On the 11^th March 2020, the World Health Organisation (WHO) declared the novel coronavirus (COVID- 19) outbreak as a global pandemic.  The world changed in a twinkle of an eye. Suddenly daily life routines were abolished and new normal were introduced by Governments worldwide, such as social distancing, wearing of masks, constant washing of hands and generally staying at home to stop the spread of the highly contagious Covid-19.

Many businesses have been forced to change their working approach. Board meetings and general office meetings are being held online remotely and physical contact has been limited to the bare minimum or where it is essential with no other option. Banks and Financial Institutions have adapted quickly as by the nature of their business they embraced technology a long time ago. It appears other businesses are lagging behind especially the administration of justice. There is no gainsaying that Jurisdiction is the bedrock or foundation of our adversary system of our jurisprudence.  Before any court of law assumes jurisdiction to adjudicate on a cause or matter, the court must be competent in that;

• The Court is properly constituted as regards members and qualifications of the bench and no member is disqualified for one reason or the other
• The subject matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction
• The case comes before the court initiated by due process of law upon fulfilment of any condition precedent to the court’s exercise of jurisdiction. Any defect in competence will be fatal because the proceedings of the court will be a nullity no matter how well conducted. See the celebrated case of Madukolu v Nkemdilim (1962) 2SCNLR 341.

Meanwhile, section 36(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) stipulates; “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.”

36(4) states “ Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal”

The topic of this piece is whether online proceeding or remote court hearing is an infraction of the above constitutional provision in that can a remote court hearing be characterised as being a proceeding held in public? The answer to this question is crucial because no matter how brilliant the proceedings of the court, any defect in the competency of the court or infraction of the Constitution will result in a nullity of the entire proceedings. In order to answer this we have to ask an important question, that is, what indeed is a court. Is it a building or a service?

Wikipedia defines “a court as any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal and administrative matters in accordance to the rule of law. ………. The place where a court sits is known as a venue. The room where court proceedings occur is known as a courtroom, and the building as a courthouse…. The term court is also used to refer to the presiding officer or judge(s). ….. In the United States, and other common law jurisdictions, the term “court” by law is used to describe the judge himself or herself.”

Relating the Wikipedia definition above to the phrase “ in public” as contemplated in section 36(3) &(4), the reader will quickly see that “in public” simply means the proceedings as adjudicated by a judge in person at a venue known as the courthouse. However, the section did not emphasise that the proceedings must be held in a courtroom building per se. Reading section 36(3) &(4) along with section 36(1), the essential ingredient is the rules of natural justice and fair hearing must be adhered to. In effect, it is this writer’s opinion that a court is not necessarily a courthouse or a courtroom, which are simply venues.  The court is a venue where a judge can adjudicate disputes fairly between parties within the common law principles of natural justice. The judge himself is the court. The intention of the phrase “in public” is not a public building as such, but the provision of the service as an adjudicator in line with the rules of natural justice. In so far as the parties are afforded an opportunity to be heard and the general public can access the proceedings through technology, obtain certified copies of all filings and certified copies of the judgement, then it is my submission that the phrase “in public” encompasses the concept of remote court sittings/hearing as contemplated in section 36(3) & (4) of the 1999 Constitution (as amended). Please note this does not extend to the judge hearing cases in any private place as that will be stretching the meaning to a ludicrous limit.

The above position was given limited judicial backing by the Supreme Court in the case of Oba Jacob Oyeyipo & Anor v Chief J. O. Oyinloye [1987] NWLR (Pt. 50) 356 @ 464 per Obaseki JSc (As he then was) held:

“ When the Court sits in chambers, all that it means is that the judges of the court are transacting the business of the court in chambers instead of in open court( See Harmont v Foster (1881) 8 QBD 82,84). It does not mean that the court is not sitting in public. A court can sit in open court and yet decide to exclude members of the public other than the parties or their legal representatives from the hearing in exercise of its statutory powers. See the proviso to section 33(13) of the Constitution of the Federal Republic of Nigeria 1979. A judge may sit in chambers without excluding members of the public. It is therefore not unconstitutional to sit in chambers.” (Underlining for emphasis).

