There was controversy when Justice Mohammed Liman issued an ex-parte order from the United States of America on the Kano Emirate dispute. Governor Abba Yusuf faulted the order. What does the law say about virtual hearings? Is an order made outside jurisdiction valid? ADEBISI ONANUGA spoke with legal experts.
Many are eagerly awaitin the outcome of the National Judicial Council (NJC) findings on the conflicting orders issued by courts of co-ordinate jurisdiction in Kano State.
Two courts on May 28 gave conflicting orders involving the Emir of Kano Sanusi Muhammadu Sanusi II.
The first ruling by Justice S. A. Amobeda of the Federal High Court ordered Sanusi’s eviction from the palace.
The second order by Justice Adamu Aliyu of the State High Court restrained security agencies from evicting Sanusi or seizing his symbol of authority.
Justice Amina Aliyu of the Kano High Court on May 27 ordered the police to evict the deposed Emir Ado Bayero from the Nasarawa Palace.
The judge issued an interim injunction restraining Bayero and the emirs of Bichi, Rano, Gaya and Karaye from parading themselves as monarchs.
Earlier on May 24, Justice Liman of the Federal High Court in Kano granted an order restraining the state government from enforcing the Emirate Council Repeal Law that reinstated Sanusi.
Nigerian Bar Association (NBA) President Yakubu Maikyau (SAN) faulted the conflicting orders.
He said: “The conduct of counsel and the courts in the handling of the proceedings which culminated in the orders issued by the Federal High Court, the Kano State High Court and again the Federal High Court, in circus, have brought utter disgrace and shame to the profession and have exposed the entire legal profession in Nigeria to public ridicule and opprobrium.
“The damage is one that would take the legal profession a long time to recover from. It is unfortunate and was totally uncalled for.”
The NJC ordered a probe, summoning the Federal High Court Chief Judge, Justice John Tsoho, and Chief Judge of Kano, Justice Dije Aboki, to appear before Chief Justice Olukayode Ariwoola on May 29.
The outcome of that meeting has not yet been made public.
The first order by Justice Liman irked Governor Abba Yusuf, who believed the judge granted the order illegally since he was out of the country.
The governor, in the Hausa version of his speech, while presenting the letter of reappointment to Sanusi, said Justice Liman was not physically present in court to stop the reinstatement.
“The person (Justice Liman) that issued the court order was in America but he is ordering us to stop what we are doing.
“This issue of abuse I must present before the Governor’s Forum so that we can tackle it accordingly.
“We are agents of following due process, that’s why we did what we did openly before everybody. Those that are meant to maintain that rule of law must follow that also.”
What the courts have said
While the law permits the taking of evidence from witnesses in virtual proceedings, some were at a loss as to whether a judge can deliver a ruling and issue restraining orders from out of the country, outside jurisdiction.
In 2020, a seven-man panel of the Supreme Court led by Justice Olabode Rhodes-Vivour ruled that virtual court sittings were not unconstitutional, null or void.
The verdict was made during the hearing of separate suits filed by the Attorneys-General of Lagos and Ekiti on the adoption of remote hearings by judges in their states.
According to the panel, the suits were speculative as they did not disclose how virtual proceedings had negatively affected the interest or right of anyone.
Members of the panel dismissed the fear said to be entertained by many judges as to the constitutionality of remote hearings.
They maintained that the chief judges who had issued practice directives to provide for virtual sitting when convenient had the duty to enforce them.
The term virtual means “online” and, loosely, anything related to computers.
It is a substitute for “online,” “digital”, “internet” and “not physical.”
Going by the definition, the location of the judge may not matter.
Adapting to COVID-19
The outbreak of COVID-19 necessitated the use of remote hearing to ensure cases were heard and disposed of urgently.
The CJN had set up a 10-man committee headed by Justice Rhodes-Vivour to come up with strategic measures to ensure courts continued to function despite the lockdown.
The committee recommended the use of technology by way of virtual sitting in court proceedings.
Both the CJN and NJC approved it.
The NJC then released Guidelines for Court Sittings and Related Matters in the COVID-19 Period.
