By Precious Okoh
Sequel to the disruption of legal proceedings nationwide by the
novel Covi-19 pandemic, there has been a clamour for virtual court
sitting in order to hear and determine legal matters accordingly
but this time, not in the physical courts but with the aid of
technology and video conferencing. This innovation has led to an
initial test-run of the virtual court trial in some states like
Lagos, Ogun and Borno with other states warming up to take a
bite.
Some renowned legal practitioners have applauded this new
development as it displays the dynamic nature of the law to meet
with changing circumstances while others have shown their utmost
disapproval of the entire process on the grounds that it
contravenes the right contained in Section 36 (3) and (4) of the
1999 Constitution of the Federal Republic of Nigeria (as amended) –
the right to public trial. This article tends to find out whether
the virtual Court sitting amounts to a contravention of the
constitution.
Section 36 (3) (4) provides:
3. The proceedings of a court or the proceedings of any tribunal
relating to the matter 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unless the charge is withdrawn, be entitled to a fair hearing in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 actions as may be necessary or expedient to prevent
the disclosure of the matter. [Emphasis mine]
Very senior legal practitioners have relied on the above provision
to contend that virtual court sitting is bereft of
constitutionality for not being held in public. They have
voraciously cited cases where the court overturned proceedings held
in the judge’s chamber as not qualifying as a public place; if such
matter does not qualify as matters that may be heard in chambers.
One case relied on by this group is Oviasu v. Oviasu (1973) 11 SC
187. In that case, a hearing of the matrimonial case took place in
the chambers of the trial judge. Neither of the parties nor their
counsel requested for this. At the end of the hearing, the trial
court dissolved the marriage. On appeal, the Supreme Court allowed
the appeal, set aside the judgment and the matter was ordered to
start de novo. It was added that a court is a public place where
members of the public have unfettered ingress and egress.
Similarly, in Nigeria Arab Bank Ltd. v. Barri Engineering Nig.
Ltd. (1995) 8 NWLR (pt. 413) 257 @ 273 judgment was delivered in
chambers at the High Court in a claim for damages. On appeal, the
judgment was declared a nullity and a retrial was ordered. The
court further added that the right in section 33 (3) of the 1979
constitution now section 36 (3) 1999 constitution “is a public
right of every citizen. The courts must be opened to anyone who
presents himself or herself for admission or is so obliged to be so
presented.”
There is one underlying principle with respect to right to public
trial stated by the Courts and that is: that the court proceeding
must be held in a way that allows members of the public (who are
interested) to stroll in and observe the proceeding.
The Black’s Law dictionary defines a public trial as an open
court where people can witness the proceedings as long as they show
reasonable behaviour.
The Constitution does not define a public trial specifically but
from the interpretations of the court, it presupposes that what is
meant by a public trial is not in the strict sense the Courtroom
necessarily being opened to the public alone, if it were so, then
trial in camera would be illegal (of course that counts, but it is
not limited to it alone). Rather it means that every trial must be
done in a way that allows members of the public interested to
observe the proceedings. Therefore, to determine whether a trial is
unconstitutional on the basis of not being public, the question to
determine is whether the trial by its arrangement has
facilitated/deprived members of the public from joining and not
necessarily whether it was done in the Courtroom.
Does Virtual Court sitting allow members of the public
to observe the proceedings?
It has been argued that the largest Courtroom in Nigeria can
accommodate not more than 500 members of the public at the same
time to observe court proceedings. This is reasonably a generous
estimation considering ventilation and the conduciveness of the
courtroom. On the other hand, a virtual Court sitting using a video
conferencing device like Zoom can accommodate thousands of
participants to watch live a court trial. The question that begs
for answer then is: Which of the two modes is more public?
The drafters of the constitution did not make it a strict
principle that sittings must be held only in the “courtroom”; that
is why same can be done in chambers and even in the locus in quo.
The concern there is that members of the public must be free to
enter or exit. That is the ingredient necessary to make such trial
pass the test of being public.
It is necessary at this point to show the distinction between
Oviasu v. Oviasu [Supra] and Nigeria Arab Bank Ltd. v. Barri
Engineering Nig. Ltd. [Supra] on the one hand and virtual court
sittings on the other. In the former, the public was apparently
prevented from observing the proceedings when it was held in the
chambers. This is not the case with virtual court sittings as it
allows the general public to participate. It has been estimated
that over 25 million Nigerians have more chances of joining a
virtual court trial.
Is Virtual Court sitting a bed of Roses?
I am not unmindful of the several challenges regarding
electricity, technology and illiteracy affecting Nigeria. I am also
not unmindful that the early years of this programme may not be
totally smooth because of these challenges, but the Constitution
does not make a virtual court sitting a nullity on the grounds of
not being public.
I am not also unmindful that some procedural laws and the
Evidence Act probably has not expressly contemplated a virtual
court procedure, but I am confident that change is the only
constant thing and the next opportunity the legislature would have
would be directed at making procedural laws that would allow
virtual court sittings synchronize perfectly to the legal
system
Conclusion
As the world keeps changing and growing, we must not be clogged by
our own legislation. Law is organic. It should grow. It should
adapt. It should not be a static rock. It should not remain in
perpetuity without being broadened or narrowed to fit into changing
times. These are desperate times and they call for desperate
measures of adaptation. Adapt or die. Our legal system either
adapts or dies. A virtual court sitting indeed meets all the
requirements of a public trial and cannot be set aside on that
basis.
