Introduction
It is not often that a
lawyer gets the opportunity to disagree with the views of a judge. Indeed by
the nature of the legal profession which we inherited from the English, apart
from the avenue of appeal against unfavourable decisions of judicial officers
provided by the Constitution, all lawyers are required to respond to the views
and decisions of judges by chorusing the customary, ‘as the court pleases’. But
as they say, sometimes Christmas comes early. A report I read in Thisday
Newspaper of Sunday 17th May 2020, has provided me a channel to express my
dissent not just from the views of several judges but also from those of a very
senior lawyer!
The Thisday
Newspaper Report
In the report titled,
‘Judges Oppose Virtual Court Sitting, Say it’s Unconstitutional’ by Tobi
Soniyi, the writer reportedly interviewed certain judges on conditions of
anonymity to get their Lordships’ views on the introduction of virtual hearings
in the wake of the COVID-19 global pandemic. The summary of the report is that
these judges concluded that, just like the Supreme Court recently nullified the
conviction of Ude Udeogu on grounds that Justice M. B. Idris was no longer a
judge of the Federal High Court and the trial was therefore unconstitutional
and a nullity, the apex court was also likely to set aside trials that were
conducted via virtual platforms, on grounds that they were not held in public,
and therefore unconstitutional and a nullity. For the reasons stated below, I
fundamentally disagree with this characterisation.
The writer referred to the
provisions of Section 36 (3) and (4) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended) which prescribes that all trials must be
held in public, and expressed the view, on the strength of the feedback from
the judges, that the proposed virtual court hearings via Zoom or Skype for
instance, would in all likelihood contravene the Constitution. More interesting
is the fact that the writer referred to a previous decision of the Supreme
Court in support of the position, the case of Edibo v. The State (2007)
13 NWLR (Pt. 1051) p. 306 where the Court set aside a conviction of a
defendant by a trial court because the arraignment of the Appellant was not
done in a public place.
The above report, especially
its reliance on this case, has finally given me an avenue to discuss the near
complete erosion of the concept of ratio decidendi in Nigerian law,
which is symptomatic of an alarming deterioration of legal scholarship in
Nigeria among law students, lawyers, law teachers, Law Report editors and,
sometimes, even judges.
The Concept of Ratio
Decidendi
For the sake of the
uninitiated, Nigeria belongs to the legal clan of countries that practice the
Common Law system, and the bulk of the law practiced in Nigeria was received
from England. A chief feature of this Common Law system is the doctrine of stare
decisis [or judicial precedent] which literally translates as let the
decision stand. For this doctrine to be effectively applied, every judgment is
typically divided into two parts: obiter dictum and ratio decidendi.
The former constitutes the non-binding part of the judgment while the latter,
which literally interprets as the reason for the decision; the reasoning behind
arriving at a particular verdict by a Judge, is the part that has binding
effect. This is the law which we inherited.
In recent times however, it
appears to have been completely forgotten that not all parts of a judgment of a
court are of binding effect on lower courts. Indeed arguments began to emerge
in the past decade that the obiter dictum of the Supreme Court is binding. That
was of dubious provenance. Thankfully the Supreme Court quashed such reasoning
in the case of Adebayo & ORS. v. PDP & ORS (2013) LPELR-20342(SC).
In the places where we copied
our laws from, and indeed here in Nigeria [in time past], when a judgment is
delivered, the judgment would be studied to determine what is the ratio. Law
reporters for instance would distil the ratio from the decision and report it
for future use. This is admittedly no mean exercise. An illustrative example is
the recent article by Aaron Taylor, ‘In Search of the Ratio Decidendi’ LQR 2019
135 (Oct) 556 – 561 where the author traced the efforts of the English Court of
Appeal in defining what constituted the ratio decidendi in the case of R.
(on the application of Youngsam) v Parole Board [2019] EWCA Civ 229; [2019] 3
W.L.R. 33.
