In this article, Leaned Senior Advocate, Kemi Pinheiro, explains
the reasons why he believes that the implementation of Virtual
Remote Hearings in the courts, does not require an amendment of the
1999 Constitution, pointing out that, the Constitution cannot deal
with matters of procedure. He therefore, enjoins all Heads of
Courts to take steps in line with the NJC Guidelines, to issue
Practice Directions for virtual proceedings in their various
courts
According to Justice Madan Loukor: “Harnessing technology for
the benefit of litigants – seekers of justice – is of utmost
importance, and this is eminently achievable through visionary
leadership.”
Repayment
In view of the recent agitations of some legal pundits that there
must be an amendment of the Constitution to accommodate virtual or
remote hearings before same can be conducted in Nigeria, and the
Bill that was recently introduced at the Nigerian Senate for an
amendment of the Constitution to make provision for virtual
hearings, it has become pertinent to consider if truly an amendment
of the Nigerian Constitution is required. I am of the firm view
that, an amendment of the Constitution is not required, and I will
state my reasons for same.
Before proceeding to state why a constitutional amendment is not
required, I wish to first invite the attention of all to the fact
that, the United States Constitution of 1787 has been in existence
for 230 years, with only 27 alterations. Similarly, the Canadian
Constitution of 1867 and 1982 (both in operation in Canada), have
been altered only nine times. Those countries have only been faced
with little, or no constitutional crisis. The Nigerian Constitution
on the other hand, is 21 years old and has been altered five times
within its short life span. In fact, it has now become the practice
for every Assembly to amend the Constitution. Should that really be
the case? I will proceed to now demonstrate why a constitutional
amendment for virtual hearing, is not required.
Reasons why a Constitutional Amendment for Virtual Hearing is
not Required. Firstly, it is imperative that we understand what a
Constitution is, and what it should ordinarily contain. In this
regard, I will rely on the decision of the Supreme Court in the
case of FRN v Osahon (2006) 5 NWLR (Pt. 973) 361 where per Belgore
JSC (as he then was) opined thus:
“Constitution of any country is the embodiment of what a people
desire to be their guiding light in governance, their supreme law,
fountain of all their laws…Common sense must be applied to give
meaning to all its sections or articles”. Taking a cue from the
foregoing, in the case of F.C.D.A. v Ezinkwo it was held that:
“The Constitution being the organic law of the country and the
fons et origo from which all other laws derive their validity…no
part of it can be described to be adjectival or procedural law…The
Constitution is a substantive law”. Clearly, matters of procedure
cannot be found in the Constitution. May I also invite attention in
this regard to the opinion of Nora Hedding of the Institute for
Democracy and Electoral Assistance, which I adopt as mine as
follows:
“A Constitution is not meant to provide laws and regulations,
for every aspect of a functioning society. It is usually neither
practical nor beneficial for a Constitution, when envisioned as a
long-term, general framework for operation of the State, to go into
details. It is impossible to predict how society will look in the
future, and what its specific circumstances and needs will be”.
It is therefore, not surprising that there is no provision in
the Nigerian Constitution on how the Executive Arm of Government is
to hold its meetings (i.e Federal Executive Council Meetings), or
for how the Legislature would hold parliamentary sessions. Such
issues are easily dealt with, by the rules set up by the
Legislative houses. In fact, recently the Federal Executive Council
held its meeting virtually, with no constitutional amendment. Why
then should there be a constitutional amendment, specifying how the
Judiciary should hold court sessions?
Furthermore, virtual hearing relates to how the courts carry out
their judicial function and therefore, a matter of procedure.
Recognising that the respective courts created in the Constitution
will need to have its own set rules on how court proceedings will
be conducted, provision is made in the Constitution for the various
Heads of Court to make rules on practice and procedure in their
respective courts. Why then, should we amend the Constitution
again, and infuse procedural issues into same.
Understood from the standpoint that the Constitution cannot deal
with matters of procedure, the next question to then ask is,
whether there is any provision of the 1999 Constitution (as
amended) that prohibits virtual hearing. My simple answer is that,
no provision exists in the Constitution proscribing remote hearing.
In fact, remote hearing is not mentioned anywhere in the
Constitution. That said, the principle of law has remained
inviolate to the effect that, whatever is not prohibited is
permitted. See the case of Theophilus v FRN. Consequently, in the
context of our extant 1999 Constitution (as amended), remote
hearing having not been prohibited, is impliedly permitted.
