Are Virtual Court Hearings Constitutional? (Part 2)

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Introduction
On 26th May, 2020, we analysed this topical constitutional issue in Part 1. Today, we shall conclude our discourse: except there is an amendment to Section 36 of the 1999 Constitution, virtual court proceedings, shall be declared null and void. Mark my words. I predicted in this manner in the Orji Uzor Kalu, Rivers, Bayelsa, Zamfara and Imo cases. They all came to pass. It is better to tarry awhile, and amend the Constitution first.

Challenges Posed by Virtual Court Hearings
Let us state right away that, our legal system has not been all analogue. After all, the Law Pavilion Electronic Law Report (LPELR), Nigerian Weekly Law Report (NWLR) electronic versions, have since been in use. However, aside the obvious constitutional obstacles posed by Section 36 of the 1999 Constitution, a virtual court hearing poses multi-faceted challenges beyond our immediate contemplation. Even advanced countries of the world with upscale technological, socio-economic and infrastructural development, still have open court sittings. I have watched the USA Supreme Court’s physical sittings, a couple of times.
Virtual Court sittings would have been less problematic, if they related only to mere harmless motions, non-adversarial applications, simple oral evidence and non-contentious threshold proceedings.

The questions are legion: What happens when evidence is given, such that requires vigorous cross-examination and physical identification and calculation of figures, pictures, signatures, etc? How do you take finger prints electronically and prove same through the same process? How do you deal with our epileptic power supply, where some patients have been known to have died during operations due to sudden black out? What about witnesses (and they are in the majority) resident in rural areas, who are involved in deadly chieftaincy, land and succession matters? How do you rail-road them into a zoom camera? What about the fact that unlike a normal court sitting where any member of the public can easily stroll in physically, zoom or skype proceedings are only accessible to those who have actually been invited, using a special password? Let us behold more virtual court challenges.

Online Dispute Resolution Proceedings
Even some of the ‘Online Dispute Resolution’ (ODR) technological machines currently being used are only as efficient as their Internet Service Providers, leading to great risk of possible technical failures in the transmission of documents, or in the conduct of video-conferences. This impairs a party’s adequate response to allegations made by the opposing party (contrary to Section 36(2)(a) of the Constitution); a scenario not possible with traditional arbitration mechanisms.

Even at that, under Article 9 of the UNCITRAL Model Law on International Commercial Arbitration, parties have the discretion as to what procedure shall be followed by an arbitral tribunal. This merely includes (not forced), the use of smart technologies and blockchain arbitration. However, such a party’s right to a free and fair trial is absolute, and he cannot waive or dispense with such a right; because it is a fundamental right which goes to the root of justice EYESAN v SANUSI (1984) LPELR-SC/107/1982.

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Cybercrime on the Increase
With cybercrime on the increase, sensitive documents of individuals, organisations and States, are liable to being hacked when subjected to virtual hearing or blockchain arbitration or ODR. The insecurity of confidentiality engendered by digitisation, raises serious legal and constitutional issues.
The present serial manipulations and photoshoppings inherent in technology, are dangerous in virtual court sittings. Have we not been entertained on the social media with Queen Elizabeth II dancing “owambe” with President Buhari, or Kim Jong-un, the President and Supreme leader of North Korea, suddenly opening up a booby trap and letting President Trump crash inside after Kim had carefully passed? To me, the very best that may happen for now, remains virtual hearings in extremely non-contentious simple applications, that merely complement (not displace outrightly) physical court hearings.

Visit to Locus in quo
What will virtual court protagonists say, when a court decides to undertake a visit to “locus in quo” (scene of the event; where the cause of action arose)? I guess everyone will move there through the lenses of the camera, and then also cross-examine through the same lenses, on matters concerning the extent of a disputed piece of land.
As held by the Supreme Court, in NWANKPU & ANOR v EWULU & ORS (1995) LPELR – 2107 (SC):
“… it is now an established principle of law that, there are certain matters that must be resolved by a visit to the locus in quo, such that at the locus in quo, the trial Judge will not avail himself of the mere belief, but of what he sees there.” Per OGUNDARE J.S.C. (P.36, paras. A-B).

