By Kemi Pinheiro SAN
According to Justice Madan Loukor: “Harnessing technology for the benefit of litigants – seekers of justice – is of utmost importance and this is eminently achievable through visionary leadership. “
1.01 In the wake of the Corona virus pandemic and the consequent lockdown to contain its spread, the administration of justice in Nigeria has been negatively impacted as most courts which prior to the pandemic have solely relied on physical courtroom sittings and filing of court processes could no longer operate and court proceedings were suspended.
In order to maintain continuous access to justice despite the pandemic, many have called for the use of technology by the Courts in Nigeria. Some have even castigated the Nigerian Judiciary as being slow in adapting to modern realities by deploying technology in the administration of justice whilst some others have viewed such calls as premature and untenable on account of the current state of our existing laws and have rather advocated for an amendment of the Constitution to make provision for virtual or remote hearings.
1.02 Amidst all the debates and legal arguments, the National Judicial Council (NJC) through the Chief Justice of Nigeria (CJN) in his capacity as the Chairman of the NJC issued three circulars insisting that court proceedings be suspended and Heads of Court should abide the judicial policy to be prepared by the Committee of the NJC on how the Courts can leverage on technology in the administration of justice. Only urgent and time bound cases are to be entertained during the pandemic period.
3.01 In view of the recent agitations of some legal pundit that there must be an amendment of the Constitution to accommodate virtual or remote hearings before same can be adopted and conducted in Nigeria and the bill that was recently introduced at the Nigerian Senate for an amendment of the Constitution to make provision for remote hearings, it has become pertinent to consider if truly an amendment of the Nigerian Constitution is required. I am of the firm view that an amendment of the Constitution is not required and I will state my reasons for same.
3.02 Before proceeding to state the reasons for my submission here that we do not require a constitutional amendment for virtual or remote hearings, I wish to first invite the attention of all to the fact that the United States Constitution of 1787 (which is in fact smaller in size and content than the Nigerian Constitution) has been in existence for 230 (Two Hundred and Thirty) years and have been altered in all its years of existence for only 27 times with the last amendment ratified on the 7th of May, 1992 Similarly, the Canadian Constitution of 1867 and 1982 (both in operation in Canada) has in all of its year of existence been altered only 9 (nine) times. Despite the few amendments to the Constitution of both the United States and Canada, those countries have only been faced with little or no constitutional crisis. The Nigerian Constitution on the other hand has only been in existence for 21 years and has been altered five times within its short life span. In fact, following every political era, it has now become the practice for every Assembly to amend the Constitution. Should that really be the case? I will proceed to now demonstrate why a constitutional amendment is not required.
3.03 Firstly, it is imperative we understand what a Constitution is and the range of matters that can be ordinarily contained in the Constitution. In this regard I will rely on the decision of the Supreme Court in the case of FRN v Oshaon (2006) 5 NWLR (Pt. 973) 361 where per Belgore JSC (as he then was) opined thus:
“Constitution of any country is the embodiment of what a people desire to be their guiding light in governance, their supreme law, fountain of all their laws. As such, Constitution is not at any given situation expected to or presumed to contain ambiguity. All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. Common sense must be applied to give meaning to all its sections or articles.”
3.04 Taking a cue from the foregoing, in the case of F.C.D.A. v. Ezinkwo (2007) ALL FWLR (Pt. 393) 95 at 115, paras. C – D (CA) it was held that:
” The constitution being the organic law of the country and the fons et origo from which all other laws derive their validity, the organic law which prescribes rights, powers, duties and responsibilities, no part of it can be described to be adjectival or procedural law in the sense in which that expression is often used. The Constitution is a substantive law which makes provisions for the procedural law applicable in the various courts established by it.
3.05 Clearly, the Constitution is in the realm of substantive law which in essence implies that it cannot cater for matters of procedure but constitutes a yardstick for determining which set of procedure to adopt and/or make provision for in subsequent laws or rules of practice and procedure as may be prescribe. May I also invite attention in this regard to the opinion of Nora Heddling of the Institute for Democracy and Electoral Assistance which I adopt as mine as follows:
“A constitution is not meant to provide laws and regulations for every aspect of a functioning society. It is usually neither practical nor beneficial for a constitution, when envisioned as a long-term, general framework for operation of the state, to go into details. It is impossible to predict how society will look in the future and what its specific circumstances and needs will be.”