Furthermore, Section 36(3) of the 1999 Constitution (as amended)
often relied on to support constitutional amendment provides as
follows:
“the proceedings of a court or proceedings of any tribunal
relating to the matters mentioned in (1) of this section (including
the announcement of the decisions of the court or tribunal) shall
be held in public”.
As would be rightly observed from Section 36(3) of the
Constitution, public has not been restricted to “court room”. Also,
physical presence or place was not mentioned. What then is Public?
Public as stated in Section 36(3) of the Constitution is used in an
adjectival sense, and according to Oxford Learner’s Dictionary
Online, Public when used as an adjective in terms of a place refers
to: “where there are a lot of people who can see and hear you”
Similarly, public used in an adjectival sense according to the
Cambridge Dictionary online is: “relating to or involving people in
general, rather than being limited to a particular group of
people”.
With the modern day reality of the world wide web as a virtual
public space which members of the public can easily access, and the
advent of virtual public meeting rooms via collaborative platforms
such as Zoom and Skype for Business where members of the public can
participate, can we then say a hearing conducted via any of those
public platforms offends Section 36(3) of the 1999 Constitution, to
warrant an amendment of the Constitution?
It is my view that, the contention that “public” means open
court, is a product of a very narrow and restrictive interpretation
of “Public”. To start with, the cases relied on for the contention
such as Menakaya v Menakaya(2001) 43 WRN 138 and Oviasu v Dr Oviasu
& Anor (1973) 1 ALL NLR 730 dealt only with the issue of whether
hearings conducted in Judges’ chambers constitute “public”, and it
is the settled law that a case can only be good precedent in
another case where the facts are similar. Thus, where the facts are
not similar the precedent will be inapplicable.
What then is the judicial position on what constitutes “public”
within the meaning of Section 36(3) of the 1999 Constitution (as
amended)? The judicial position has always been tilted towards
considering same as a matter of fact, and before now the appellate
courts have not been confronted with facts bordering on remote
hearing. However, the appellate courts have always viewed “public”
in this context, from the standpoint of access to members of the
public. See: Nigeria-Arab Bank Limited v Barri Engineering Nig.
Ltd.
See also, the dictum of per Muhammad JCA in the case of Kosebinu
& Ors v Alimi (2005) LPELR-11442(CA) where he opined as follows: “a
place qualifies under Section 36(3) of the 1999 Constitution to be
called “public” … if it is outrightly accessible, and not so
accessible on the basis of the “permission” or “consent” of the
Judge.”
Consequently, if the general members of the public can have
access to participate in a proceeding, then it meets the
requirements of public hearing. This must have been borne in mind
by the National Judicial Council (NJC) when, in setting out the
policy of the Nigerian Judiciary as it relates to virtual hearings,
specified that details of such hearing must be publicised to enable
members of the public participate. Therefore, publishing the
information of the url and login details becomes sine qua non to a
virtual hearing, andas soon as that is done, it qualifies as
hearing in “public”
All that is now required, is for the appellate courts in Nigeria
to adopt a purposive interpretation of the Constitution that will
take into account the current realities, and the fact that, by the
tenor of the provisions of Section 36(3) of the 1999 Constitution
(as amended), public has not been restricted to the courtroom,
neither has virtual proceedings been prohibited.
It is also my considered view that, the National Assembly should
give attention to other pressing issues affecting the nation, such
as giving legislative support to the fight against the spread of
Corona virus, otherwise sooner than later our Constitution will be
an “encyclopedia of alterations”. What is required is progressive
thinking and interpretation of those existing provisions, in the
light and context of present day realities.
Conclusion
It is my considered opinion, that necessity is the mother of
invention, and in this period of the Covid-19 pandemic in which
access to justice has been hindered to contain the pandemic, there
can be no better time for the Nigeria Judiciary to commence virtual
hearings. It is my hope that, all Heads of Court will take steps in
line with the Guidelines of the NJC, to make Practice Directions
for virtual proceedings in their Courts. As stated by Gabrielle
Katriel:
“Let us rise to the occasion, not stoop to the circumstance”
Kemi Pinheiro SAN, FCIArb, FIoD is Founding Partner Pinheiro LP,
and Chairman, Lagos State Law Reform Commission.
