May 20, 2020

A Simplistic View On Virtual Court Proceedings And The Requirement Of ‘Public’ Hearing | Babayemi Olaniyan Esq


It is a settled principle of law and life that the law cannot envisage every circumstance.

BACKGROUND

Over the years and even before colonization, disputing parties had always resolved their disputes by referring same to a third party adjudicator or mediator as the case may be. The traditional heads of the various villages or Tribes gave verdicts on issues and the parties were bound to follow them. This system had an hierarchical path, rising through varying levels.[1]

With the coming in of colonization, the modern Court system was introduced with all its apparatus and all its glamour. Individuals had to be specially trained to either be judges or lawyers properly so called. A formal setting was introduced as what is referred to as a court room. Arranged in such a way that the Judge sits at the helm of affairs and centralized facing the parties with the parties on the other end and a space created for witness(es). The setting will vary slightly with the Court of Appeal and Supreme Court.

These Courts are ranked and spread round the country with various heads. Their location is not hidden and any person can go into the court sit, listen and take notes; Lawyers and non-lawyers alike. The Court was and is seen as a sacred temple of justice where lawyers and litigants argue out the law in a controlled atmosphere under the ever bright eyes and mind of the Judge/Justices.

In Nigeria, the judicial powers of the Federation shall be vested in the Courts to which this section relates, being courts established for the federation[2]. The whole section aforementioned went on to talk about the judicial powers. One pertinent question is did the Constitution Create ‘‘Courts’’ or ‘‘Buildings’’?

PROCEEDINGS TO BE HELD IN PUBLIC

Recently this simple word ‘‘public’’ has become a very complicated word especially among lawyers, hence, it has become important to address the fundamental principles behind the idea and seek to look into the idea behind the word.

What is public?

Public means open or available for all to use, share, or enjoy. A place open or visible to the public.[3]  It is also defined as exposed to general view: open[4]

It is also important for the sake of clarity to also define the term ‘’Court’’. 

What is a Court?

A Court is a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice[5].  The key words from the above are:

1.      Governmental body

2.      One or more judges

3.      Sit

4.      Adjudicate dispute

Having set the foundation for the discourse to follow, what then is the provision of our laws as regard to determination of matters? Should they be in the public? Should they be hidden? What is public? What is hidden? Does virtual proceeding hinder fair hearing?

The Constitution of the Federal Republic of Nigeria 1999 provides as follows:

‘’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]

The key word is “Shall be held in public”

It is a very settled saying that ‘’Laws are made for man and not man for the laws’’ further settled is that man should not be slaves to the law.  Going from the above and with the current need for social distancing due to the novel Corona virus ( Covid-19) and dire need for technology in the legal sector, can it be said that virtual Court proceedings are illegal?

What are Virtual Court Proceedings?

Virtual Court proceedings are proceedings that are conducted electronically or using electronic means. These proceedings can be of two types:

1.      Hybrid

2.      Fully Virtual.

Hybrid

This type of court proceeding are held with some of the parties in a a particular place while others will join online. This can be in two forms to wit:

a.      Judge, Clerk, Witness will be in court alone, others will join in online or

b.     Judge, Clerk and lawyers will be in court alone, witness to join in online or;

Fully Virtual

This method will see all parties join in from separate locations. The Judge, Lawyers, witnesses will all join virtually.

Presently, India and the United Kingdom have been able to successfully test run and can effectively use virtual hearings for their proceedings. Bolivia, Ecuador, and Argentina, have been able to introduce virtual Court hearings for pre-trial detainees[7]

This work has earlier defined the word public and what a Court means. It is now apt at this point to avoid a thesis writing exercise and align the definitions with the law.

The law has quite unequivocally stated that Court proceedings must be in public. However, public as defined is not a building. Public simply means accessibility to all. The idea behind virtual Court Proceedings is to ensure that justice delivery is possible even with the difficulty caused by Covid-19. Virtual Court proceedings that are not passworded or if passworded but shared cannot be said to be illegal especially if other requirements are met. The Court is not a building, if not, transfer of judges will also be a problem. As long as a judge can sit and adjudicate efficiently in matters, Virtual Court proceedings cannot be said to be illegal or proceedings conducted therein void.

