Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Promoting justice in Nigeria with progressive rule of legal interpretation 12 Jun 2020

Concerns have been raised in some quarters about the constitutionality of the practice directions issued by different heads of court. The High Courts of Borno, Lagos and Ogun states, the Federal High Court and the National Industrial Court have all issued practice directions for virtual sittings of court for urgent matters. The practice directions became necessary following the nationwide lockdown imposed by the Federal Government (FG) and state governors in response to the outbreak of the COVID-19 pandemic.
    
A ThisDay newspaper report of May 17, 2020, stated that some judges who desired to remain anonymous doubted the constitutionality of the practice directions allowing virtual sittings of court in light of Section 36(3) of the Constitution, which provides that, “The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in the subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.” This fear is said to have been further deepened by the recent decision of the Supreme Court in the appeal filed by Jones Udeogu, a former Director of Finance and Accounts in Abia State during the administration of Governor Orji Uzor Kalu. Udeogu was convicted by Justice Mohammed Idris along with the former governor and his company on fraud-related offences.

The Supreme Court, in its judgment, set aside Udeogu’s conviction on the grounds that Justice Idris had been elevated to the Court of Appeal (CoA) at the time he delivered the ruling. Thus, he violated the provisions of the Constitution by continuing to sit as a High Court judge. Following the Supreme Court’s decision, some people have expressed the fear that cases that are heard virtually during the lockdown could be overturned on appeal for violating the provisions of Section 36(3) of the Constitution. This has led to the initiation of a process to amend the provisions of this section of the Constitution to ‘correct’ this anomaly and allow for virtual hearings.

While I am a proponent of the review and amendment of the Constitution to reflect modern societal realities, it is my opinion that an amendment is absolutely unnecessary in this instance. I have some reservations about the apex court’s interpretation of the Constitution regarding its decision in Udeogu’s case – I will get to that later. But that decision does not have any similarity in form or substance to the discourse on virtual court hearings.

My contention is that the constitutional interpretation of the word ‘public’ in Section 36(3) is not nearly as complex or complicated as interpreting the status of Justice Idris at the time he delivered the judgment that has now been nullified. The Constitution does not state that the proceedings of court must be held in a physical location. Technology has opened up new possibilities to achieve things with more efficiency and speed. Payments and financial transactions can be carried out without visiting the physical location of a bank. At least one Nigerian bank is completely digital. Since the beginning of the lockdown in March 2020, many religious organisations have been conducting services through various electronic visual and audio platforms.

The absurdity of the interpretation of the word ‘public’ to mean activities conducted in only physical places becomes apparent given that we live in an era of technological advancements. Moreover, President Muhammadu Buhari and various heads of federal and state governments in Nigeria have addressed the citizens ‘publicly’ from the comfort of a room through live and sometimes recorded broadcasts. I doubt there is any argument as to whether these broadcasts can be described as ‘public.’ Regulatory agencies in Nigeria now issue public statements by posting same on their websites and social media.

In any event, the interpretation of the word ‘public,’ with respect to court proceedings, has been given judicial interpretation by the Supreme Court. In the case of Simon Edibo v. The State, the late eminent jurist, Niki Tobi J.S.C., defined public as being “for the use of everyone without discrimination. Anything, gathering or audience which is not private is public.” The judgement of the lower court was set aside by the apex court on the grounds that the presiding judge delivered his judgement in his chambers. In the words of Justice Tobi: “A Judge’s Chambers is not one of the regular courtrooms nor is it a place to which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge.”

It is thus clear that the highlight of what constitutes ‘public’ sittings is access without discrimination or permission. Once it is accessible to all, it is public. Thus, if we are to use the most basic rule of interpretation of statutes – the literal rule – where words are to be given their simple, literal, ordinary and grammatical meaning, Section 36(3) of the Constitution does not in any way render virtual sittings of court unconstitutional.

The issue is not quite as simple with respect to the interpretations of Sections 249 and 253 of the Constitution and Section 396(7) of the Administration of Criminal Justice Act (ACJA) 2015 as it pertains to Udeogu’s case. In rendering its judgment on the case on May 9, 2020, the Supreme Court nullified the provisions of Section 396(7) of the ACJA on the ground of its inconsistency with the Constitution.

It is not in doubt that the Constitution is the foundational statute upon which all other laws derive their validity. Thus, any provision of any law that is inconsistent with the Constitution would be declared null and void to the extent of its inconsistency. I do not, however, believe that the provision of Section 396(7) of the ACJA is inconsistent with the Constitution as long as the right tools of interpretation of statutes are employed properly. Section 396(7) of the ACJA provides: “Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time: Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.”

Section 253 of the Constitution provides that: “the Federal High Court shall be duly constituted if it consists of at least one Judge of that Court.” The question, therefore, is: was Justice Idris a judge of the Federal High Court at the time he delivered the judgment? The Supreme Court has stated that he was not by virtue of his elevation to the CoA and this interpretation remains the law until a constitutional amendment is made or the Supreme Court overrules itself.

Nevertheless, I think the provisions of Section 253 should have been given a more liberal and progressive interpretation to bring about the intendment of the Constitution with respect to the administration of justice vis-à-vis the provisions of Section 396(7) of the ACJA.

Our legal jurisprudence has, over the years, developed to lean favourably towards the purposive approach in the interpretation of statutes. This approach interprets specific clauses or provisions in a statute in a manner that gives effect to the intendment of the statute. Section 36(1) of the Constitution provides that every person is “entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

The charge against Udeogu has been in existence since 2007. Following appeals and movement of the file between three judges, Udeogu and his co-defendants were re-arraigned before Justice Idris on October 31, 2016. More than three years after the said re-arraignment, they were to begin the process again at the court of first instance.

There are, therefore, no winners in the judgment given by the Supreme Court – neither the defendants who still face a criminal charge nor the complainant, in this case the FG. The society is also a loser in this case.

It would have been a different outcome if the apex court had interpreted Section 396(7) of the ACJA as complimenting, rather than contradicting, the Constitution. I believe Justice Idris sat, in line with the ACJA, for the purposes of completing the criminal trial that he had begun before his elevation. He must have done so as a High Court judge and not as a justice of the CoA. The wording of the ACJA granting the judge “the dispensation to continue to sit as a High Court judge” gives credence to the supposition that it intended to compliment Sections 253 and 273 of the Constitution. Hence, it does not contradict the Constitution.

There is no provision of the Constitution that expressly prohibits a CoA justice from sitting as a High Court judge. The man behind the robe – his qualifications and knowledge – remains the same. He simply acts based on the status imposed on him by law. The golden rule of interpretation of statute is used to justify a departure from the ordinary, literal and grammatical meaning of the words in the statute where such literal interpretation would yield absurd results.

In support of my postulation, I would rely on the words of the Supreme Court itself. In the case of Nafiu Rabiu v. The State, the Supreme Court stated: “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, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”

It is the revered late Chukwudifu Oputa J.S.C. that is credited with saying, “in the final analysis the end of law is justice.” Where our Constitution is applied in a manner that does not manifest justice to any of the stakeholders, something has to give – either the Constitution has to change, or we become more progressive in our interpretation of it.