In this article, Leaned Senior Advocate, Kemi Pinheiro, explains
the reasons why he believes that the implementation of Virtual
Remote Hearings in the courts, does not require an amendment of the
1999 Constitution, pointing out that, the Constitution cannot deal
with matters of procedure. He therefore, enjoins all Heads of
Courts to take steps in line with the NJC Guidelines, to issue
Practice Directions for virtual proceedings in their various
courts
According to Justice Madan Loukor: “Harnessing technology for
the benefit of litigants – seekers of justice – is of utmost
importance, and this is eminently achievable through visionary
leadership.”
Repayment
In view of the recent agitations of some legal pundits that there
must be an amendment of the Constitution to accommodate virtual or
remote hearings before same can be conducted in Nigeria, and the
Bill that was recently introduced at the Nigerian Senate for an
amendment of the Constitution to make provision for virtual
hearings, it has become pertinent to consider if truly an amendment
of the Nigerian Constitution is required. I am of the firm view
that, an amendment of the Constitution is not required, and I will
state my reasons for same.
Before proceeding to state why a constitutional amendment is not
required, I wish to first invite the attention of all to the fact
that, the United States Constitution of 1787 has been in existence
for 230 years, with only 27 alterations. Similarly, the Canadian
Constitution of 1867 and 1982 (both in operation in Canada), have
been altered only nine times. Those countries have only been faced
with little, or no constitutional crisis. The Nigerian Constitution
on the other hand, is 21 years old and has been altered five times
within its short life span. In fact, it has now become the practice
for every Assembly to amend the Constitution. Should that really be
the case? I will proceed to now demonstrate why a constitutional
amendment for virtual hearing, is not required.
Reasons why a Constitutional Amendment for Virtual Hearing is
not Required. Firstly, it is imperative that we understand what a
Constitution is, and what it should ordinarily contain. In this
regard, I will rely on the decision of the Supreme Court in the
case of FRN v Osahon (2006) 5 NWLR (Pt. 973) 361 where per Belgore
JSC (as he then was) opined thus:
“Constitution of any country is the embodiment of what a people
desire to be their guiding light in governance, their supreme law,
fountain of all their laws…Common sense must be applied to give
meaning to all its sections or articles”. Taking a cue from the
foregoing, in the case of F.C.D.A. v Ezinkwo it was held that:
“The Constitution being the organic law of the country and the
fons et origo from which all other laws derive their validity…no
part of it can be described to be adjectival or procedural law…The
Constitution is a substantive law”. Clearly, matters of procedure
cannot be found in the Constitution. May I also invite attention in
this regard to the opinion of Nora Hedding of the Institute for
Democracy and Electoral Assistance, which I adopt as mine as
follows:
“A Constitution is not meant to provide laws and regulations,
for every aspect of a functioning society. It is usually neither
practical nor beneficial for a Constitution, when envisioned as a
long-term, general framework for operation of the State, to go into
details. It is impossible to predict how society will look in the
future, and what its specific circumstances and needs will be”.
It is therefore, not surprising that there is no provision in
the Nigerian Constitution on how the Executive Arm of Government is
to hold its meetings (i.e Federal Executive Council Meetings), or
for how the Legislature would hold parliamentary sessions. Such
issues are easily dealt with, by the rules set up by the
Legislative houses. In fact, recently the Federal Executive Council
held its meeting virtually, with no constitutional amendment. Why
then should there be a constitutional amendment, specifying how the
Judiciary should hold court sessions?
Furthermore, virtual hearing relates to how the courts carry out
their judicial function and therefore, a matter of procedure.
Recognising that the respective courts created in the Constitution
will need to have its own set rules on how court proceedings will
be conducted, provision is made in the Constitution for the various
Heads of Court to make rules on practice and procedure in their
respective courts. Why then, should we amend the Constitution
again, and infuse procedural issues into same.
Understood from the standpoint that the Constitution cannot deal
with matters of procedure, the next question to then ask is,
whether there is any provision of the 1999 Constitution (as
amended) that prohibits virtual hearing. My simple answer is that,
no provision exists in the Constitution proscribing remote hearing.
In fact, remote hearing is not mentioned anywhere in the
Constitution. That said, the principle of law has remained
inviolate to the effect that, whatever is not prohibited is
permitted. See the case of Theophilus v FRN. Consequently, in the
context of our extant 1999 Constitution (as amended), remote
hearing having not been prohibited, is impliedly permitted.
