Attorneys-General of Nigeria’s South West Zone came under searing attack today over plans by the State chief law officers to seek a constitutional interpretation of virtual court hearings.

CITY LAWYER had in an exclusive report noted that there was a move by the six South West attorneys-general to approach the Supreme Court for an interpretation of section 36(3) and (4) of the 1999 Constitution as it relates to virtual court hearings.

Ekiti State Attorney-General & Commissioner for Justice, Mr. Olawale Fapohunda had informed participants at a webinar last Wednesday that the Attorneys-General resolved during a maiden virtual conference to head to the Supreme Court to seek resolution of the controversial virtual hearing provision contained in the National Judicial Council (NJC) Guidelines and sundry Practice Directions issued by heads of courts.

But no sooner had the CITY LAWYER report hit the newsstands than some senior lawyers lampoon the move by the attorneys-general.

Firing the first salvo, foremost Economic and Financial Crimes Commission (EFCC) prosecutor, Mr. Rotimi Jacobs SAN wondered whether the suit would not be a mere academic exercise. He said: “Would the action not be academic?” Continuing, he asked: “Can the Supreme Court entertain academic question not based on any live issue?”

Aligning with Jacobs, Mr. Ayodeji Esan said: “My thoughts exactly. What disputes and between which parties would the court be called upon to adjudicate? Who are the defendants?”

While leading litigator, Mr. Adebayo Adenipekun SAN felt that the issue of parties may be resolved, he aligned with both jurists on the thorny issue of the dispute to be presented to the apex court for resolution. His words: “I have a feeling they will make the Attorney-General of the Federation the defendant. The question will still be ‘what is the dispute?’”

However, speaking at today’s webinar on “Engagement on the Federal High Court Practice Directions and the Protocols on Virtual Hearings 2020” organized by the Nigerian Bar Association (NBA), Lagos Branch, the Administrative Judge of the Federal High Court (Lagos Division), Justice Muhammad Liman was unsparing in thumping down the move by the attorneys-general.

Describing the move as “cavalier,” the leading jurist said: “I do not think the attorneys-general need to go the Supreme Court for any interpretation,” adding that aside from the fact that the NJC did not have the power to make rules for the courts, there was a need to distinguish between the Right to Fair Hearing and public access to court hearings.

Justice Liman stated that both concepts cannot be lumped together, adding that while public hearing “is the limited opportunity the Constitution affords everyone to court hearing,” the challenge thrown up by virtual hearing “is not a serious problem that cannot be ameliorated.”

Aligning himself with Justice Liman’s distinguishing of the two concepts, former Lagos State Attorney-General & Commissioner for Justice, Mr. Olasupo Shasore SAN said that “publicity is the soul of justice.” Citing several judicial authorities, Shasore said the intendment is “to remove the possibility of arbitrariness” and to ensure that the public “have an opportunity of judging the judges.”

Dwelling specifically on constitutional interpretation, the former Lagos State chief law officer cited NAFIU RABIU V STATE in reading the mind of the Supreme Court on constitutional interpretation. “It is an organic document and it does not provide for everything,” he said, adding however that there is a tendency for the courts to seek strict interpretation of the Constitution and statutes.

Other speakers at the NBA Lagos Branch webinar included Mr. Wale Akoni SAN, Mr. Babajide Ogundipe and Mr. Yemi Akangbe.

Speaking at an Attorneys-General Colloquium on “Remote hearing and e-filing in Nigeria: A broader perspective and practical, foolproof implementation,” Fapohunda had said that the Attorneys-General of Lagos, Ondo and Oyo States would on Thursday file a suit at the Supreme Court to test the constitutionality of remote hearings.

His words: “Since the National Judicial Council issued its Guidelines for court sittings in this COVID-19 period, we have had a national conversation particularly among justice sector stakeholders on the constitutionality or otherwise of remote court hearings.”

Continuing, the leading justice reform advocate said: “Let me however quickly use this opportunity to inform participants that following a resolution of the South West Attorneys-General, the Attorneys-General of Lagos, Ondo and Oyo States have decided to approach the Supreme Court to seek a constitutional interpretation of Section 36(3) & (4) of the 1999 Constitution, particularly as it relates to remote court hearings. We will be filing the necessary papers in the Supreme Court tomorrow.”

Fapohunda, who was the Host of the webinar organized by Ekiti State Ministry of Justice and LawPavilion, added that “We are convinced that a definite pronouncement by the Supreme Court is necessary in order to put the matter at rest once and for all.”

Since the issuance of the NJC Guidelines and several Practice Directions on virtual court hearings, some jurists have argued that virtual hearings violate Section 36(3) and (4) of the 1999 Constitution on the requirement that court hearings must be held in public.

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