The point being made is that
what ought to be cited to a court as authority or judicial precedent is only
the binding part of the judgment, the ratio. Regrettably, what transpires in
Nigeria today is that once a court delivers a judgment, no one is interested in
finding out what the ratio is, the law reports will simply reproduce the
judgment and release what they term “holding” or “held”. No analysis and no
attempt is made to distil the ratio. Lawyers on their part wantonly single out
phrases in a judgment and cite before a court under the stare decisis
doctrine. Ultimately, some judges, for obvious reasons, make no attempt to distil
the ratio but swallow hook, line & sinker, both the ratio decidendi
and the obiter of decisions referred to them.
Practise has persisted
despite judicial warning
Incidentally a warning
against this practice was issued almost thirty years ago by the venerable
Chukwudifu Oputa, JSC in Adegoke Motors vs. Adesanya (1989) 3 NWLR
(Pt. 109) 250 at pages 274 – 275 when His Lordship issued the following
immortal words:
It also appeared in rather
bold relief that there is now a tendency among our lawyers, and sometimes among
some of our Judges, to consider pronouncements made by Justices of the Supreme
Court in unnecessary isolation from the facts and surrounding circumstances of
those particular cases in which those pronouncements were made. I think it
ought to be obvious by now, that it is the facts and circumstances of any given
case that frame the issues for decision in that particular case. Pronouncements
of our Justices whether they are rationes decidendi or obiter dicta must
therefore be inextricably and intimately related to the facts of the given
case. Citing those pronouncements without relating them to the facts that
induced them will be citing them out of their proper context, for, without
known facts, it is impossible to know the law on those facts.
Regrettably, this warning
has gone largely unheeded. This is despite the fact that the Supreme Court has
consistently reaffirmed that position of the law. In the more recent case of Akeredolu
v Abraham (2018) LPELR-44067(SC), the apex court restated that, “it is
trite that legal principles established in decided authorities are not to be
applied across board and in all matters without regard to the facts and issues
submitted for adjudication in a particular case.” The Court referenced its
earlier decision in Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 55 where
it was stated that a judgment should always be read in the light of the facts
on which it was decided and that the rules of stare decisis do not allow
courts to apply the ratio of a case across board and with little regard to the
facts of the case before them. The Court further placed reliance on Okafor v
Nnaife (1987) 4 NWLR (pt 64) 129, Udo v The State (2016) LPELR – 40721 (SC).
Similarly it is a trite
principle in both English and Nigerian laws that each case remains authority
for what it decided. Therefore, an earlier decision will only bind subordinate
courts in a subsequent case if the facts and/or the law which informed the earlier
decision are the same or similar to those in the subsequent case. Where the
facts and/or the legislation which are to inform the decision in the subsequent
case differ from those which informed the court’s earlier decision, the earlier
decision cannot serve as a precedent to the subsequent one.
There is a plethora of
Nigerian decisions that support this principle including Godwin Ugwuanyi v
NICON Insurance Plc (2013) 11 NWLR (pt 1366) 546, Clement v Iwuanyanwu (1989) 3
NWLR (pt 107) 39 and Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (pt
864) 580, Fawehinmi v NBA (No. 2) (1989) 2 NWLR (pt 105) 558, Western Steel
Works Ltd & Anor v Iron Steel Workers Union of Nigeria & Anor (1987) 1
NWLR (Pt. 49) 284, Skye Bank Plc & Anor v Chief Moses Bolanle Akinpelu
(2010) 9 NWIR (pt 1198) 170.
It is against this backdrop
that I invite you to embark on this journey with me to dispassionately consider
the facts and circumstances of the case of Edibo v. The State using
Section 36 (3) and (4) of the Constitution as the prism. In the end I hope to
convince you that the decision of the Supreme Court in that case is not good
authority for the contention by the judges or some other senior lawyers that
virtual trials do not come within the meaning of trials in public; or that they
are unconstitutional and therefore constitute a nullity under Nigerian law. Let
us begin with a look at the constitutional provisions at issue.
The Constitutional
requirement for Trials in Public
Section 36 (3) and (4) of
the Constitution are reproduced in all their glory below:
36“(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…” emphasis supplied.
