A suit has been filed by the Lagos State government against the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), and the National Assembly to contest the constitutionality of virtual court hearings.

In the suit filed at the Supreme Court through the Attorney General and Commissioner for Justice, Moyosore Onigbanjo (SAN), Lagos is praying the apex court to determine “whether having regard to Section 36 (1), (3) and (4) of the 1999 Constitution (as amended), use of technology by remote hearings of any kind, whether by Zoom, Microsoft Teams, WhatsApp, Skype or any other audiovisual or video-conference platform by the Lagos State High Court or any other courts in Nigeria in aid of hearing and determination of cases, are constitutional”.

The plaintiff also wants the Supreme Court to determine “whether in view of the powers conferred on the Chief Judge of a State under Section 274 of the Constitution and in particular, the Chief Judge of Lagos State having exercised such power to regulate the practice and procedure of the High Court of Lagos State through the issuance of Practice Directions for Virtual Hearings dated 4th and 15th May 2020, the National Assembly can usurp the powers of the Chief Judge of Lagos State under Section 274 of the Constitution by commencing the process for the amendment of Section 36 (3) and (4) of the Constitution to include virtual or remote hearings”.

Lagos is further praying for a declaration that the extant provisions in the Constitution, especially Sections 36 (3) and (4) are adequate to accommodate virtual or remote hearings of any kind whether by way of Zoom, Microsoft Teams, WhatsApp, Skype, or any other audiovisual or video-conference platform as provided for in the Practice Directions issued by the Chief Judge of Lagos State dated 4th and 15th May 2020”.

The plaintiff is, therefore, urging the apex court for “a declaration that it is not within the legislative competence of the 2nd defendant or any other body, person or authority whatsoever to make laws or otherwise amend the Constitution for the regulation of the practice and procedure of the courts of Lagos State having regard to Section 274 of the Constitution” and “a declaration that the Bill presented before the 2nd defendant seeking to specifically include remote hearing in the Constitution constitutes a usurpation of the judicial function.”

In a 45-paragraph affidavit sworn to by Oluwayemisi Osisanya, a state counsel in the Ministry of Justice, Lagos State, she stated that following the outbreak of coronavirus pandemic which practically halted judicial proceedings in courts in Lagos, the National Judicial Council (NJC) issued guidelines on May 7, 2020 to aid the dispensation of justice in Nigeria.

She averred that pursuant to the provisions of Section 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Chief Judge of Lagos State issued Practice Directions to accommodate virtual or remote hearing.

Osisanya also claimed that “the amendment process of the 2nd defendant is threatening to disrupt the smooth running of the judiciary in Lagos State and the administration of justice on account of the uncertainty being created by the amendment process.”