Lagos Govt Drags FG, N’Assembly to Supreme Court over Virtual Court Hearings

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By Davidson Iriekpen

The Lagos State Government has dragged the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) and the National Assembly before the Supreme Court to test the constitutionality of virtual court hearings.

In a suit filed through the state’s Attorney General and Commissioner for Justice, Mr. Moyosore Onigbanjo (SAN), Lagos is asking the apex court to determine “whether having regard to Section 36(1), (3) and (4) of the 1999 Constitution (as amended), use of technology by remote hearings of any kind, whether by Zoom, Microsoft Teams, WhatsApp, Skype or any other audio visual 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.”

The plaintiff argued that the divergent views on whether or not virtual court proceedings are lawful, is causing apprehension over proceedings already conducted virtually in compliance with Practice Directions issued by the Chief Judge of Lagos State.

It therefore wants 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 May 4 and 15, 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 is further seeking 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 audio visual or video-conference platform as provided for in the Practice Directions issued by the Chief Judge of Lagos State dated May4 and 15, 2020.

The plaintiff also urged the apex court for a declaration that it is not within the legislative competence of the 2nd defendant or any other body, person or authority whatsoever to make laws or otherwise 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.

It contended that the bill presented before the 2nd defendant seeking to specifically include remote hearing in the Constitution constitutes a usurpation of judicial function.

In a 45 paragraph affidavit sworn to by Oluwayemisi Osisanya, a state counsel in the Ministry of Justice, Lagos State, she stated that following the outbreak of the 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 further averred 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 also claimed that, “the amendment process of the 2nd defendant 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.

“The Constitution is an organic document that should be interpreted broadly as held by this court in Marwa V. Nyako (2012] 6 NWLR (Pt. 1296) 199 where this honourable court held that “while the language of the constitution does not change, the changing circumstances of a progressive society for which it was designed can yield new and further import of its meaning.

“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 has 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 2nd 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,” Osisanya stated

The Supreme Court is yet to fix a date for the hearing of the matter.