In view of the employment of
the peremptory word ‘shall’ by the drafters of the Constitution, the judges,
according to the report, argued that the requirement for public hearing and
determination of cases in Nigeria is mandatory. That is beyond disputation. The
bone of contention is, what constitutes a hearing conducted in public?
The case of Edibo v. The
State
In Edibo v. The State
the appellant, then a police officer, Insp. Simon Edibo, was one of ten persons
charged before the Benue State High Court in Makurdi, with the commission of
the offence of culpable homicide arising from a case of mistaken identity which
happened in 1997. It was not disputed that the plea of the appellant, who was
the 5th accused person at the trial, was taken on the 19th of January 1998 in
the Chambers of the Honourable Justice A. J. Ikongbeh. At the end of the trial,
the appellant and the 4th accused person, A.S.P. David Joshua (who subsequently
died) were each found guilty and convicted of culpable homicide and sentenced
to death. The appellant appealed to the Court of Appeal which promptly
dismissed his appeal, culminating in his ultimate appeal to the Supreme Court.
Thus, one of the issues posed to the Supreme Court was whether the Court of
Appeal was right when it held that taking the plea of the appellant in the
Chambers of the learned trial Judge was not unconstitutional.
In its consideration of this
issue, the Supreme Court in the lead judgment delivered by Tabai, JSC admirably
analysed some of its previous decisions on the question of trials in public,
including Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; Oviasu v. Oviasu
(1973) 11 SC 187; N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR
(Pt. 413) 257 at 273; and Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 and came
to the conclusion that the taking of the appellant’s plea in the Chambers of
Ikongbeh J. was unconstitutional.
In Oyeyipo v. Oyinloye what
transpired was that the Supreme Court acted pursuant to its powers under the
Rules of the Supreme Court, heard and granted in Chambers, an
uncontested application to dismiss an appeal for want of diligent
prosecution, owing to the appellant’s failure to file the appellant’s brief of
argument within the period prescribed by the Supreme Court Rules. Similarly, in
Chime v. Ude, the Supreme Court suo motu and sitting in Chambers
dismissed an appeal pursuant to its powers under Order 6 rule 5(2) of the
Rules of the Supreme Court, once again due to the failure of the
appellants to file their brief of argument as and when due. When the
appellants thereafter filed an application seeking to set aside the dismissal
of their appeal, the Supreme Court dismissed the appeal.
On the other hand, what
transpired in Oviasu v. Oviasu, a matrimonial cause, was that the trial
took place in the Chambers of the trial Judge. Neither the parties nor their
counsel requested for the hearing in Chambers. At the conclusion of the
hearing, the learned trial Judge dissolved the marriage. On appeal the Supreme
Court allowed the appeal, set aside the judgment and ordered a trial de novo.
The basis for the decision was that the trial, having not taken place in
public, was fundamentally irregular. In N.A.B. Ltd. v. Barri Engineering
(Nig.) Ltd, the trial was conducted in public, however at the end of trial,
the court for inexplicable reasons invited both counsel into his chambers
and delivered the judgment wherein he granted all the reliefs claimed by
the plaintiff.
Aggrieved with this
procedure and the judgment, the appellant appealed to the Court of Appeal which
dismissed appeal. On ultimate appeal to the Supreme Court, the judgment was set
aside on the ground of constituting a nullity and a retrial was ordered. The
Court in particular held that the learned trial Judge committed a fundamental
breach of the provisions of section 33(3) and (4) of the 1979 Constitution [which
is in pari materia with provisions of Section 36 (3) and (4) of the 1999
Constitution] and that the said breach vitiated the entire proceedings at the
trial court.
