In the Kalu case, the Supreme Court held that the fiat given by the President of the Court of Appeal to the a Justice Court of Appeal, who was elevated to the appellate court, to return to the Federal High Court to conclude Kalu’s trial was unconstitutional andproceeded to void the proceedings.
On his part, the Attorney General of Ekiti State, whos case was later called, said the suit by his state was to put certainty to the current uncertainty about the constitutionality or otherwise of virtual court siting.
Fapohunda said judges in his state are reluctant to sit and conduct virtual proceedings because they are afraid that their decisions and proceedings could be declared unconstitutional on appeal.
Justice Olabode Rhodes-Vivour, who led the seven-man panel said: “Just let us wait for the National Assembly whether what they will come up with go against the practice direction issued by Chief Judges of the states and the National Judicial Council (NJC) on virtual sitting.”
Justice Vivour said it is after the National Assembly has passed its pending Bill seeking to include virtual sitting in the Constitution can anybody challenge the constitutionality or otherwise of such an enactment and whether it violates the powers of heads of courts to regulate proceedings.
He said: “As at now, virtual siting is not unconstitutional.
Honourable Attorney General (referring to Onigbajo), go and tell your Chief Judge to ask the judges to continue to sit virtually if it s convenient for them.”
Another member of the panel, Justice Dattijo Mohammed said there is not cause of action yet, because no one has claimed that his right has been breached.
“Somebody’s right must be breached by what the National Assembly is able to come up with before you can come to court, ” Justice Mohammed said.
Justice Amina Augie (another member of the panel): “It is a fundamental law, we do not act on speculation. What you are doing now is speculative.”
Another member, Justice Olukayode Ariwoola said: “Why don’t you wait for the National Assembly to come up with what they are doing, then you can come and challenge it if you are not comfortable.
“You have a choice either to ask that your matter be adjourned sine die until after the National Assembly passes its law or you withdraw your case.”
On his part, Justice Ejembi Eko said the suits are premature and speculative.
Justice Eko said by virtue of the provision of Section 168(1) of the Evidence Act, the practice directions by courts heads on virtual proceedings enjoy the presumption of regularity until they set aside.
“We cannot say, at this stage, whether or not virtual sitting is constitutional,” Eko said.
In view of the position expressed by the Justices, to the effect that the suits are premature and that the directive on virtual court proceedings enjoy presumption of regularity, Onigbanjo and Fapohunda proceeded to withdraw their cases.
