The decision of the Supreme Court that online sitting is not unlawful would have saved the day, if the ‘judgment’ does not appear to be an obiter dictum. An obiter dictum is a judicial comment made in the course of delivering a judicial opinion, and as such, does not amount to a judicial precedent. Clearly, what the Lagos and Ekiti state governments wanted from the Supreme Court was a judicial precedent (stare decisis), to ensure the sanctity of virtual proceeding, which has become imperative in the face of challenges arising from the COVID-19 pandemic.
But, alas, the apex court reportedly held that the cases filed by Lagos and Ekiti state governments are speculative, and as such dismissed both. If that is the case, one may then ask, on which case did the Supreme Court make its pronouncement, that online hearing is constitutional? While the apex court may know better, as the final court of the land, we thought that a decision of a court is predicated on a case, in situ, before a court of competent jurisdiction.
In our view, if the two cases were dismissed as premature and academic, then perhaps the Supreme Court’s averment that online court sittings are not unconstitutional may also be academic. We ask, upon the dismissal of the suits before the court, can the court go ahead and make a pronouncement that amounts to stare decisis? We think it would have been better if the Supreme Court had exercised its powers under section 232(1) of the constitution, which gives the apex court the original jurisdiction in matters similar to those brought before it by the attorneys-general of Lagos and Ekiti states.
Section 232(1) provides: “The Supreme Court shall to the exclusion of any other court, have original jurisdiction in any dispute between the federation and a state or between states if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
For the Lagos State Attorney-General, the suit was for the apex court to interpret the provision of the constitution and other extant laws, so as to prevent the kind of experience the apex court handed down, in the Orji Uzor Kalu’s case, in which a 13-year effort of the Economic and Financial Crimes Commission (EFCC), was rubbished on constitutional technicality. In Kalu’s case, a conviction at the trial court, affirmed by the Court of Appeal, was dismissed by the Supreme Court, for infringing on the constitution.
On his own part, the Attorney-General of Ekiti State, conceived the matter as a dispute arising from the directive of the National Judicial Council (NJC), to state courts, to use virtual proceedings to hear and determine cases before the courts. We wonder why the Supreme Court did not take up the matter either as an opportunity to determine the extent of the constitutional provision, or a dispute between the Ekiti State government and a federal agency, the NJC, on the interpretation of an extant constitutional provision.
No doubt, COVID-19 pandemic has rattled many aspects of our lives, and maintaining physical court proceedings is one such challenge. But the question remains as to whether the pronouncement of the Supreme Court has settled the apprehension, in view of the provisions of section 36(3) that: “The proceedings of a court or the proceedings of a tribunal relating to the matters mentioned in subsection (1) … shall be held in public” and section 36(4) that: “Whenever any person is charged with criminal offence, he shall … be entitled to a fair hearing in public…”?
Source: The Nation