The Ratio Decidendi of Edibo
v. The State
On the strength of the above
analysis, the Supreme Court in Edibo v. The State then proceeded to
issue what must be accepted as the ratio decidendi for its decision. The
court held that in view of the fact that the arraignment of an accused person
is the very commencement of a criminal trial; in light of the fact that any
criminal trial, no matter how well conducted, without the plea of the accused
person first and properly taken is a nullity; and since the proceeding of the
19th of January 1998, wherein the plea of the appellant and others were taken
in the Judge’s chambers was not only irregular, but also fundamentally
defective in the absence of any rule of court authorising Ikongbeh J. to take
the plea of the appellant in his Chambers; the inevitable conclusion was that
the entire proceedings were rendered null and void and the Court of Appeal was
therefore wrong to have upheld the trial and conviction of the appellant.
It is instructive that in
the case, the definition of public within the meaning of the
constitutional provision at issue is contained in the concurring judgment of
Tobi JSC where his Lordship stated thus, “[p]ublic means, for the use of
everyone without discrimination. Anything, gathering or audience which is not
private is public.”
Further, in a contributing
judgment, Ogbuagu JSC while deciding that a Judge’s Chambers does not qualify
as a public place stated that; “[s]urely and certainly, a Judge’s Chambers, is
not and cannot be equated to a hall in a public building that is used for
formal meetings.”
What the Supreme Court did
not decide in Edibo v. The State
As the above referenced
decisions of the Supreme Court have shown, it is neither the law that all
proceedings of court must be held in open court nor is it correct that no
proceedings can validly take place in the Chambers of a Judge. It all depends
on the peculiar facts and circumstances of each individual case.
Further, the various dicta
of the Supreme Court Justices are not sufficient to state that Edibo v. The
State is authority for the proposition that all court hearings or trials
must take place in a physical hall or building. The question of whether all
trials must take place in a physical building was certainly not one of the
issues formulated for the court’s determination in that case. Accordingly, the
reference to “a hall in a public building” in the judgment of Ogbuagu JSC was a
classic obiter dictum contained in a concurring judgment which was merely
uttered in the process of distinguishing between a Judge’s Chambers and a
courtroom to enable the court arrive at its decision that the trial was a
nullity.
In light of these, a number
of questions become pertinent in determining whether virtual trials conform
with the constitutional requirement that trials must be held in public, to wit:
what constitutes hearing conducted in public? Are hearings conducted via
virtual platforms, conducted in public? Must hearings take place in a physical
building to be deemed as having been conducted in public? Must the public have
physical access to the location of the hearing for it to conform with
constitutional standards?
Of all these questions, only
the first was considered and answered by the Supreme Court in Edibo v. The
State and that answer was given in the specific context of whether a
hearing which took place in the Chambers of a Judge ought to be deemed a
hearing in public. Nothing more, nothing less.
Having shown that the
Supreme Court did not decide that all trials must take place in a physical
building in Edibo v. The State it appears to me that the writer and the
[anonymous] judges fell into the error of reading into the word public found in
section 36(3) & (6) of the Constitution, the requirements of a physical
building which is clearly not contained in that section.
Chief Adegboyega Awomolo,
SAN’s intervention
While writing this article,
I came across a commentary by a very distinguished member of the bar, Chief
Adegboyega Awomolo, SAN on this pressing issue titled, ‘Virtual Court Hearing
Does Not Pass the Test For Proceedings Conducted in Public; There is Need for
Constitutional Amendment’ where the learned Silk contended that virtual court
hearings do not pass the constitutional tests of proceedings conducted in
public. The surprising thing is that he relied in part on the same Edibo v.
The State as well as the above referenced cases highlighted therein in arriving
at his conclusion. It is once again submitted for the reasons already provided
that the various dicta of the Supreme Court Justices in Edibo v. The State
are not determinative of issue of whether virtual hearings pass the
constitutional test for hearings in public.
Academic Writings on Hearing
in Public
Additionally the learned
Silk referred to the views of some learned authors on the meaning of hearing in
public. The first was Fidelis Nwadialo who in his book, Civil Procedure in
Nigeria, 2nd Edition, posited at page 674 thereof that, “hearing in public
entails a situation where the public is not barred… A trial is sufficiently
public if members of the public may have access to where it is taking place.
