Are Virtual Court Hearings Constitutional? (Part 3)

Are Virtual Court Hearings Constitutional? (Part 3)

Two weeks ago, we looked at the nature of virtual court hearings and what it entails; and compared it to the normality of the traditional court hearing. Then, last week, we delved into the legal issues and challenges arising from the use of virtual court hearings. Today, we conclude the three-part topic on the constitutionality of virtual court hearings.

The Constitution and Virtual Court Sittings
Section 36 of the 1999 Constitution, provides for the inalienable and undeniable right to fair hearing. This right expands to provide for an “open” trial, in which case the “proceedings of courts and tribunals established under the law [are] conducted in public”. This means that members of the public, must “have free and unfettered access” to the courtroom.

In CHUKWU v STATE (2012) LPELR – 15360 (CA), the court made it clear that:
“the requirement of fair hearing in public, especially to a person charged with a criminal offence, is a Constitutional requirement. It is meant to preclude hearing of causes or matters in private, or in secret. Thus, by Section 36(3) and (4) of the 1999 Constitution (supra), the proceedings of a court or Tribunal including the announcement of decisions, shall be held in public. The hearing of the court in a particular cause, starts from the filing of the action or writ as the case may be, the calling of evidence, the addresses of counsel and the pronouncement of judgement. In all these, the proceedings must be in public.” Per TSAMMANI J.C.A. (P. 23-24, paras. C-G)

In KOSEBINU & ORS v ALIMI (2005) LPELR – 11442 (CA), it was made clear that “by Section 74(m) of the Evidence Act, judicial notice should be taken of “the course of proceeding” in the lower court; and the course has been that proceeding including pronouncement of decision in the State or Federal High Courts, have always been conducted in the open court rather than the Chambers the lower court resorted to, in the delivery of its judgement”. The Appellant in this case had argued that, what amounts to a “public place” within the meaning of Section 36 (3) of the 1999 Constitution, is a question of fact. He had relied on the Supreme Court decision in N.A.B. LTD v BARRI ENGINEERING (NIG) LTD (1995) 8 NWLR (p 413) 257. In rejecting this argument out rightly, Muhammad, JCA (as he then was) who delivered the lead judgement, put it most succinctly, thus:

“The Supreme Court’s decision in the Barri’s case, is a profound restatement of this practice and recognition of same. The Supreme Court per Kutigi, JSC at p. 276 of the Law Report in considering S.33 (1) and (3) of the 1979 Constitution and Order 43 (1) of the Lagos State High Court rules firstly stated thus: “These enactments clearly show that the learned trial Judge should have sat in public and in open court to deliver his judgement.” Then, in a further amplification at page 291 of the report, Ogundare, JSC (as he then was) stated why delivery of judgment in Chambers contravenes the legislations under reference. He held thus: “A Judges’ Chambers is not one of the regular court rooms, 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.” It is my firm and considered view that a place qualifies under S.36 (3) of the 1999 Constitution to be called “public”, and which a regular court room is, if it is outrightly accessible, and not so accessible on the basis of the “permission” or “consent” of the Judge. In the case at hand, but for the “permission” or “consent” of the Judge to have the judgement delivered in his Chambers, neither the parties nor their counsel and indeed, the public at large, would have had access as of right to the Judge’s Chambers. It is of the essence of justice that not only should it be done, but that it should actually be seen to be done. Read the Apex Court again to this end, when in Barri’s case (Supra) at pages 290-291 of the report, it states: “Any act of secrecy, however desirable it might seem, detracts from the aura of impartiality, independence, publicity, and unqualified respect which enshrouds justice given without fear of favour. Its acceptance by the public at large, and the confidence it demands, depend on these aura being strictly adhered to.”

The Supreme Court was more profuse in SIMON EDIBO v STATE (2007) LPELR – 1012 (SC) when, it held:
“By Section 33(3) of the 1979 Constitution, the proceeding of a court or tribunal shall be held in public. Public means, for the use of everyone without discrimination. Anything, gathering or audience which is not private, is public.” “Learned counsel for the Respondent urged the court to follow Oyeyipo, and submitted that there was no miscarriage of justice by taking the plea of the Appellant in chambers. With respect, learned counsel is not correct. If there is a breach of fundamental right, it does not lie in the mouth of the party in breach, to canvass that there was no miscarriage of justice arising from the breach. The breach of the fundamental right being fundamental, overrides and overtakes the common law principle of “no miscarriage of justice.”

