– Says, only Chief Judge can legally make such Order
An Owerri based human rights lawyer and activist Barr Chinedu Agu, has faulted a recent directive by the Chief Registrar of the High Court prohibiting the use of phones in court rooms.
Agu, in a release he issued, a copy of which was made available to Nigeria Watchdog Newspaper, said, “I have seen, with real concern, the notice pasted within high court premises in Imo State stating that the “use of phones within the court rooms is strictly prohibited.
I have also gathered that the notice emanates from the office of the Chief Registrar of the High Court of Imo State. If that is true, then the notice is, with respect, ultra vires the powers of that office.
The reason is straightforward. The constitutional power to make rules regulating the practice and procedure of the High Court of a State is vested, not in the Chief Registrar, but in the Chief Judge. Section 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows:
Subject to the provisions of any law made by the House of Assembly of a State, the Chief Judge of a State may make rules for regulating the practice and procedure of the High Court of the State.”
This provision is clear and admits no ambiguity”.
The renowned legal luminary further stated that, the authority to make rules of court, or to issue binding procedural directions in line with the aforementioned constitutional power belongs to the Chief Judge. “Though the Chief Registrar is an important administrative officer of the court, he is not the constitutional fountain of court rule making. He may circulate or implement lawful directives, but he cannot by administrative notice assume a power which the constitution has expressly vested in the Chief Judge”.
Continuing, the release captioned, “LEGAL OPINION ON THE NOTICE PROHIBITING THE “USE OF PHONES” IN COURTROOMS IN HIGH COURTS IN IMO STATE”, stated that, “Accordingly, if this directive truly came from the Chief Registrar and not from a valid Rule of Court, Practice Direction, or express directive of the Chief Judge, then it stands on a very shaky legal foundation indeed.
A registry cannot, by laminated poster, become a mini legislature for the High Court.
The notice also raises serious fundamental rights concerns. This is not a trifling matter of convenience. Court proceedings touch directly on the constitutional guarantees of fair hearing and public hearing under section 36 of the Constitution.
Of course, no sensible lawyer argues that courtrooms should become phone booths. Calls ringing during proceedings are disruptive. Loud conversations on the phone in open court are discourteous. Recording proceedings without leave may well be objectionable. But that is not what this notice says. It does not target noise. It does not target interruption. It does not target recording. It targets the nebulous phrase “use of phones.”
That phrase is dangerously wide.
Does it mean making calls only? Receiving calls? Texting? Reading a legal authority on a phone? Opening a PDF of a filed process? Checking one’s diary? Looking at a witness note? Confirming the next matter on the cause list? Sending a quick message to a junior outside court to bring up a file? The notice says none of these things. It simply pronounces, in sweeping terms, that the “use of phones” is prohibited.
That kind of blanket language is precisely the kind of language that invites arbitrary enforcement.
I am personally affected by this notice because I use my phone as my diary. I do not keep a physical diary. My schedule, court dates, reminders, case notes, and day to day professional coordination are on my phone. So, when a notice says that the “use of phones” is prohibited, it is not speaking into the air. It is speaking directly into the practical working tools of many legal practitioners like myself.
And I am certainly not alone. Many lawyers now use their gadgets during proceedings in entirely legitimate ways. Some consult authorities on their tablets or phones. Some keep hearing notes there. Some track adjourned dates there. Some keep scanned processes there. Some even store witness questions, issues for address, and daily call over notes there.
In this age, a lawyer’s phone is often less a toy and more a mobile chambers.
Nobody who has watched serious courtroom practice in recent times would be shocked by this. Indeed, one would hardly be surprised if even a seasoned senior practitioner like Chidi Nworka keeps some of his practice notes on his phone. That is how the profession now works.
The law has moved from quills to keyboards. It should not now be dragged backwards by a notice that appears to assume every phone is either for gossip or for ringtone competition.
A narrower and lawful notice would have made far more sense. That is why the notice is so disappointing. It could easily have been crafted in a lawful and precise form.
It could have stated, for example, that phones must be kept on silent mode in court; that making or receiving calls during proceedings is prohibited; that any ringing phone in court is unacceptable; or that photography, video recording, or audio recording without leave of court is prohibited. That would have been sensible. That would have been clear. That would have addressed the mischief. That would have preserved decorum without criminalising ordinary professional use of technology.
Instead, we have a notice so broad that it can catch everything from a nuisance caller to a lawyer checking his next adjourned date. In trying to kill the mosquito, it threatens to burn the whole net.
It will be more troubling if some judges are now echoing this same directive in their various courts, as though repetition can cure invalidity. With respect, it cannot.
A directive that is incompetent at birth does not become valid because it has found judicial admirers. It is one thing for a judge, in the exercise of control over proceedings before him or her, to direct that phones be kept silent and that calls must not be taken in court. That is plainly within courtroom control.
It is quite another thing to adopt and enforce, wholesale, an administrative notice allegedly issued by the Chief Registrar as though it were a Rule of Court or Practice Direction made by the Chief Judge pursuant to section 274 of the Constitution. That is the danger here.
The judiciary must be careful not to permit administrative enthusiasm to outrun constitutional authority.
The vice of vagueness in this notice can not be overstated. Law, especially when it seeks to regulate conduct in a court of law, must speak with clarity. A citizen and a lawyer alike are entitled to know what exactly is prohibited.
The phrase “use of phones” does not meet that standard. It is too elastic. It leaves too much to the personal mood of whoever is enforcing it. One security officer may think reading a text message is prohibited.
Another may think merely holding a phone is prohibited. Another may think counsel can not consult a digital law report. Another may think the ban applies not only in the courtroom but throughout the court premises because the notice has been posted everywhere.
There used to be a particular judge at the Federal High Court 2 Owerri that I encountered in my early years of practice [between 2014 – 2017, I guess] who would insist that no phones were allowed in her courtrooms but must be kept in the car. And the judge would embarrass daylight out of lawyers if she sighted their phone in breast pockets of the suit, on file, on the diary at the bar, or anywhere at all inside the court. I don’t remember anyone challenging that obnoxious rule then, and it became a law in her court.
I consider the notice to be constitutionally troubling, administratively improper, and incurably vague. If it indeed emanated from the office of the Chief Registrar, then it is, with respect, beyond the lawful powers of that office.
If the intention was to preserve order, the notice should have targeted actual disorder.
If the intention was to prevent calls, then it should have said calls. If the intention was to prevent ringing phones, then it should have said phones must be on silent mode.
If the intention was to stop recording, then it should have prohibited recording. What it could not properly do was to impose a sweeping ban on the “use of phones” and leave everyone else to decode the command like a badly drafted riddle.
Accordingly, I respectfully call on the appropriate authorities to pull down and withdraw the said notice from all court premises in Imo State within fourteen days of this publication.
Should the notice remain in place after the expiration of that period, I shall take steps to challenge in court the propriety, legality, and constitutional validity of the notice, including the competence of the issuing authority and the vagueness and overbreadth of the directive.
The courts must be governed by law, not by administrative improvisation.
Courtroom dignity is important, but constitutional discipline is even more important”.
