the protection of the private lives of the parties
or to such extent as it may consider necessary by reason of special
circumstances in which publicity would be contrary to the interests
of justice; (b) if in any proceedings before a court or such a
tribunal, a Minister of the Government of the Federation or a
Commissioner of the Government of a State satisfies the court or
tribunal that it would not be in the public interest for any matter
to be publicly disclosed, the court or tribunal shall make
arrangements for evidence relating to that matter to be heard in
private and shall take such other action as may be necessary or
expedient to prevent the disclosure of the matter”(emphasis is
mine).
In a nutshell, the above section prescribes generally that all
civil and criminal judicial proceedings shall be held in
PUBLIC.
Quite surprisingly, neither the 1999 Constitution nor the
Interpretation Act defines the word public. The Black’s Law
Dictionary defines public as “open or available for all to use,
share or enjoy”. A judicial proceeding held in public is
undoubtedly such that is conducted in a place that guarantees
unrestricted right of ingress and egress to members of the society.
It therefore means that for a trial to conform to the
constitutional requirement under the aforementioned provision, the
trial must be in such a manner that will ensure that people can
easily access the venue.
An apt and supporting judicial definition of the word public was
given in the relatively recent case of Alimi v. Kosebinu (2016) All
FWLR 859, 944 at 979 paras. F-G where the Supreme Court defined
public as follows; “…It is my
firm and considered view that a place qualifies under section
36(3) of the Constitution of the Federal Republic of Nigeria, 1999
to be called public; and which a regular courtroom is, if it is
outrightly accessible and not so accessible on the basis of the
“permission” or “consent” of the judge”.
From the above judicial authority, it appears settled that the
1999 Constitution generally guarantees the right of every person in
a civil and criminal judicial proceeding, to a trial held in public
from the beginning to the end of the trial and being a public
right, neither party to a litigation can waive the right or adjust
it as it is a right donated by the Constitution3.
It is noteworthy that in a civil judicial proceeding, the 1999
Constitution mandates compulsorily that the proceedings of a court
or a tribunal (including the announcement of the decisions of the
court or tribunal) shall be held in public4. This is the
effect of the communal reading of S. 36(1) & (3) of the 1999
Constitution and a court or tribunal is mandatorily required to
observe same in a proceeding relating to the civil rights and
obligations of persons5. The court in Alimi v. Kosebinu
(supra) on the effect of breach of the right to fair hearing held
in clear terms that “a breach by a court of the right to fair
hearing is crucial and goes to the root of the court’s
jurisdiction. If established, it nullifies the entire proceeding in
which the breach occurred leaving nothing”6.
In like manner, the 1999 Constitution mandatorily stipulates
that a criminal judicial proceeding by a court or a tribunal be
held in public7. Obviously, there is a proviso to
S.36(4) of 1999 Constitution, that is, sanctioning not holding a
criminal judicial proceeding in public on grounds of interest of
defence, public safety, public order, public morality, welfare of
persons less than 18 years, protection of the private lives of the
parties or special circumstances in the interest of
justice8. Another ground for application of the proviso
is where a Minister or Commissioner satisfies the court or tribunal
that any matter should not be publicly disclosed in the public
interest9.
It is accordingly submitted that on the strength of the above
legal authorities and applying literal interpretation, a virtual
judicial proceeding runs contrary to S. 36(3) and (4) of the 1999
Constitution and is unconstitutional, being a breach of the right
to fair hearing. This is because a virtual judicial proceeding
cannot fit literally into the constitutional provision for trial in
the open or public and undoubtedly will deny people opportunity to
witness court proceeding especially as justice must not only be
done but must manifestly be seen to be done. A virtual proceeding
in the face of the extant legal framework is akin to a proceeding
in the chambers of a judge which violates the right to fair
hearing.
