The Constitutionality of Virtual Courts: A Call for the Amendment of the Evidence Act – Oluwatosin Ajose, Popoola

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INTRODUCTION

This Pandemic has brought the World to her knees causing disruptions in the Business Environment and all other sectors of Nations all over the World. The disruption is partly due to the impossibility of carrying on business as usual, the restrictions on movement and gathering of people. In the midst of this disruption, contractual obligations which had fallen due became impossible to discharge, the restriction on economic activities has resulted in increase in criminal activities[1], whichever way you look at it, this ought to be the time that our Courts should witness an increase in cases filed and Litigation would have made a bold statement of its efficacy and efficiency in resolving both civil and criminal matters.[2]

No doubt, Litigation is a major dispute resolution mechanism in Nigeria and it has one major advantage over its rival; ADR, it resolves both civil and criminal matters. This advantage notwithstanding, it has however failed to rise to the occasion due to its traditional and conventional set up which requires human interactions and interface to succeed. It failed to timeously rise up to the challenge of these trying and uncertain times. Our Courts were locked for weeks, its failings notwithstanding, our Judiciary rose to the occasion. On the 4th day of May, 2020, Lagos State adopted the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic period) Practice.”

Life was given to the Virtual Court. Following this big leap by the Lagos State Judiciary, other States[3] fell in line. Here comes the birth of the Virtual Courts in Nigeria. While the technologically savvy practitioners were rejoicing and basking in the euphoria, then came the Supreme Court’s Judgment in the case of UDE JONES UDEOGU V. ORJI UZOR KALU & ORS[4], this decision attracted a lot of opinions and criticisms as expected. Section 396(7) of the Administration of Criminal Justice Act, 2015 was held to be inconsistent with the Constitution of the Federal Republic of Nigeria (As Amended), (which shall herein be referred to as CFRN); Section 1(3) of the CFRN came to the rescue.

I like to think that this decision among other factors to be discussed shortly led to the call for the amendment of our Constitution to give a “suppose legal backing to our Virtual Courts.”

The Virtual Court is a huge step in our Judiciary, a step I doubt we would have taken, if the Pandemic had not happened, we’ve heard several debates as to its proprietary, constitutionality, appropriateness for this clime, a case has been made in its favor and against it. In reaction to this debate (and I like to think the decision in UDE JONES UDEOGU V. ORJI UZOR KALU & ORS (SUPRA) influenced that decision)  a Bill[5] was introduced at the floor of the National Assembly, and titled “1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020 (SB 418).”

The Bill aims to amend Section 36 of the Constitution to give legal effect to Virtual Court Proceedings, while I had earlier said many debates and opinions emerged, key among the debates is the school of thought that believes the Virtual Court is a contravention of Section 36 (1), (3) and (4) of the CFRN, Section 1(3) of the CFRN was cited to reiterate the effect of any inconsistency with the Constitution, another popular thought is that the Virtual Court cannot be considered to be public and as such they are not in conformity with the spirit and intent of Section 36 (3) of the CFRN which mandates that trials must be conducted in public.

Stakeholders are concerned more with the attitude and the traditional approach of the Apex Court in recent times. Would such a traditional Court not declare proceedings held virtually a nullity? Would proceedings held at the Virtual Court not be an exercise in futility? Would the aim of the Virtual Court to meet the exigencies of this trying period and uncertain times not be defeated? These questions and many more are what stakeholders will have to find answers to in the coming years regardless of whether the Constitution is amended or not.[6]

For the purpose of this work, I have raised 3 key questions, which I will do my best to answer within the confines of law.

a) Is the Virtual Court truly in substance and form a violation of Section 36 of the Constitution?

Permit me to start off my attempt at answering the above poser with the reproduction of Section 36 (1) and (3) of the CFRN:

“36 (1) 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.”

The issue here appears to be with the word PUBLIC, is a Virtual Court public enough? Let me take you through the operations of a Virtual Court. The Virtual Court adopts a video and audio driven technology such as Zoom, Skype etc., where parties and their respective lawyers have all the opportunity to make representation and submissions they would have made in the conventional setting. The password that guarantees access to these proceedings are made public vide a designated means, such as publishing a cause list on the Court’s website with their respective Passwords. Anyone and everyone interested in such a proceeding can join in the proceedings.

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Still on meaning of public, it is quite interesting that neither the Constitution nor the Interpretation Act defined the word public. I have thus resorted to the definition proffered by the Supreme Court in the case of EDIBO V. STATE[7], wherein Niki Tobi JSC (Retired) (and now of blessed memory) defined the word public:

“public” means, for the use of everyone without discrimination. Anything, gathering or audience which is not private.”