The actual presence of the public is, however, not necessary.” The second was
those expressed by J. A Agaba at page 524 of his book, Practical Approach to
Criminal Litigation in Nigeria, to the effect that, “the “public” here refers
not only to a formal courtroom but it must be a place where there is access by
the public.”
It appears to me that the
views of these distinguished authors, which constitute a secondary but
nevertheless important source of law in Nigeria, do not support the conclusion
reached by the learned Silk. On the contrary, in addition to the questions I
posed above, all these writers have said is that a trial would conform with
constitutional standards so long as members of the public have access to where
it is taking place and such place needs not be a formal courtroom! There is no
valid reason why a trial conducted virtually cannot comply with this
requirement.
It is gratifying that Chief
Awomolo SAN concedes that “public place” does not necessarily entail a
proceeding conducted within the four walls of a courtroom. His main grouse is
that virtual court proceedings do not have the feature of being accessible to
everyone without any hindrance of any sort, a well founded concern but which
can be, and indeed has been, addressed as will be demonstrated presently.
This concern accords with
the view of the aforementioned judges that since many Nigerians do not have
access to smart phones and data to access the virtual court hearings, then it
cannot be said that the hearings are without hindrance. In response, I have to
ask whether all Nigerians have the financial means to physically attend court
hearings especially those that take place at the Supreme Court in Abuja? If the
answer is in the negative, can it then be contended that the Supreme Court
hearings are unconstitutional? The answer is in the question.
It has been argued, and
rightly too in my opinion, by the likes of Mr. Tunde Fagbohunlu, SAN that
virtual court hearings [especially those without password requirements and
which can be streamed to the general public] are more “public” than any
physical court hearing, having regard to the well-known limited capacity of all
courtrooms in Nigeria.
The correct approach to
constitutional interpretation
One other argument by the
writer of the Thisday report is that the judges expressed the view that the
Supreme Court is known to be illiberal and inflexible in the interpretation of
the Constitution. With respect that position is at best uncharitable, having
regard to a long line of Supreme Court decisions to the effect that the
Constitution must be given an expansive interpretation, and at worst, patently
wrong.
There is a long line of
authorities of the Supreme Court where the Apex Court in no unclear terms
outlined what constitutes the Nigerian judicial approach to the interpretation
of constitutional provisions. Perhaps the most profound of these can be found
in the prescient words of Udo Udoma JSC in Nafiu Rabiu v. The State (1981) 2
N.C.L.R. 293, 326 where His Lordship held thus:
“My Lords, in my opinion, it
is the duty of this court to bear constantly in mind the fact that the present
Constitution … is a written organic instrument meant to serve not only the
present generation, but also several generations yet unborn … that the function
of the Constitution is to establish a framework and principles of government,
broad and general in terms, intended to apply to the varying conditions which
the development of our several communities must involve, ours being a plural,
dynamic society, and therefore, mere technical rules of interpretation of
statutes are to some extent inadmissible in a way so as to defeat the
principles of government enshrined in the Constitution. And where the question
is whether the Constitution has used an expression in the wider or in the
narrow sense, in my view, this court should whenever possible, and in response
to the demands of justice, lean to the broader interpretation, unless there is
something in the text or in the rest of the Constitution to indicate that the
narrower interpretation will best carry out the objects and purposes of the
Constitution. My Lords, it is my view that the approach of this court to the
construction of the Constitution should be, and so it has been, one of
liberalism, …”
The constitutionality of the
Guidelines and Practice Directions
The final and perhaps most
important basis on which this writer fundamentally disagrees with the views of
the judges and that of the distinguished learned Silk is that inadequate
consideration was accorded to the existence of the Guidelines and Practice
Directions authorising the courts to conduct hearings virtually.
Indeed the National Judicial
Council on 7 May 2020, issued Guidelines for Court Sittings and Related Matters
in the COVID-19 Period which authorised virtual or remote sittings. Before
then, the Chief Judge of Lagos State had signed the “Lagos State Judiciary
Remote Hearing of Cases (COVID-19 Pandemic Period) Practice Direction” which
came into effect on 4 May 2020. There is also the Federal High Court Practice
Directions 2020 For the COVID-19 Period which came into force on 18 May 2020
and a host of other Practice Directions.