3.06 It is therefore not surprising that there is no provision in the 1999 Constitution (as Amended) on how the Executive Arm of Government is to hold its meetings (i.e Federal Executive Council Meetings) or for how the Senate or the House of Representatives would hold parliamentary sessions. Such issues have been easily dealt with by the rules set up by the Executive and the legislative houses. In fact, recently the Federal Executive Council held its meeting virtually with no ruse as to requirement of constitutional amendment. Why then should there be a Constitutional amendment specifying how the judiciary should hold court sessions after the Constitution has specified their powers and jurisdiction. This is clearly unnecessary.
3.07 Furthermore, virtual or remote court sittings has to do with how the Court conducts its business and/or proceed to carry out its judicial function and therefore a matter of procedure. Recognizing that the respective Courts created in the Constitution will need to have its set rules on how court proceedings will be conducted, provision is made in sections 236, 248, 254, 259, 264, 269, 274, 279 and 284 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) for the various Heads of Court to make rules on practice and procedure in their respective courts. Why then should we amend the Constitution again and infuse procedural issues into same.
3.08 Understood from the standpoint that the Constitution cannot deal with matters of procedure, the next question to then ask is whether there is any provision of the 1999 Constitution (as Amended) that may inhibit or impact negatively on virtual or remote hearing. In this regard, it must first be noted that there is no provision in the Constitution proscribing remote hearing. In fact, remote hearing being a matter of procedure is not mentioned anywhere in the Constitution. The principle of law has remained inviolate to the effect that whatever is not expressly prohibited is permitted. See the case of Theophilus v FRN (2012) LPELR-9846 (CA) where it was held that:
“The basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted … It is not within the court’s interpretative jurisdiction or powers to construe a statute to mean what it does not mean, nor to construe it not to mean what it means.”
3.09 Consequently, in the context of our extant 1999 Constitution (as Amended), remote hearing has not been prohibited and is therefore impliedly permitted subject to appropriate rules of procedure as the Heads of Court have been guided to make in the NJC Guideline.
3.10 Furthermore, the provision of the Constitution often cited by the proponents of the view that constitutional amendment is required is section 36 (3) of the 1999 Constitution (as Amended) which provides as follows:
“the proceedings of a court or 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”
3.11 As would be right observed from section 36(3) of the Constitution set out above, public has not been restricted to “court room”. The Constitution never said proceedings of a court shall be held in a courtroom rather it says “Public”. Also no mention of physical presence was made in section 36(3) of the Constitution. The only place physical presence was referred to is in section 36(4) of the Constitution and it relates to criminal proceedings which also has exceptions relevant amongst which is that the physical presence can be dispensed with in the interest of public safety and the current pandemic poses a threat to public safety. What then is Public? Public as stated in section 36(3) of the Constitution is used in an adjectival sense to qualify the hearing to be conducted and according to Oxford Learner’s Dictionary Online, public when used as an adjective in terms of a place refers to:
“where there are a lot of people who can see and hear you”
3.12 Similarly, public used in an adjectival sense according to the Cambridge Dictionary online is:
“relating to or involving people in general, rather than being limited to a particular group of people.”
3.13 With the modern day reality of the world wide web as a virtual public space meaning that members of the public can easily surf, seek and get information on the internet and the advent of virtual public meeting rooms via collaborative platforms such as Zoom and Skype for Business where members of the public furnished with the url and log in details can participate, can we then say a hearing conducted via any of those public platforms offends section 36 (3) of the 1999 Constitution to warrant an amendment of the Constitution?