See also KENON v TEKAM (1989) 5 NWLR (Pt 121) 366; OLUBODE v SALAMI (1985) 2 NWLR (Pt. 7) 282; OLUSANMI v OSHASONA (1992) 6 NWLR (Pt 245); EJIDIKE v OBIORA (1951) 13 WACA 270; ORUGBO v UNA (2002) LPELR – 2778 (SC); SEISMOGRAPH SERVICE (NIGERIA) LTD v AKPORUOVO (1974) 6 SC 111 at 128; ABDULLAHI & ORS v ADETUTU (2019) LPELR – 47384 (SC).
I guess the corpse of a deceased (the circumstances of whose death are hotly disputed by the prosecution and defence, and which must therefore, be exhumed for autopsy), could also be done through zoom? Haba!
In addition to the above decided cases, the Administration Criminal Justice Act (ACJA) provides in Section 263 for visit to locus in quo, and for the Defendant to be “present at the viewing of the place, person or thing concerned”. At this locus, the “court shall give directions as it may deem fit, for the purpose of preventing communication between the witnesses and the Defendant.”

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While Section 127(1)(b) of the Evidence Act provides for a court’s visit to the locus in quo; and that the court “may, if it deems fit, inspect any moveable or improvable property, the inspection of which may be material to the proper determination of the question in dispute”, Section 127 of the Evidence Act also permits a court to inspect “any moveable or immovable property, the inspection of which may be material to the proper determination of the question in dispute” outside a courtroom. The court may “adjourn to the place where the subject-matter of the said inspection may be, and the proceeding shall continue at that place until the court further adjourns back to its original place of sitting, or to some other place of sitting”.

Witnesses’ Demeanour
What happens to the well-known evidential issue, about a judex watching a witness’s physical demeanour to ascertain his credibility or otherwise? As held by the Apex Court in U.T.C. NIGERIA PLC v LAWAL (2013) LPELR-23003 (SC):
“It is well settled that a trial judge who sees and hears the witnesses giving evidence before him has the exclusive right to assess their demeanour, so as to determine whether they are telling the truth or not. He can in this way, determine the credibility or otherwise of the testimony of every witness who testified before him. If this is done properly, it is not for the Appeal Court to interfere in any way possible.” Per MUNTAKA- COOMASSIE, J.S.C. See also OGUN v AKINYELU & ORS (2004) LPELR-2319 (SC); MBAKWE v ESIONE (2016) LPELR-40954 (CA); NNADOZIE & ORS v MBAGWU (2008) LPELR-2-55 (SC); ONUOHA v STATE (1989) LPELR-2704 (SC).

Contempt In Facie Curiae
Contempt proceedings are used as a weapon to preserve the dignity and authority of the court, by punishing disobedience or disrespectful conduct towards a court of law or its officers, so as to maintain justice. In OMOIJAHE v UMORU & ORS. (1999) LPELR-2645 (SC), the Supreme Court held:
“A superior court of record has the inherent jurisdiction to deal with contempt in facie curiae, and punish for the offence summarily.” Per KATSINA ALU J.S.C.
See also INEC & ANOR. v OGUEBEGO & ORS (2017) LPELR-42609 (CA); SHERIFF & ANOR. v PDP & ORS (2017) LPELR-41805 (CA); AG OF EDO STATE & ANOR. v CHURCHGATE INDUSTRIES LTD & ANOR. (2016) LPELR-41439 (CA); OKAFOR v ORANU & ORS (2017) LPELR-42778 (CA).

The Constitution and Virtual Court Sittings
Section 36 (1) provides: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(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.
(6) Every person who is charged with a criminal offence shall be entitled to-
a. be informed promptly in the language that he understands and in detail of the nature of the offence;
b. be given adequate time and facilities for the preparation of his defence;
c. defend himself in person or by legal practitioners of his own choice;
d. examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal, and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution”.

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The law is now well settled from a plethora of decided cases that, a court must “sit in public”. In OSIGWELEM v INEC & ORS (2008) LPELR – 4805 (CA),the Intermediate Court held that: “proceedings of courts or tribunals established under the law not conducted in public but in other places, including the Judges’ chambers to which members of the public do not have free and unfettered access, are null and void, and therefore, no proceedings. Neither the Court or Tribunal, nor the agreement or consent of the parties can validate such proceedings.” – per Garba, JCA, at p.14. The court held that, proceedings which were conducted by the lower tribunal in chambers with respect to the Appellant’s petition, violated the provisions of Section 36 (3) of the 1999 Constitution. See also ABARSHI v COP (2005) 5 NWLR (917) 36 at 489; ACB PLC v NTS NIG LTD (2007) 1 NWLR (Pt 1010) 596; EDIBO v STATE (2007) 13 NWLR (Pt 1051) 306.

If proceedings in a Judge’s Chambers can be wholly voided because “members of the public do not have free and unfettered access”, how much more proceedings that are limited to invited viewers only through an advertised password, but also to which “members of the public do not have free and unfettered access”? [To be concluded].

THOUGHT FOR THE WEEK
“There’s always such a rush to judgement. It makes a fair trial hard to get.” – John Grisham

Credit: ThisdayLive

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