In the case of the Thisday
report, the judges consistent with their view [albeit an erroneous one in my
opinion] that virtual hearings are unconstitutional, proceeded to posit that
the heads of courts have no powers to make Practice Directions that contravene
constitutional provisions. On his part, Chief Awomolo, SAN merely referred to
the Lagos State Practice Direction, particularly Articles 14, 15, 16, 17 and 18
thereto, which provide that virtual court proceedings will be open to the Judge,
respective litigants and their counsel, and concluded that same was
unconstitutional to the extent that they purport to exclude the general public.
It is instructive to note
that the said Lagos State Practice Direction did not expressly exclude the right
of the general public to access its virtual Court hearings and even if it did,
such provision (and not the entire Practice Direction) shall to the extent of
its inconsistency with section 36(3) and (4) CFRN 1999 be null and void using
the blue pencil rule. In the absence of any provision purporting to exclude the
rights of the general public, the Practice Direction must be interpreted to
recognise the general public’s right to observe the proceedings.
Further, and for the
avoidance of doubt, the National Judicial Council Guidelines for Court Sittings
and Related Matters in the COVID-19 Period expressly recognise the right of the
general public to access virtual Court hearings by providing in Item E 12 (a)
and (b) that Heads of courts shall ensure that there is live streaming of all
virtual court proceedings through a publicized Uniform Resource Locator (“url”
or “web address”) or the court’s or any other social media channel so that
members of the public can observe the proceedings; and that the details of
the virtual court sittings shall be published in the usual manner that the
court generally publishes its regular sittings provided that such publications
shall specify the nature of the sitting and shall indicate the web address or
social media channel where there would be live streaming of the proceedings.
In view of the above and
considering the fact that part of the ratio decidendi of the decision of
the Supreme Court in arriving at its decision in Edibo v. The State was
the difference between the two lines of cases, I am confident that the Supreme
Court will also uphold the constitutionality of virtual hearings conducted
pursuant to the NJC Guidelines and the Practice Directions. As earlier
highlighted, the Supreme Court relied in part on the fact that the Rules of its
Court authorised it to sit and hear uncontested applications in chamber in
arriving at its decision to uphold the proceedings in Oyeyipo v. Oyinloye and
Chime v. Ude.
On the flipside the Supreme
Court also relied on the fact that there were no rules of court authorising the
judges in Oviasu v. Oviasu, and N.A.B. Ltd. v. Barri Engineering
(Nig.) Ltd to hear a matrimonial cause in chambers and deliver a judgment
in chambers respectively, in arriving at its decision to nullify the
proceedings as being unconstitutional.
I therefore make bold to say
that the NJC Guidelines and the Practice Directions issued by the National
Judicial Council and the heads of the various courts respectively, authorising
courts to conduct trials and hearings virtually will serve to ensure that these
trials scale the constitutional hurdle of conducting trials in public. On a
lighter note I am curious to see the panel of the Court of Appeal that will set
aside a virtual trial conducted by a High Court under the new Practice
Directions and the NJC Guidelines issued under the hand of the Chief Justice of
Nigeria.
Conclusion
The summary of all that has
been said is that I strongly disagree with the view that virtual court
proceedings as contemplated by the NJC Guidelines and various court Practice
Directions, offend the extant provisions of the 1999 Constitution. In
particular I have given reasons why the case of Edibo v The State should
not be bandied as authority for that view. In the final analysis, this writer
posits that there is need for lawyers, law reports and indeed judges to revert
to the mentally exhausting but ultimately beneficial exercise of x-raying
judgments to determine the ratio decidendi. This is only way we can
prevent the disappearance one of the fundamental tenets of the law which we
practice.
Orji Agwu Uka
A Legal Practitioner
who writes from Lagos
And tweets from
@OrjiUka
Source : LinkedIn