This writer is not unmindful of the line of Supreme Court cases that state otherwise such as EDIBO v STATE [2007] 13 NWLR (Pt. 1051) 306 and MISIRI ALIMI & ORS v ASANI KOSEBINU & ORS [2016] ELC 2397 @1 where the Supreme Court stated that a judge’s chambers is not and cannot be equated to a hall in a public building. The authority to sit in chambers is limited in scope and restricted to non-contentious applications or circumstances. Consequently the taking of the plea of the accused person in chambers was held to be breach of section 33(3) and (4) as it then was of the 1999 Constitution, which is equivalent to sections 36(3) & (4) as amended.

The Supreme Court stated in Edibo v the State (Supra) that the line of cases that follow Oyeyipo v Oyinloye (Supra) such as Chime v Ude [1996] 7NWLR (Pt. 461) 379 on the one hand and the line of cases following Edibo v State (supra) such as NAB v Barri Engineering (Nig) Ltd [1995] 8NWLR (Pt. 413) 257 @ 273 and Nuhu v Ogele [2003] 18NWLR (Pt.852) 251 were not conflicting but distinguishable because the Oyeyipo line of cases were not contentious at the time the applications were taken in chambers and non-contentious matters can properly be taken in chambers under the rules of the Supreme Court made pursuant to the Constitution. I am also of the opinion that criminal cases ought not to be taken remotely in view of the technical nature of criminal proceedings involving taking of plea and arraignment.

It is pertinent at this junction that I make a distinction between Online Court proceedings and proceedings in judge’s chambers. They are both different and distinct. Many legal commentators whilst arguing that hearing in judges’ chambers is unconstitutional placing reliance on Edibo v The State and Alimi v Koshebinu (supra), come to the conclusion that since hearing in judge’s chambers is unconstitutional then on line proceedings otherwise called remote or virtual hearing is also unconstitutional. I beg to differ. The Supreme Court in Alimi v Koshebinu (supra) reiterated that a right to fair hearing is actualized when a case is heard in public and proceeded to list the attributes of fair hearing as stated in the celebrated case of KOTOYE v CBN [1989] 1NWLR (Pt. 95) 414 namely that the court or tribunal shall;

• hear both sides
• give equal treatment and opportunity to all concerned
• ensure the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing
• ensure that having regard to all the circumstances, in every material decision in the case, must not only be done but must manifestly and undoubtedly be seen to have been done.

In summary, hearing a matter remotely through technology is not the same thing as hearing a matter in chambers. For one, remote hearing can be described as a public hearing as the public can gain access to the courts through the necessary gadgets. A large number of the public can access a remote hearing through technology unlike hearing in chambers that can accommodate only the parties and their counsel and at best a few members of the public. The condition of fair hearing and natural justice would have been satisfied as long as there exist an opportunity to access the remote hearings, then the burden shifts to parties or anyone interested to ensure entrance into the remote courts one way or another. In effect, it is my humble opinion that online proceedings or remote hearing satisfies all the attributes of natural justice and fair hearing.  In my view, all authorities cited in respect of sitting in chambers are inapplicable to the novel online court proceedings or remote hearing as they are separate, different and distinct circumstances.

The world has moved on and the legal profession will be left in the lurch if they do not embrace technology as soon as possible. As it stands, I do not believe an amendment of the constitution is required to commence remote hearing as long as the necessary practice directions made pursuant to the powers donated to chief judges in the constitution are made to meet the demand of the present exigencies.

However, since the 1999 Constitution is overdue for an amendment an opportunity can be taken to expressly include a provision on remote hearings. Gladly, the National Assembly has recently introduced a Bill amending the Constitution to include virtual court proceedings. This is a welcome development, as it will put an end to all the unnecessary legal technicalities especially knowing how strictly the Supreme Court justices are inclined in interpreting the Constitution. Refer to the recent case of UDE JONES UDEOGU v FRN, CHIEF ORJI KALU & ANOR SC. 622c/2019 (Unreported) delivered 8^th May 2020; where the entire proceedings was declared a nullity on the ground that the elevated judge of the High Court to the Court of Appeal lacked the competence to return to the Federal High Court to conclude a part heard trial. The matter was ordered to be re-tried de novo by a new judge after about 13 years on the court’s docket.

In the meantime, the National Judicial Council (NJC) released guidelines including provision for remote court hearing or sittings signed by the Chief Justice of the Federation. This should put paid to any future challenge that may occur on the competency of remote/virtual hearing by courts.

Tokunbo Jaiye-Agoro Esq

LLB. BL. Ficmc

Managing Partner

Jaiye Agoro & Co. (Solicitors & Advocates)

• Lagos
• Abuja

  May 2020

This article was also published in the Law Parliament.

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