The Court went further thus:

“…In OVIASU V. OVIASU (1973) 11 SC 315[8] a case involving the hearing of a petition for dissolution of marriage in Chambers, this court held that the learned trial judge should not have decided on his own to hear the matter in chambers. This court said: “The hearing of this matrimonial case took place in the Judge’s chamber. Neither the counsel nor the parties requested for the hearing of the divorce proceedings in camera. A judge’s Chambers is not a court hall to which the public will normally have any right of access. The petition and answer did not contain such matters, which by law, ought to be heard in camera in a court room.” The Court held that the hearing of the petition in chambers occasioned a fundamental irregularity. The appeal was allowed.”

For all purpose and intent both the case of EDIBO V. STATE & OVIASU V. OVIASU (BOTH SUPRA) did not hold that a Virtual Court is not public rather those authorities (particularly OVIASU V. OVIASU) held the position, that, a Judge’s Chamber is not a court hall to which the public will normally have access to and further and more importantly that the Learned Trial Judge on his own volition elected to hear the matter in Chambers without the parties requesting for such.

Another interesting case that has been cited severally by proponents of the amendment is the case of NIGERIA-ARAB BANK LIMITED V. BARRI ENGINEERING NIG LTD[9], in that case, judgment was delivered in Chambers, the court relied on OVIASU V. OVIASU (SUPRA) and held inter alia that the delivery of judgment in chambers occasioned an irregularity which touched on the legality of the whole proceedings, this was how the Court said it:

“Coming back to the case on hand, it is my respectful view that sitting in chambers to deliver judgment is not, on the facts before us, sitting in public or in open court. 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…There is in this case a clear breach of mandatory provisions of Section 33 (3) and (13) of the 1979 Constitution and Order 36 Rule 1 of the High Court Rules of Lagos.”

More interesting is the fact that the Authorities that have been cited to demonstrate that a Virtual Court is not public, are not apposite to the issue at hand, the issue at hand is peculiar. In those authorities, the Apex Court was concerned more with the accessibility of the Judge’s Chambers. A Virtual Court on the other hand is ACCESSIBLE! Can we then, please appreciate the facts at hand and understand that they are totally different and world apart from all cited authorities on this issue. I make this plea with the knowledge of the principle of law enunciated in ADEGOKE MOTORS LTD V ADESANYA[10]where the Apex Court admonished thus:

“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationesdecidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.

The facts and circumstance of the recent case of Ben Obi Nwabueze&anor.v. Justice Obi Okoye (1988) 4 N.W.L.’R. (Pt.91) 664 and the decision and pronouncements of this Court in that case, all too clearly illustrate the point here being made – that Court’s decisions and pronouncements derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented. In Nwabueze’s case (as in this case) the Writ was issued in one jurisdiction for service in another jurisdiction. In Nwabueze’s case supra, when the Writ was served on the defendants, they promptly applied to the High Court that issued the Writ for:-

i. An order setting aside the Writ of Summons.

ii. An order setting aside the order of substituted service (the defendants were served by substituted means).

iii. An order setting aside the purported issue and service of the Writ of Summons on each of the defendants.

It thus became clear and apparent, from the word go, that the defendants questioned both the validity of the Writ as well as the validity of the Service

of the same Writ. These then became issues, in the case, calling for a decision. These issues, framed as they were from and by the facts and the steps promptly taken by the defendants formed the basis of this Court’s pronouncements and decision inNwabueze’s case supra. To rely on any pronouncements or on the decision in Nwabueze’s case supra in a subsequent case,it is incumbent on counsel so relying to show that the facts of his case are similar to those of Nwabueze’s case and (this is very important) that he took promptly the necessary steps to question the validity of the Writ or the validity of its service or both as was done in Nwabueze v. Okoye supra. If he does not succeed in doing this, he will be citing those pronouncements out of their proper context and he will thus be asking the Court to misapply them. In this case the appellants did not do what was done in Nwabueze’s case supra”. (Emphasis Supplied).

The principles in EDIBO V. STATE, OVIASU V. OVIASU & N.A.B. LTD. V. BARRI ENG. LTD (ALL SUPRA) are of a truth, good law but they are not applicable to the situation at hand. Having said that, the rationale behind section 36 (3) is to allow Lawyers, Litigants and interested person access to the Court room, the Virtual Court has not denied these persons access, it still maintains its public nature. I like to say that with the Virtual Courts, our proceedings have now become really public, as a person who is even outside the shores of the Country can “see” and “hear” our Court proceedings. What a beautiful way to put our judiciary on the global stage, it is high time the world becomes privy to the wisdom of our Judges. We must not only advertise the corruption in our Nation, we owe a duty to advertise the good.

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b) Do we need to amend the Constitution?

The Constitution is our grund norm, if the Constitution is amended now to enable and empower our Court to carry on with Virtual Proceedings. Does that mean, the next time there is a global emergency, we would call for amendment again? My attention has been drawn to the fact that the United States Constitution of 1787 has been in existence for 230 years with only 27 alterations, while the Canadian Constitution of 1867 and 1982 have been altered only nine times, the Nigerian Constitution is 21 years old and has been altered five times.[11] If it’s been shown that Virtual Court is not a violation of Section 36 (1) and (3) of the Constitution neither is it inconsistent with the provisions of the Constitution. I see no need for an amendment.

