Supreme Court Strikes Out Suits By Lagos And Ekiti Challenging Legality Of Virtual Court Sittings

The Supreme Court has struck out suits by Lagos and Ekiti states, challenging the legality of virtual court sittings.

In a unanimous judgement On Tuesday, Justice Olabode Rhodes-Vivour declared that as at today virtual court sittings are not unconstitutional.

The suit brought by the Attorney-General of Ekiti State, Olawale Fapohunda, against the Attorney-General of the Federation and Attorneys-General of Lagos and Ogun States respectively, on the ‘legality or otherwise’ of virtual court hearing.

In the suit brought pursuant to Order 3 rule 6, Supreme Court Rules (as amended in 1999), Section 232(1) of the 1999 constitution (as amended) and Sections 1(3), 36(3) and (4) of the 1999 Constitution (as amended), the Attorney-General of Ekiti State is asking the Supreme Court to determine whether the directive issued by the Attorney-General of the Federation vide its directive issued on April 20, 2020, to the heads of courts at federal and states level, in conjunction with the guidelines issued on May 7, 2020, by the National Judicial Council (NJC) specifically as it relates to the conduct of virtual proceedings in court is not only a violation of the federalism provisions of the 1999 Constitution but also in violation of the constitutional provisions on fair hearing specifically as it relates to the conduct of criminal trials in public.

The Ekiti State Attorney-General is also asking the Supreme Court to set aside or strike down parts of the said directive of the Attorney-General of the Federation and NJC guidelines, as they relate to virtual or remote court sittings to the extent that they purport to be binding on the Ekiti State High Court for being inconsistent with sections 1(3), 4(6), 5(2), 6(2), 36(3) and (4), 272 and 274 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The issue of the constitutionality or otherwise of remote or virtual court hearing has dominated the national discussion since the publication of the NJC guidelines which recommended virtual court proceedings for courts in response to the COVID-19 pandemic.

They reason that cases heard and determined under such an arrangement are most likely to be set aside by the Supreme Court on the ground that such hearings do not meet the constitutional thresholds for determining cases.

The judges cited section 36 of the constitution, which provides that court proceedings, including delivery of court decisions, shall be held in public.

Section 36 (3) and (4) of the Constitution provide as follows: (3) “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.

“(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…”

Meanwhile, there is tension in Bayelsa State as the Supreme Court is set to hear the suit challenging the declaration of Governor Douye Diri as the winner of the Peoples Democratic Party (PDP) held on September 3 2019.

The Chairman of the PDP electoral panel and governor of Taraba State, Governor Darius Ishaku, had declared Diri winner after polling 561 votes to defeat his close rival, Ndutimi Alaibe who polled 365 votes.

Alaibe, dissatisfied with the declaration of Diri as Governor, had approached the High Court arguing that the PDP and the Independent National Electoral Commission (INEC) adopted a flawed process that led to the emergence of Diri as the PDP flagbearer.

Justice Tijani Ringim sitting at the Federal High Court Owerri had dismissed Alaibe’s suit declaring Diri as the winner of the primaries.

Alaibe had proceeded to the Appeal Court to challenge the decision of the lower court and in a unanimous decision; the Appellant Court upheld the decision of the lower court.

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Alaibe, however, filed an appeal at the Supreme Court arguing through his counsel S.T. Ologunorisa, a Senior Advocate of Nigeria (SAN) that the lower and the appellant courts erred in law by upholding the election of Diri as PDP candidate and pray that the apex court declares him the winner of the primaries.

A five-man panel of Supreme Court Justices headed by the Chief Justice of Nigeria, Justice Ibrahim Tanko Muhammed had on June 17 asked the appellant and the respondents to regularise their processes.

It was learnt that the apex court had communicated to the counsel that the hearing of the suit would be on Tuesday, July 14.

A lawyer privy to the communication but who pleaded anonymity said the hearing has been fixed for tomorrow but the apex court can decide to give its ruling immediately.

‘Yes, the communication has been passed that the hearing is for tomorrow. But since it is the Supreme Court, it can hear the case and decide to give judgment tomorrow too.’

Already Diri and top chieftains of the PDP have relocated to Abuja to monitor proceedings.

Supporters of Alaibe and Diri have been engaging in a verbal war on Facebook over the winner of the said primaries.

Supporters of Alaibe had questioned the rationale behind a sponsored documentary on the PDP primaries on some national television stations, while supporters of Diri insisted that there is no harm in airing the documentary to remind people that Diri convincingly won the governorship primaries.

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