Justice Mojisola Dada, in the first virtual judgment delivered on May 4, sentenced Olalekan Hameed to death via Zoom, an application for online video conferencing.
Hameed, a driver, was tried for the murder of his employer’s mother, 76-year-old Mrs Jolasun Okunsanya, on December 1, 2018.
Staring at a computer screen from an office at a Lagos Correctional Centre, Hameed learned his fate via the video conference call: that he was to die by hanging.
It was the first time a defendant would appear remotely from prison via Zoom in Nigeria.
The virtual hearing may have come to stay.
The proceedings in the Hameed case were approved by Lagos State Chief Judge, Justice Kazeem Alogba, in line with the State Judiciary Remote Hearing of Cases Covid-19 Pandemic Period Practice Directions.
The Federal High Court also issued the Practice Directions 2020 for the COVID-19 Period, of which Part F provides: “Virtual proceedings can either be by Zoom, Skype or any other audio-visual platform approved by the court.”
Some have questioned the legality of virtual hearings.
Some who have expressed their reservations over this decision hinge their opposition on Section 36 (3) and (4) of the Constitution.
It provides: “(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…”
Some question whether a court hearing through Zoom or Skype qualifies as being held in a public place.
Others believe court proceedings or hearings conducted via social media platforms or technological innovation would be deemed illegal until a bill is passed into law that indicates otherwise.
Lack of adequate technology and connectivity challenges have also come into play, as well as a lack of competencies among some lawyers in the use of online resources and digital platforms.
Issues for clarification
The Kano emirate matter raised a fundamental question: Can a judge make an order virtually in America?
Legal experts held divergent views.
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They included Chief Louis Alozie (SAN), Emeka Etiaba (SAN), Kunle Kalejaiye (SAN), Prof. Damilola Olawuyi (SAN), the Executive Director, Crime Victims Foundation of Nigeria, Mrs Gloria Egbuji and a former member of the Ogun State Judiciary Commission, Abayomi Omoyimi.
‘Order out of order’
Alozie faulted Justice Liman’s virtual order, saying it was “wrong and cannot be defended”.
He added: “Yes, courts do conduct virtual hearings.
“But in all cases I know, starting from the COVID-19 era, the judge sits in open court or chambers, assisted by clerks of court who bring up the files and call up the cases.
“Counsel for the parties can appear from their respective chambers, robed.
“The essence of this is to avoid infection by the COVID virus.
“Again, parties out of jurisdiction can be heard from, giving their evidence from their base out of jurisdiction.
“In this case, if the judge was in the USA, why was the matter assigned to him, instead of to the judges who were around?
“Who told him of the case and how urgent it was?
“Who transmitted the filed processes to him? Who drew up the order? and after proceedings, sent it back to him for signature?
“It all has the appearance of an arranged thing. Whether he has the jurisdiction to sit in the U.S. and issue such orders is debatable.
“To my mind, I don’t think it is proper.”
‘CJN must deal with the needless confusion’
Etiaba holds a different view, saying the rules permit virtual sitting.
“The application could be heard virtually (even from the USA) but the order ought to be signed by him and not superimposed, forged, or signed on his behalf.
“Based on the case of Tukur v Government of Gongola State, the State High Court is the court empowered with the jurisdiction to entertain the matter and with the invitation of the judges by CJN, the needless confusion will be dealt with,” he said.
For Kalajaiye, the scenario that played out in Kano appears to be without precedence.
He noted that a judge conducting a virtual hearing from outside jurisdiction and making orders virtually was unusual.
“Hitherto, what we have been used to is courts conducting virtual hearings from within jurisdiction and making valid orders.
“In my view, the location of the judex would not matter so far as the matter heard is one of those that could be taken virtually and is within the court’s jurisdiction.”
He, however, believes that the Kano matter is one touching on Chieftaincy and clearly, is outside the jurisdiction of A Federal High Court.
‘Conflicting orders unfortunate’
Prof Olawuyi described the events in Kano as unfortunate and another sad reflection of the level of decay and rot in the judicial system.
