The Lagos State government has filed a suit against Abubakar Malami, the Attorney General of the Federation and Minister of Justice, and the National Assembly before the Supreme Court to test the constitutionality of virtual court hearings.
The Attorney General and Commissioner for Justice in the state, Moyosore Onigbanjo, filed the suit on behalf of the government.
Recall that the state judiciary was one of the first to adopt virtual hearings in the country, with Justice Mojisola Dada of a Lagos High Court sitting in Ikeja sentencing Olalekan Hameed to death by hanging via video teleconferencing app, Zoom, for the murder of 76-year-old Jolasun Okunsanya, his employer’s mother.
In the suit, the state is asking the Supreme Court to determine “whether having regard to Section 36(1), (3) and (4) of the 1999 Constitution [as amended], the use of technology by remote hearings of any kind, whether by Zoom, Microsoft Teams, WhatsApp, Skype or any other audiovisual or video-conference platform by the Lagos State High Court or any other courts in Nigeria in aid of hearing and determination of cases are constitutional”.
It also urged the Supreme Court to determine “whether in view of the powers conferred on the Chief Judge of a State under Section 274 of the Constitution and in particular, the Chief Judge of Lagos State having exercised such power to regulate the practice and procedure of the High Court of Lagos State through the issuance of Practice Directions for Virtual Hearings dated 4th and 15th May 2020, the National Assembly, can usurp the powers of the Chief Judge of Lagos State under Section 274 of the Constitution by commencing the process for the amendment of Section 36(3) and (4) of the Constitution to include virtual or remote hearings.”
The state, therefore, sought “a Declaration that the extant provisions in the Constitution, especially Sections 36 (3) and (4) are adequate to accommodate virtual or remote hearings of any kind whether by way of Zoom, Microsoft Teams, WhatsApp, Skype, or any other audiovisual or video-conference platform as provided for in the Practice Directions issued by the Chief Judge of Lagos State dated 4th and 15th May 2020”.
It also asked the Supreme Court to make a declaration that the Bill presented before the National Assembly seeking to specifically include remote hearing in the Constitution constitutes a usurpation of the judicial function.
The government urged the apex court to declare that it was not within the legislative competence of the National Assembly or any other body, person or authority whatsoever, to make laws to amend the Constitution for the regulation of the practice and procedure of the courts of Lagos State having regard to Section 274 of the Constitution.
In proof of its suit, a State Counsel in the State Ministry of Justice, Oluwayemisi Osisanya, in a 45-paragraph affidavit stated that following the outbreak of coronavirus pandemic which practically halted judicial proceedings in courts in Lagos, the National Judicial Council (NJC) issued guidelines on May 7, 2020, to aid the dispensation of justice in Nigeria.
She noted that pursuant to the provisions of Section 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Chief Judge of Lagos State issued Practice Directions to accommodate virtual or remote hearing.
Osisanya said, “The amendment process of the National Assembly is threatening to disrupt the smooth running of the judiciary in Lagos State and the administration of justice on account of the uncertainty being created by the amendment process.
“I know as a fact that divergent views on whether or not virtual court proceedings are in compliance with Sections 36(3) and (4) of the Constitution and Section 200 of the ACJL have caused the plaintiff to become apprehensive in respect of the validity of the virtual proceedings conducted pursuant to the Practice Direction issued by the Chief Judge of Lagos State.”
“I know as a fact that the plaintiff is worried that the effect of the steps being taken by the second defendant to amend Sections 36 [3) and (4) of the Constitution would be to render virtual proceedings conducted pursuant to the Practice Directions issued by the Chief Judge of Lagos State as unconstitutional because this would mean that every virtual hearing conducted prior to the amendment was unconstitutional.
“I know that a pronouncement by this honourable court with regard to the proper interpretation of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as it relates to the power of courts to conduct virtual or remote hearing proceedings will assist in resolving this issue,” she added.
The Supreme Court has yet to fix a date for the hearing of the suit.