Further, it is a trite principle of law that what the law does not prohibit, it allows. There is no law anywhere that states that Virtual or Online Proceedings are illegal. All the cases prior to now were decided based on private hearing in judge’s chambers not online in court rooms. Judges chambers are secret places hence, the comparison will most likely fail the test of time. I have seen and read the cases cited by Harold Benson in his Article[8]. It is important at this juncture to state specifically, that the cases of Edibo v State[9] and Oviasu v. Oviasu[10] where cases decided based on proceedings held in a judge’s chamber. It is settled that the chamber of a judge is private. However, what is not settled is whether the Court proceeding held virtually is public. There is no Nigerian Authority on the point but using the principle of purposive interpretation, it is clear that there is nothing wrong neither is it unconstitutional as the writer stated or as argued in many quarters.

The Writer went further to quite interestingly provide statistic on the issue of light and data for the average Nigerian. The truth is while this statistic might be true, but if compared to the risk and transport used to come to a Court room without assurance of the Court sitting, it will be agreed that a virtual court sitting will serve everyone better. The writer also made reference to the erudite definition by Fidelis Nwadialo, this position is in tandem with this work, as Virtual Court proceedings do not stop anybody, rather it allows for wider coverage as even lawyers outside the seat of the hearing can watch. One good aspect of this Virtual Court proceeding will present itself when the Supreme Court is giving a judgment on a very important constitutional matter. Everybody/ lawyer will be able to watch and hear the pronouncement on the issues irrespective of where they are based and follow through immediately.

Lastly, the author has gone to town with the restrictiveness and capacity of zoom or virtual hearings using online medium. The current Court room capacity cannot take all litigants and lawyers no matter how hard we try. The Average Court room will sit between 30 to 50 persons, while a free zoom meeting can take up to 100 participants who can join in, with comfort, from their rooms. Capacity should definitely not be a reason.

One major advantage that Virtual Court sittings will help with is the issue of Court not sitting for various reasons. Every lawyer at some point has been disappointed by the announcement of Court not sitting despite getting to Court early and sometimes waiting for Minutes or hours. Imagine a situation where all parties are to join virtually. The inability of the Court to sit will not be overly felt as much as travelling all the way from office to Physical Court. Secondly, with Virtual Courts, the Judge can now sit at his convenience if the need arises and quickly dispense with matters.

CONCLUSION

Man must change with the changing times. A man must evolve with evolution. Like a lawyer that has just been called to bar, overtime we learn and develop a suitable means to navigate unfamiliar terrain.

The challenges with virtual proceeding will be enormous and are enormous but that does not make them illegal or contrary to the law. Once individuals can watch the proceedings and can see and hear, the Court has done its part. It is like normal court proceedings, some days parties absent themselves, does this then mean that they have not been given fair hearing? definitely not.

Technology has come to stay and it is important that the challenges associated are tackled. Court proceedings held virtually are not illegal and cannot be illegal if conducted properly and open for all and sundry to watch. It is safe to say that once the Court not building is accessible, then the requirement of the law can be said to have been complied with. In the case of Scott v. Scott[11] the House of Lords noted the right of public access to the courts is “one of principle ... turning, not on convenience, but on necessity". Again the above decision of the House of Lords references the point of this writer that as long as access is granted, venue or means should be of no moment.  

Thank you.

Babayemi Olaniyan Esq, DRS, ACIArb(UK) AICMC, ACIS

Yemiolaniyan00@gmail.com

08134699398



[1] Kehide Aina, Dispute Resolution (NCMG International and Aina Blankson LP 2012) 16

[2] S.6(1) CFRN 1999 ( as amended)

[3] Blacks Law Dictionary 9th Edn

[5] Ibid (n3)

[6] S. 36(3) CFRN 1999 (As amended)

[8] Covid-19: The legality of Virtual Court Proceedings in Nigeria https://thenigerialawyer.com/covid-19-the-legality-of-virtual-court-proceedings-in-nigeria-by-harold-benson/ ( accessed on 10-5-2020)

[9] (2007) 13 NWLR (Pt. 1051) 306

[10] (1973) 11 SC 315

[11] [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438


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