Indeed, Section 259 ACJA (1) provides:
259(1) Subject to the provisions of Sections 232 and 260 to 262 of this Act and of any other law specifically relating thereto, the room or place in which a trial is to take place under this Act shall be an open court to which the public generally may have access as far as it can conveniently contain them.
The following provisions of the Federal High Court (Civil Procedure Rules) 2019, are also apposite.
Order 18 (4) Where the Court intends to formulate issues for determination, it shall be done in open court and on notice to the parties to attend the hearing for the formulation of issues for determination.

Order 20 (1) Subject to these rules and to any enactment relating to evidence, any fact required to be proved at the trial of any action, shall be proved by written deposition and oral examination of witnesses in open court.
Order 23 Judgement, Entry of Judgement
The Judge shall after trial, deliver judgement in open court.
Order 23(9)(1) Where the defendant has no legal practitioner, such order shall not be made unless the defendant gives consent in person in open court.

It has been argued that, Section 36 (4)(a) and (b) permit courts of law to exclude certain persons from their proceeding; and this therefore, means sitting in secrecy, the equivalent they argue, to virtual court sittings. This is incorrect.
That a court must sit in public and in the open, shows it is actually emphasised by the exceptions provided in Section 36 (4)(a) and (b).

Section 36 (4)(a) & (b) state:
“(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal: Provided that –
a. a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;

b. if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a Commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”
These are but mere provisos (exceptions), to the sacrosanct rule of courts sitting in open court. This position was made clear in Ezeama v State (2014) LPELR – 22504 (CA), as follows:

“It is my considered opinion that Section 36(4) refers to 3 basic things and stages in criminal adjudication: (1) fair trial (2) in public (3) within a reasonable time. It must be noted that, it has general applicability and common to all classes of criminal adjudication, while the exceptions are encapsulated in provisos (a) and (b). While the general provision may apply and affect the Appellant, his case does not come within the exceptions. The exceptions refer to “uncommon criminal cases and accused persons” such as notorious criminals, political criminals, prisoners of war, juveniles or young persons, and all category of accused persons that their personality or trial may constitute a threat to the country’s defence, public safety, public order, morality, etc. The Appellant is a common suspect or accused at the trial court and not an “uncommon criminal”, neither did his personality, trial or his case constitute any of the afore-listed threats to the State or country. Thus, there ought not to be a request for his trial not to be held in public”.

In the same vein, it is worthy of note that, “An application to protect a witness may be made by the court suo motu, or by the Attorney-General of the Federation or other relevant law enforcement or security agencies” (Section 34(a) of the Terrorism (Prevention) Amendment Act, 2013. Similarly, Section 232 (1) (2) and (3) of ACJA buttress this point further by stating that: “A trial for the offences referred to in subsection (4) of this section may not, where the court so determines, be held in an open court”.

It is further provided in the said section that, where the court deems it fit to protect the identity of the victim or a witness, the court may take any or all of the following measures: (a) receive evidence by video link; (b) permit the witness to be screened or masked; (c) receive written deposition of expert’s evidence; and any other measures that the court considers appropriate in the circumstances. The names, addresses, telephone numbers and identity of the victims of such offences or witnesses shall not be disclosed in any record or report of the proceedings, and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets.

Indeed, Section 259 (2) provides that:
“(2) Notwithstanding the provisions of subsection (1) of this section, the Judge or Magistrate presiding over a trial may, in his discretion and subject to the provisions of Section 260 of this Act, exclude the public at any stage of the hearing on the grounds of public policy, decency or expedience.

(3) Where the court is sitting in a place other than a building, the authority given in subsection (2) of this section to exclude the public shall be construed as being authority to prevent the public approaching so near to where the court is sitting, as in the opinion of the Judge or Magistrate, to be able to hear what is taking place at the trial, or be able to communicate with a person allowed to be present.”
All the above provisions apply in equal measure; The Terrorism Prevention (Amendment) Act and the ACJA.

“A fair trial is one in which the rules of evidence are honoured, the accused has competent counsel, and the Judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.”- Harry Browne


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