It is worthy of note that courts in some States have operated
virtual proceedings without any statutory backup other than the
status quo. On the contrary, Lagos and Ogun States on the
4th of May, 2020 and 5th of May, 2020
respectively came up with Practice Directions pursuant to the
powers of the Chief Judge to legalize virtual, remote or online
judicial proceedings. This is salutary and a well-conceived
pacesetting as the practice directions took care of several
important issues. Nevertheless, it is strongly submitted that to
the extent that the practice directions empowered the courts to
conduct virtual proceedings, they are inconsistent to the 1999
Constitution as the right of fair hearing would still be violated
as enshrined in S. 36(3) and (4) of the 1999 Constitution. It is of
no moment that the practice directions were made pursuant to SS.
6(6) and 274 of the 1999 Constitution.
It is also important to emphasize the common law reasonable
man’s test of determining impartiality and that the essence of
conducting a trial in public is so that a reasonable man who can
freely access the court at any time without obtaining the court’s
permission can form an opinion on whether the proceeding does
justice10. In fact, the tenor and diction of the 1999
Constitution admits of no exception and demands total compliance.
This position is further reinforced by the dictum of the court in
Alimi v. Kosebinu (supra) that where a part of the court’s
proceedings which ought to be public is given a confined conduct,
it “is clearly one done in secrecy and detracts from the
impartiality, independence, publicity and unqualified respect which
enshrouds justice given openly without fear or
favour11.
The author is not unaware of the fact that the link of the
virtual proceeding may be shared online for interested persons to
access the judicial proceeding in order to cure the constitutional
anomaly already created so that the virtual proceeding would still
be in public although this may appear to be stretching the word
public to an absurd limit. But, the virtual proceeding will still
suffer a great challenge because vicissitudes of poor internet
connection, epileptic power supply, data availability, dearth of
technological know-how, lack of access to virtual gadgets,
technological inefficiency among others will operate to restrict
the openness or accessibility of the virtual judicial proceeding,
thereby preserving the secrecy that the constitution abhors on this
score. It is somewhat conceded that it may be argued on the other
hand that in criminal trials, virtual proceedings may be adopted by
a court or tribunal without offending the constitutional right to
fair hearing anchored on the premise that the Covid-19 pandemic
fits into the grounds of public safety and the protection of the
private lives of the parties to the proceedings. However, part of
the proviso that requires a Minister of Federal Government or
Commissioner of a State Government to satisfy a court or tribunal
to receive evidence in camera cannot apply to empower a court or
tribunal to conduct virtual proceedings throughout an entire
proceeding. At any rate, a court or tribunal can only conduct
virtual proceedings under the proviso in so far as it relates to
taking evidence only on a privileged matter that ought not to be
publicly disclosed in the public interest.
It therefore flows from the foregoing that in civil trial, the
1999 Constitution does not make room whatsoever for the adoption of
virtual proceedings. Meanwhile, in criminal trials, the proviso to
S. 36(4)(a) & (b) of the 1999 Constitution may arguably be employed
to give constitutional flavour and backing to virtual proceedings
as analyzed above.
CONCLUSION
The use of technology is indeed a growing and welcome
development in diverse areas of human affairs. The adoption of
virtual proceeding is commendable especially in emergency
situations as posed by Covid-19 pandemic.
However, there is a great need to amend and fine tune the legal
frameworks in Nigeria beginning with the 1999 Constitution in order
to properly accommodate virtual proceedings and avoid unnecessary
violations of the fundamental right to fair hearing since one of
the attributes of fair hearing is that the proceedings shall be
held in public and all concerned shall have access to and be
informed of such a place of public hearing12. I will
further restate the words of the Supreme Court per Ogundare JSC as
follows: “The right to publicity is thus not a right which belongs
only to the parties and which they can waive by consent or
conduct”13.
It has been widely reported that several courts in Nigeria have
conducted virtual proceedings due to Covid-19 pandemic. This author
strongly believes that to the extent that any judicial proceeding
conducted in Nigeria contravenes the 1999 Constitution (right fair
hearing), notwithstanding the legal backing in the form of practice
directions as is obtainable in Lagos and Ogun States especially as
the 1999 Constitution preponderates over and above all authorities,
persons and laws, such proceedings though beautifully conducted
will be inconsistent with the 1999 Constitution, hence null and
void.