3.14 It is my view that the proponents of the contention that “Public” as stated means open Court as to suggest that remote hearings have been excluded have adopted a very narrow and restrictive definition of “Public” which in the current circumstances should not be allowed to hold sway. To start with, the cases relied on by those proponents to canvass their arguments such as Menakaya v Menakaya (2001) 43 WRN 138 and Oviasu v Dr. Oviasu & Anor (1973) 1 ALL NLR 730 dealt only with the issue of whether hearings conducted in chambers to which members of the public do not have access constitute “public” as provided in the Constitution and those decisions where solely predicated on the circumstances presented. It is the settled position of the law that a case can only be good precedent in another case where the facts are similar thus in the case of Nwabueze v The People of Lagos State (2018) LPELR-44113(SC) it was held that:
“It is therefore settled that a Court lower in the judicial ladder is bound by its own or the ratio decidendi of a higher Court in an earlier case, if the issues of fact and the legislation the Court considers subsequently are same or similar”
3.15 What then is the judicial position on what constitutes “public” within the meaning of section 36 (3) of the 1999 Constitution (as Amended). The judicial position has always been tilted towards considering same as a matter of fact and before now the appellate Courts have not been confronted with facts bothering on remote hearing. That notwithstanding, the appellate Courts have always viewed public within the context of the Constitution as a relates to public hearings from the standpoint of whether members of the public can have access to participate in such hearings thus in the case of Nigeria-Arab Bank Limited v. Barri Engineering Nig. Ltd. (1995) 8 NWLR (Pt. 413) 257, the Supreme Court in holding that a judges chambers is not a regular courtroom or public laid down the indices for determining same as follows:
“A Judges Chambers is not one of the regular courtrooms nor is it a place to which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge…”
3.16 Also, another commendable approach to view hearing conducted in public can be found in the dictum of per Muhammad JCA in the case of Kosebinu & Ors v Alimi (2005) LPELR-11442(CA) where after holding that the question of whether a place constitutes public is a question of fact held that:
“It is my firm and considered view that a place qualifies under S.36 (3) of the 1999 Constitution to be called “public” … if it is outrightly accessible and not so accessible on the basis of the “permission” or “consent” of the Judge.”
3.17 Consequently, where the general members of the public can have access to participate in a proceeding then it meets the requirements of public hearing. This must have been borne in mind by the National Judicial Council (NJC) when in setting out the policy of the Nigerian judiciary and guidelines as it relates to virtual court sittings specified that:
“Heads of courts shall ensure that there is live streaming of all virtual court proceedings through a publicized Uniform Resource Locator (“url” or “web address”) or the court’s or any other social media channel so that members of the public can observe the proceedings.”
3.18 Therefore, the use of a collaborative platforms to which any member of the public can have access to and publishing the information of such virtual proceedings to be conducted and the details to participate such as the url and log in details becomes sine qua non to a virtual hearing and as soon as that requirement is met, it becomes otiose to contend that the hearing was not conducted in public. Why then should we require a Constitutional amendment because of public hearing?
3.19 All that is now required is for the Appellate Courts in Nigeria to adopt a purposive interpretation of the Constitution that will take into account the current realities and the fact that by the tenor of the provisions of section 36(3) of the 1999 Constitution (as Amended) public has not been restricted to the courtroom neither has virtual proceedings been prohibited.
3.20 It is also my considered view that the National Assembly should give attention to and devote their time to other pressing issues affecting the nation such as giving legislative support to the fight against the spread of corona virus and boosting the economy post Covid-19 than amending the Constitution at this time otherwise sooner than later our constitution will be an “encyclopedia of alterations”. What is required is progressive thinking and interpretation of those existing provisions in the light and context of present day realities.
4.01 It is my considered opinion, that necessity is the mother of invention and in this period of the Covid-19 pandemic in which access to justice has been hindered by the inability to gain access to the regular court rooms, there can be no better time for the Nigeria Judiciary to commence usage of technology to enable continuous access to justice. It is my hope that all Heads of Court and the judges will take steps to in line with the Guidelines of the NJc make rules of practice and procedure to regulate virtual proceedings in their Courts.. As stated by Gabrielle Katriel:
“Let us rise to the occasion, not stoop to the circumstance”
4.02 Thank you.
Kemi Pinheiro SAN, FCIArb, FIoD is
Founding Partner Pinheiro LP, and Chairman, Lagos State Law Reform Commission.