He said: “We have only one judiciary in Nigeria and judges at all levels are expected to function as part of one coherent and harmonious system.
“Instead, contradictory and conflicting court orders are flying all over the place, with allegations that a Federal High Court Judge is making orders from outside of the country virtually.
“This by itself raises fundamental questions as the NJC Guidelines for Virtual Court Proceedings (2020) clearly mandates that though virtual hearings are permitted in certain circumstances, such as urgent matters; for interlocutory applications, pre-trial conferences and simple civil cases, the judge, lawyers and parties involved in the matter must be within Nigeria’s borders to participate in virtual court proceedings.”
To him, an order made virtually from outside of the country is, therefore, invalid and should be easily set aside as having no effect whatsoever.
“Secondly, even a first-year law student will tell you categorically that the Federal High Court lacks jurisdiction to adjudicate on state traditional and chieftaincy matters.
“To lack jurisdiction on a matter equally means that an interim order granted by a judge, knowing that they lack jurisdiction to hear the matter, will in my view be tantamount to judicial malpractice and abuse of authority and court process.
“Of course, there have been arguments that the Federal High Court has jurisdiction on human rights matters and that human rights questions have been raised in this case.
“However, it is crystal clear that the subject matter and main gist of the case is the Kano State Emirates Council (Repeal) Law 2024, and not fundamental rights.
“There are human rights issues in virtually all cases, including labour and election matters.
“Shall we then go to the Federal High Court for election matters in the guise of fundamental human rights?
“Or shall we erode the jurisdiction of the Industrial Court on the basis of enforcing fundamental rights?
“The Supreme Court has clarified the jurisdiction of the Federal High Court in several cases and has held that a court cannot, either by mistake or misunderstanding confer itself with statutory jurisdiction that it does not have.”
‘Why NJC must sanction erring judge’
The learned silk, who is the Deputy Vice-Chancellor of Afe Babalola University, Ado Ekiti (ABUAD), argued that wanton disregard for precedents of the Supreme Court as well as the NJC Guidelines for Virtual Court Proceedings by a judicial officer is a gross professional misconduct that warrant in-depth evaluation and review.
“If the judiciary cannot respect its own rules and judgments, then we are set for an era of judicial rascality and lawlessness which will significantly erode confidence in the integrity and sanctity of the Nigerian judiciary.
“The way forward is for the NJC to urgently step in to review the role of the judiciary in the ongoing impasse in Kano and where judicial misconduct is found, there is a need to impose far-reaching sanctions on erring judges in order to set the record straight, correct ethical missteps and prevent future reoccurrence.
“There is also a need to accelerate and invest more in judicial education, ethical training and mentoring programs that will better equip judges to maintain the dignity of their office and to avoid both impropriety and the appearance of impropriety at all times in the exercise of their functions,” Prof Olawuyi said.
‘Jurisdiction crucial’
Mrs Egbuji said the validity of a court order made from outside Nigeria generally depends on several factors, including the nature of the legal matter and Nigerian law.
She argued that for a court order from the United States to be valid and enforceable in Nigeria, it typically must go through a process of recognition and enforcement under Nigerian law.
“The jurisdiction of the court issuing the order is crucial and the process by which the order was obtained must respect due process principles.
“This includes proper notice to the parties and a fair opportunity to be heard.
“While an order made virtually can potentially be recognised in Nigeria, it must meet specific legal criteria under Nigerian law, and the process typically involves a Nigerian court reviewing and approving the foreign judgment for enforcement within Nigeria,” Egbuji said.
‘Virtual judgments valid subject to rules’
Omoyinmi said since the rules allow for virtual hearings, judges can also issue orders from outside the jurisdiction.
To him, it will not matter where the judge is located so long as he can connect to the internet, which is the essence of virtual hearing.
“In as much as court sessions can now be conducted virtually by the provisions of the rules and practice of the courts, I believed that a judge can, in view of virtual proceedings, give orders through rulings from outside jurisdiction,” Omoyinmi said.
What the NJC says about the order by Justice Liman will no doubt go a long way in clearing any doubts as to the validity of orders made by judges outside the country.