- 2 (2) of the 1999 Constitution.
- 36 of the 1999 Constitution.
- Alimi v. kosebinu (2016) All FWLR 859, 944 at 968, para.
A. - 36(1) & (3) of the 1999 Constitution.
- Alimi v. kosebinu (supra) at 972, para. H.
- Ibid at 972 para. C-D.
- 36(4) of the 1999 Constitution.
- 36(4) (a) of the 1999 Constitution.
- 36(4) (b) of the 1999 Constitution.
- Alimi v. kosebinu (supra) at 977, paras. C-D.
- Ibid at 96.
- Alimi v. kosebinu (supra) at 977, paras. B.
- NAB Ltd v. Barri Eng. (Nig) Ltd (1995) LPELR-SC.1/1994 at 45
para. C.
INTRODUCTION
The advent of Covid-19 has dealt a global punch on all facets of
human endeavours and activities. In the uniqueness of man,
alternative measures have emerged and are embraced in different
walks of life to mitigate the attendant harsh socio-economic
effects of Covid-19. There is a surge in the use of internet and
various virtual platforms to carry out the normal day-to-day
activities.
The judicial system a fortiori the courts, are equally affected
as they have been closed in order to contain the spread of
Covid-19. Out of sheer ingenuity and the need to attend to urgent
and fundamental court cases, there are widespread euphoric reports
of courts adopting the use of modern technology to observe virtual
proceedings through media like Skype, Zoom, Google Meet, Microsoft
Team amongst others in various parts of the word, Nigeria
inclusive.
As innovative as these developments are, there is a critical
importance to measure these new introductions into the judicial
cycle in Nigeria on the constitutional scale of our fons et origo –
the Constitution of the Federal Republic of Nigeria, 1999 as
amended; (hereafter called 1999 Constitution).
SUPREMACY OF THE 1999 CONSTITUTION
The 1999 Constitution is widely believed to be the organic and
fundamental law of Nigeria. This means that it is the law from
which all other laws emanate and derive their legitimacy and
validity. In this wise, it is accordingly enshrined in S. 1 (1) of
the 1999 Constitution as follows: “This Constitution is supreme and
its provisions shall have binding force on all authorities and
persons throughout the Federal Republic of Nigeria”.
For the avoidance of doubt, the Federal Republic of Nigeria is
more particularly described to be a Federation consisting of States
(actually 36 States) and a Federal Capital Territory
(FCT)1.
From the foregoing, the 1999 Constitution prescribes and governs
the actions and inactions of all authorities and persons in the 36
States and the FCT, Abuja.
THE PROVISION OF FAIR HEARING UNDER THE 1999
CONSTITUTION
Fair hearing is a fundamental right guaranteed under the 1999
Constitution2. It is an elaborate fundamental right that
touches on composite issues that may not be waived either
unanimously or on agreement of parties or suo motu. Of particular
importance here is S. 36 (3) & (4) of the 1999 Constitution, which
provides 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:
Provided that –
(a) a court or such a tribunal may exclude from its proceedings
persons other than the parties thereto or their legal practitioners
in the interest of defence, public safety, public order, public
morality, the welfare of persons who have not attained the age of
eighteen years, the protection of the private lives of the parties
or to such extent as it may consider necessary by reason of special
circumstances in which publicity would be contrary to the interests
of justice; (b) if in any proceedings before a court or such a
tribunal, a Minister of the Government of the Federation or a
Commissioner of the Government of a State satisfies the court or
tribunal that it would not be in the public interest for any matter
to be publicly disclosed, the court or tribunal shall make
arrangements for evidence relating to that matter to be heard in
private and shall take such other action as may be necessary or
expedient to prevent the disclosure of the matter”(emphasis is
mine).
In a nutshell, the above section prescribes generally that all
civil and criminal judicial proceedings shall be held in
PUBLIC.