By Precious Okoh
Sequel to the disruption of legal proceedings nationwide by the
novel Covi-19 pandemic, there has been a clamour for virtual court
sitting in order to hear and determine legal matters accordingly
but this time, not in the physical courts but with the aid of
technology and video conferencing. This innovation has led to an
initial test-run of the virtual court trial in some states like
Lagos, Ogun and Borno with other states warming up to take a
bite.
Some renowned legal practitioners have applauded this new
development as it displays the dynamic nature of the law to meet
with changing circumstances while others have shown their utmost
disapproval of the entire process on the grounds that it
contravenes the right contained in Section 36 (3) and (4) of the
1999 Constitution of the Federal Republic of Nigeria (as amended) –
the right to public trial. This article tends to find out whether
the virtual Court sitting amounts to a contravention of the
constitution.
Section 36 (3) (4) provides:
3. The proceedings of a court or the proceedings of any tribunal
relating to the matter 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 actions as may be necessary or expedient to prevent
the disclosure of the matter. [Emphasis mine]
Very senior legal practitioners have relied on the above provision
to contend that virtual court sitting is bereft of
constitutionality for not being held in public. They have
voraciously cited cases where the court overturned proceedings held
in the judge’s chamber as not qualifying as a public place; if such
matter does not qualify as matters that may be heard in chambers.
One case relied on by this group is Oviasu v. Oviasu (1973) 11 SC
187. In that case, a hearing of the matrimonial case took place in
the chambers of the trial judge. Neither of the parties nor their
counsel requested for this. At the end of the hearing, the trial
court dissolved the marriage. On appeal, the Supreme Court allowed
the appeal, set aside the judgment and the matter was ordered to
start de novo. It was added that a court is a public place where
members of the public have unfettered ingress and egress.
Similarly, in Nigeria Arab Bank Ltd. v. Barri Engineering Nig.
Ltd. (1995) 8 NWLR (pt. 413) 257 @ 273 judgment was delivered in
chambers at the High Court in a claim for damages. On appeal, the
judgment was declared a nullity and a retrial was ordered. The
court further added that the right in section 33 (3) of the 1979
constitution now section 36 (3) 1999 constitution “is a public
right of every citizen. The courts must be opened to anyone who
presents himself or herself for admission or is so obliged to be so
presented.”
There is one underlying principle with respect to right to public
trial stated by the Courts and that is: that the court proceeding
must be held in a way that allows members of the public (who are
interested) to stroll in and observe the proceeding.
The Black’s Law dictionary defines a public trial as an open
court where people can witness the proceedings as long as they show
reasonable behaviour.
The Constitution does not define a public trial specifically but
from the interpretations of the court, it presupposes that what is
meant by a public trial is not in the strict sense the Courtroom
necessarily being opened to the public alone, if it were so, then
trial in camera would be illegal (of course that counts, but it is
not limited to it alone). Rather it means that every trial must be
done in a way that allows members of the public interested to
observe the proceedings. Therefore, to determine whether a trial is
unconstitutional on the basis of not being public, the question to
determine is whether the trial by its arrangement has
facilitated/deprived members of the public from joining and not
necessarily whether it was done in the Courtroom.
Does Virtual Court sitting allow members of the public
to observe the proceedings?
It has been argued that the largest Courtroom in Nigeria can
accommodate not more than 500 members of the public at the same
time to observe court proceedings. This is reasonably a generous
estimation considering ventilation and the conduciveness of the
courtroom. On the other hand, a virtual Court sitting using a video
conferencing device like Zoom can accommodate thousands of
participants to watch live a court trial. The question that begs
for answer then is: Which of the two modes is more public?
The drafters of the constitution did not make it a strict
principle that sittings must be held only in the “courtroom”; that
is why same can be done in chambers and even in the locus in quo.
The concern there is that members of the public must be free to
enter or exit. That is the ingredient necessary to make such trial
pass the test of being public.
It is necessary at this point to show the distinction between
Oviasu v. Oviasu [Supra] and Nigeria Arab Bank Ltd. v. Barri
Engineering Nig. Ltd. [Supra] on the one hand and virtual court
sittings on the other. In the former, the public was apparently
prevented from observing the proceedings when it was held in the
chambers. This is not the case with virtual court sittings as it
allows the general public to participate. It has been estimated
that over 25 million Nigerians have more chances of joining a
virtual court trial.
Is Virtual Court sitting a bed of Roses?
I am not unmindful of the several challenges regarding
electricity, technology and illiteracy affecting Nigeria. I am also
not unmindful that the early years of this programme may not be
totally smooth because of these challenges, but the Constitution
does not make a virtual court sitting a nullity on the grounds of
not being public.
I am not also unmindful that some procedural laws and the
Evidence Act probably has not expressly contemplated a virtual
court procedure, but I am confident that change is the only
constant thing and the next opportunity the legislature would have
would be directed at making procedural laws that would allow
virtual court sittings synchronize perfectly to the legal
system
Conclusion
As the world keeps changing and growing, we must not be clogged by
our own legislation. Law is organic. It should grow. It should
adapt. It should not be a static rock. It should not remain in
perpetuity without being broadened or narrowed to fit into changing
times. These are desperate times and they call for desperate
measures of adaptation. Adapt or die. Our legal system either
adapts or dies. A virtual court sitting indeed meets all the
requirements of a public trial and cannot be set aside on that
basis.