Furthermore, Section 36(3) of the 1999 Constitution (as amended)
often relied on to support constitutional amendment provides as
follows:
“the proceedings of a court or proceedings of any tribunal
relating to the matters mentioned in (1) of this section (including
the announcement of the decisions of the court or tribunal) shall
be held in public”.
As would be rightly observed from Section 36(3) of the
Constitution, public has not been restricted to “court room”. Also,
physical presence or place was not mentioned. What then is Public?
Public as stated in Section 36(3) of the Constitution is used in an
adjectival sense, and according to Oxford Learner’s Dictionary
Online, Public when used as an adjective in terms of a place refers
to: “where there are a lot of people who can see and hear you”
Similarly, public used in an adjectival sense according to the
Cambridge Dictionary online is: “relating to or involving people in
general, rather than being limited to a particular group of
people”.
With the modern day reality of the world wide web as a virtual
public space which members of the public can easily access, and the
advent of virtual public meeting rooms via collaborative platforms
such as Zoom and Skype for Business where members of the public can
participate, can we then say a hearing conducted via any of those
public platforms offends Section 36(3) of the 1999 Constitution, to
warrant an amendment of the Constitution?
It is my view that, the contention that “public” means open
court, is a product of a very narrow and restrictive interpretation
of “Public”. To start with, the cases relied on for the contention
such as Menakaya v Menakaya(2001) 43 WRN 138 and Oviasu v Dr Oviasu
& Anor (1973) 1 ALL NLR 730 dealt only with the issue of whether
hearings conducted in Judges’ chambers constitute “public”, and it
is the settled law that a case can only be good precedent in
another case where the facts are similar. Thus, where the facts are
not similar the precedent will be inapplicable.
What then is the judicial position on what constitutes “public”
within the meaning of Section 36(3) of the 1999 Constitution (as
amended)? The judicial position has always been tilted towards
considering same as a matter of fact, and before now the appellate
courts have not been confronted with facts bordering on remote
hearing. However, the appellate courts have always viewed “public”
in this context, from the standpoint of access to members of the
public. See: Nigeria-Arab Bank Limited v Barri Engineering Nig.
Ltd.
See also, the dictum of per Muhammad JCA in the case of Kosebinu
& Ors v Alimi (2005) LPELR-11442(CA) where he opined as follows: “a
place qualifies under Section 36(3) of the 1999 Constitution to be
called “public” … if it is outrightly accessible, and not so
accessible on the basis of the “permission” or “consent” of the
Judge.”
Consequently, if the general members of the public can have
access to participate in a proceeding, then it meets the
requirements of public hearing. This must have been borne in mind
by the National Judicial Council (NJC) when, in setting out the
policy of the Nigerian Judiciary as it relates to virtual hearings,
specified that details of such hearing must be publicised to enable
members of the public participate. Therefore, publishing the
information of the url and login details becomes sine qua non to a
virtual hearing, andas soon as that is done, it qualifies as
hearing in “public”
All that is now required, is for the appellate courts in Nigeria
to adopt a purposive interpretation of the Constitution that will
take into account the current realities, and the fact that, by the
tenor of the provisions of Section 36(3) of the 1999 Constitution
(as amended), public has not been restricted to the courtroom,
neither has virtual proceedings been prohibited.
It is also my considered view that, the National Assembly should
give attention to other pressing issues affecting the nation, such
as giving legislative support to the fight against the spread of
Corona virus, otherwise sooner than later our Constitution will be
an “encyclopedia of alterations”. What is required is progressive
thinking and interpretation of those existing provisions, in the
light and context of present day realities.
Conclusion
It is my considered opinion, that necessity is the mother of
invention, and in this period of the Covid-19 pandemic in which
access to justice has been hindered to contain the pandemic, there
can be no better time for the Nigeria Judiciary to commence virtual
hearings. It is my hope that, all Heads of Court will take steps in
line with the Guidelines of the NJC, to make Practice Directions
for virtual proceedings in their Courts. As stated by Gabrielle
Katriel:
“Let us rise to the occasion, not stoop to the circumstance”
Kemi Pinheiro SAN, FCIArb, FIoD is Founding Partner Pinheiro LP,
and Chairman, Lagos State Law Reform Commission.