Quite surprisingly, neither the 1999 Constitution nor the
Interpretation Act defines the word public. The Black’s Law
Dictionary defines public as “open or available for all to use,
share or enjoy”. A judicial proceeding held in public is
undoubtedly such that is conducted in a place that guarantees
unrestricted right of ingress and egress to members of the society.
It therefore means that for a trial to conform to the
constitutional requirement under the aforementioned provision, the
trial must be in such a manner that will ensure that people can
easily access the venue.
An apt and supporting judicial definition of the word public was
given in the relatively recent case of Alimi v. Kosebinu (2016) All
FWLR 859, 944 at 979 paras. F-G where the Supreme Court defined
public as follows; “…It is my
firm and considered view that a place qualifies under section
36(3) of the Constitution of the Federal Republic of Nigeria, 1999
to be called public; and which a regular courtroom is, if it is
outrightly accessible and not so accessible on the basis of the
“permission” or “consent” of the judge”.
From the above judicial authority, it appears settled that the
1999 Constitution generally guarantees the right of every person in
a civil and criminal judicial proceeding, to a trial held in public
from the beginning to the end of the trial and being a public
right, neither party to a litigation can waive the right or adjust
it as it is a right donated by the Constitution3.
It is noteworthy that in a civil judicial proceeding, the 1999
Constitution mandates compulsorily that the proceedings of a court
or a tribunal (including the announcement of the decisions of the
court or tribunal) shall be held in public4. This is the
effect of the communal reading of S. 36(1) & (3) of the 1999
Constitution and a court or tribunal is mandatorily required to
observe same in a proceeding relating to the civil rights and
obligations of persons5. The court in Alimi v. Kosebinu
(supra) on the effect of breach of the right to fair hearing held
in clear terms that “a breach by a court of the right to fair
hearing is crucial and goes to the root of the court’s
jurisdiction. If established, it nullifies the entire proceeding in
which the breach occurred leaving nothing”6.
In like manner, the 1999 Constitution mandatorily stipulates
that a criminal judicial proceeding by a court or a tribunal be
held in public7. Obviously, there is a proviso to
S.36(4) of 1999 Constitution, that is, sanctioning not holding a
criminal judicial proceeding in public on grounds of interest of
defence, public safety, public order, public morality, welfare of
persons less than 18 years, protection of the private lives of the
parties or special circumstances in the interest of
justice8. Another ground for application of the proviso
is where a Minister or Commissioner satisfies the court or tribunal
that any matter should not be publicly disclosed in the public
interest9.
It is accordingly submitted that on the strength of the above
legal authorities and applying literal interpretation, a virtual
judicial proceeding runs contrary to S. 36(3) and (4) of the 1999
Constitution and is unconstitutional, being a breach of the right
to fair hearing. This is because a virtual judicial proceeding
cannot fit literally into the constitutional provision for trial in
the open or public and undoubtedly will deny people opportunity to
witness court proceeding especially as justice must not only be
done but must manifestly be seen to be done. A virtual proceeding
in the face of the extant legal framework is akin to a proceeding
in the chambers of a judge which violates the right to fair
hearing.
It is worthy of note that courts in some States have operated
virtual proceedings without any statutory backup other than the
status quo. On the contrary, Lagos and Ogun States on the
4th of May, 2020 and 5th of May, 2020
respectively came up with Practice Directions pursuant to the
powers of the Chief Judge to legalize virtual, remote or online
judicial proceedings. This is salutary and a well-conceived
pacesetting as the practice directions took care of several
important issues. Nevertheless, it is strongly submitted that to
the extent that the practice directions empowered the courts to
conduct virtual proceedings, they are inconsistent to the 1999
Constitution as the right of fair hearing would still be violated
as enshrined in S. 36(3) and (4) of the 1999 Constitution. It is of
no moment that the practice directions were made pursuant to SS.
6(6) and 274 of the 1999 Constitution.
It is also important to emphasize the common law reasonable
man’s test of determining impartiality and that the essence of
conducting a trial in public is so that a reasonable man who can
freely access the court at any time without obtaining the court’s
permission can form an opinion on whether the proceeding does
justice10. In fact, the tenor and diction of the 1999
Constitution admits of no exception and demands total compliance.