Having expressed my opinion above, I understand with clarity the position of persons who have called for amendment of the Constitution. They have no faith in the Apex Court’s ability to move away from her traditional and conventional nature. Was it not recently that we were hit with the Apex Court’s reasoning in UDE JONES UDEOGU V. ORJI UZOR KALU (SUPRA) and her tendency to cling strictly to formalities far above the interest of the Society. I hope we are well aware of the Apex Court’s assessment of her prowess in the case of ADEGOKE MOTORS LTD. V. ADESANYA[12] thus:

“We are final not because we are infallible, rather we are infallible because we are final. Justices of this Court are human beings, capable of erring.”

I guess the call for amendment is out of abundance of caution, and I am neither in a position to fault an act of abundance of caution, nor do I want to.

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Should we not call for the amendment of the Evidence Act, 2011 instead?

The Evidence Act, 2011 is an Act of the National Assembly which no Rules of Court, Practice Direction or Guideline can alter. It is equally the Evidence Act, 2011 that regulates the process and procedure of hearings in our Courts. This Act did not envisage that a time like this would come, when we would all be compelled to carry on our business remotely and as such it did not make provisions for this period.  We need to amend this law to accommodate our present reality which is Virtual Courts, we need to start conversations on the procedure of tendering and admissibility of document in evidence during Virtual Proceedings. How would a witness be sworn on oath? Would frontloaded copies of documents suffice? I guess this is the reason trials have not commenced at our Virtual Courts.

A case for Virtual Court

The Virtual Court is one of the good that came off the Covid-19 Pandemic. I’m sure that without this pandemic, we won’t be here at the moment, it might take us another half a decade or even a decade to start thinking about Virtual Courts. While the Virtual Court has been likened to a knee jerk development, its continued survival and ultimate thriving is dependent on the commitment of the bar and the bench to make it work.

In as much as the Virtual Court is a welcome development, our clime is bedeviled with self-limiting factors capable of frustrating the continued success of the Virtual Courts. There is the issue of poor power supply, bad network services, lack of access to internet services among others.

Moving away from the self-limiting factors of this clime, the legal profession is one structured on rules, principles and judicial precedents. I have no doubt of its workability at the Appellate Court or even instances where the lower Court will sit as Appellate Court. I equally abhor no doubt as to its success at the Trial Court for preliminaries, such as Mention, Applications, Report of Settlement, Bail Applications, Matters initiated vide Originating Summons among others. All of these can be done Virtually.

My major concern is with the process of conducting Trials, tendering of documents, determination of the credibility of witnesses, evaluation of Evidence among other procedural process. Will justice be done indeed if these trials are conducted Virtually?  Won’t witnesses be compromised?

It’s been advocated that the solution to these problems raised as posers above, is to allot a scheduled time for cases that are up for hearing.[13]

 CONCLUSION 

It is my sincere desire that the bar and the bench who are the stakeholders herein would come to a place of understanding that the era of traditional and conventional setting had long passed. We need to fully take advantage of technology to its fullest and make Litigation the best choice of dispute resolution mechanism. The adoption of the Virtual Court and its success (be it with the amendment of the Constitution or not) will help all her Practitioners.

I further hope that conversation for the call of the amendment of the Evidence Act, 2011 will start earnestly.

Oluwatosin Ajose Popoola is a Senior Associate with a Commercial Litigation based, law firm in Ibadan, she is passionate about law and its numerous instruments. She is equally a blogger and content creator.

Footnote

[1] The Lagos State Governor, His Excellency Babajide Sanwo Olu disagreed with this position, in His Excellency’s view it is only persons who are criminally minded that would resort to crime in the first place, it does not matter that business activities are on standstill.

[2] Proponents of ADR while advocating for Alternative Dispute Resolution Mechanism have identified all the ills of Litigation without regard for its abilities.

[3] Ogun State and Bauchi State are some of the States that adopted the Virtual Court in the wake of the Covid-19.

[4] SC.622c/2019 Judgment was delivered on Friday, the 8th day of May, 2020.

[5] The Bill was sponsored by Senator Opeyemi Bamidele

[6] Even if the Constitution were to be amended, what then is the fate of judgment already delivered virtually?

[7] (2007) LPELR-1012 (SC) 20-21, PARAS G-A

[8] (SUPRA) 21 PARAS B-E

[9] (1995) 8 N.W.L.R (PT. 413) 257 AT 290-291 PARAS B-A

[10](1989) 3 NWLR (PT 109) 250 at 265 para H – 266 paras A – F

[11] Kemi Pinheiro SAN; Is Constitutional Amendment Required for Virtual Court Hearings in Nigeria? Published on DNL Legal Style on 19th of May, 2020.

[12] (SUPRA) AT 274-275 PARA H

[13] This view was expressed by MojolaOluwa Mof’Oluwawo on Linkedin

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