This position is further reinforced by the dictum of the court in
Alimi v. Kosebinu (supra) that where a part of the court’s
proceedings which ought to be public is given a confined conduct,
it “is clearly one done in secrecy and detracts from the
impartiality, independence, publicity and unqualified respect which
enshrouds justice given openly without fear or
favour11.
The author is not unaware of the fact that the link of the
virtual proceeding may be shared online for interested persons to
access the judicial proceeding in order to cure the constitutional
anomaly already created so that the virtual proceeding would still
be in public although this may appear to be stretching the word
public to an absurd limit. But, the virtual proceeding will still
suffer a great challenge because vicissitudes of poor internet
connection, epileptic power supply, data availability, dearth of
technological know-how, lack of access to virtual gadgets,
technological inefficiency among others will operate to restrict
the openness or accessibility of the virtual judicial proceeding,
thereby preserving the secrecy that the constitution abhors on this
score. It is somewhat conceded that it may be argued on the other
hand that in criminal trials, virtual proceedings may be adopted by
a court or tribunal without offending the constitutional right to
fair hearing anchored on the premise that the Covid-19 pandemic
fits into the grounds of public safety and the protection of the
private lives of the parties to the proceedings. However, part of
the proviso that requires a Minister of Federal Government or
Commissioner of a State Government to satisfy a court or tribunal
to receive evidence in camera cannot apply to empower a court or
tribunal to conduct virtual proceedings throughout an entire
proceeding. At any rate, a court or tribunal can only conduct
virtual proceedings under the proviso in so far as it relates to
taking evidence only on a privileged matter that ought not to be
publicly disclosed in the public interest.
It therefore flows from the foregoing that in civil trial, the
1999 Constitution does not make room whatsoever for the adoption of
virtual proceedings. Meanwhile, in criminal trials, the proviso to
S. 36(4)(a) & (b) of the 1999 Constitution may arguably be employed
to give constitutional flavour and backing to virtual proceedings
as analyzed above.
CONCLUSION
The use of technology is indeed a growing and welcome
development in diverse areas of human affairs. The adoption of
virtual proceeding is commendable especially in emergency
situations as posed by Covid-19 pandemic.
However, there is a great need to amend and fine tune the legal
frameworks in Nigeria beginning with the 1999 Constitution in order
to properly accommodate virtual proceedings and avoid unnecessary
violations of the fundamental right to fair hearing since one of
the attributes of fair hearing is that the proceedings shall be
held in public and all concerned shall have access to and be
informed of such a place of public hearing12. I will
further restate the words of the Supreme Court per Ogundare JSC as
follows: “The right to publicity is thus not a right which belongs
only to the parties and which they can waive by consent or
conduct”13.
It has been widely reported that several courts in Nigeria have
conducted virtual proceedings due to Covid-19 pandemic. This author
strongly believes that to the extent that any judicial proceeding
conducted in Nigeria contravenes the 1999 Constitution (right fair
hearing), notwithstanding the legal backing in the form of practice
directions as is obtainable in Lagos and Ogun States especially as
the 1999 Constitution preponderates over and above all authorities,
persons and laws, such proceedings though beautifully conducted
will be inconsistent with the 1999 Constitution, hence null and
void.
- 2 (2) of the 1999 Constitution.
- 36 of the 1999 Constitution.
- Alimi v. kosebinu (2016) All FWLR 859, 944 at 968, para.
A. - 36(1) & (3) of the 1999 Constitution.
- Alimi v. kosebinu (supra) at 972, para. H.
- Ibid at 972 para. C-D.
- 36(4) of the 1999 Constitution.
- 36(4) (a) of the 1999 Constitution.
- 36(4) (b) of the 1999 Constitution.
- Alimi v. kosebinu (supra) at 977, paras. C-D.
- Ibid at 96.
- Alimi v. kosebinu (supra) at 977, paras. B.
- NAB Ltd v. Barri Eng. (Nig) Ltd (1995) LPELR-SC.1/1994 at 45
para. C.