JAMES ONANEFE IBORI & ORS V. FEDERAL REPUBLIC OF NIGERIA
(2011)LCN/4605(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of June, 2011
CA/B/61C/2010
RATIO
INTERPRETATION OF STATUTE: CONDITIONS THAT MUST BE MET OR SATISFIED BEFORE THE PROVISIONS OF SECTION 15 OF THE COURT OF APPEAL ACT 2004 CAN BE INVOKED
The opening phrase of Section 15 of the Court of Appeal Act commences with the following sentence:- “The Court of Appeal may, from time to time make any order necessary determining the real question in controversy in the appeal”. To my mind, the use of the word “real” means “actual” or “true” while the use of the word “question” in the provisions refers to ‘the actual issue involved in the appeal.’ This therefore presupposes that before the provisions of Section 15 of the Act can be invoked, the issue, point or subject matter, must be in controversy or is an issue before this court. To put it in another way, the question in controversy must be a ground or one of the grounds of appeal before it. Undoubtedly, section 15 of the Court of Appeal Act 2004 had given this court wide powers or jurisdiction over the entire proceedings in the appeal before it, similar or equal to the powers given to the trial court. However, that notwithstanding, this court must invoke such powers most sparingly. Such power must therefore be exercised only in a situation where the justice of the case actually demands doing so. Indeed, before invoking such powers, some fundamental conditions that exist MUST be met or satisfied. These conditions include the followings:- (a) Necessary materials must be made available for the court to consider and adjudicate in the matter. (b) The length of time between the disposal of the action at the trial court and the hearing of the appeal must be taken into consideration, and (c) the interest of justice in eliminating further or unnecessary delay in the disposal of the appeal and the hardship the parties may suffer if the order is not granted. See Jadesemi V. Okotie-Eboh (1986) 1 NWLR (pt 16) 264. University of Lagos v. Olaniyan (1985) 1 NWLR (Pt 1) 156 Yusufu V. Obasanjo (2003) 16, NWLR (Pt 847) 554; Adeyemi V. YRS Ike Olwna & Sons Ltd (1993) 8 NWLR (Pt 309) 27; Inakoju V. Adeteke (supra). PER AMIRU SANUSI, J.C.A.
APPLICATION FOR STAY OF PROCEEDINGS: CIRCUMSTANCE UNDER WHICH AN APPLICATION FOR STAY OF PROCEEDINGS WILL BE GRANTED
It is trite law, that application for stay of proceedings can only be granted where special and exceptional circumstances exist see IGP V. Fayose (2007) 9 NWLR (pt 1039) 263; Okem Ent. (Nig) Ltd V. NDIC (2003) 5 NWLR (pt 814) 495. PER AMIRU SANUSI, J.C.A.
PUBLIC DOCUMENT: WHAT IS A PUBLIC DOCUMENT
A public document is a document made or issued by a public officer for the purpose of the public making use of it and being able to refer to it especially where there is judicial or quasi judicial duty to inquire. PER AMIRU SANUSI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. JAMES ONANEFE IBORI
2. UDOAMAKA OKORONKWO (NEE ONUIGBO)
3. CHIEDU EBIE
4. MER ENGINEERING NIGERIA LIMITED
5. BAINENOX LIMITED
6. SAGICON NIGERIA LIMITED Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the Lead Ruling): This is a Motion on Notice dated and filed on the 23rd day of November, 2010, bought pursuant to order 7 Rule 1 and under the inherent powers of this court, wherein the applicant is seeking the grant of the under mentioned five prayers:-
1. AN ORDER staying all proceedings in this appeal pending.
(a) The hearing and determination of the Extradition proceedings instituted against the 1st Respondent/Applicant by the Crown Prosecution Service of the United Kingdom at the behest of and in collaboration with and/or cooperation of the Appellant and upon the return of 1st Respondent to Nigeria; and
(b) The hearing and determination of Appellant’s Appeal No. SC/136/2009, FRN V. IBORI & ORS currently pending before the Supreme Court of Nigeria.
2. AN ORDER setting aside the consent granted by the Appellant contained in letters of the Honourable Attorney General and Minister of Justice of the Federation dated 20th May, 2010 respectively to the Crown Prosecution Service and/or The British High Commissioner and/or The British Home Secretary to use evidence gathered in Nigeria and contained in the record of proceedings in this appeal for the purpose of initiating and/or instituting criminal proceedings against the 1st Respondent/Applicant in the United Kingdom or any part of the world.
3. AN ORDER that the Appellant shall secure the return of all evidence sent by the Appellant herein to the United Kingdom for the purposes of initiating and/or instituting criminal proceedings against the 1st Respondent/Applicant.
4. AN ORDER that the Appellant shall forthwith intervene in the extradition proceedings instituted by the Crown Prosecution Service of the United Kingdom and secure the return of the 1st Respondent to Nigeria to enable him properly defends this appeal.
5. AN ORDER that the Appellant shall promptly file a request with the Government of the United Arab Emirates for the return of the 1st Respondent/Applicant to Nigeria to enable him properly defend to enable him this appeal.”
There are six grounds supplied by the applicant upon which the application was brought which is also adumbrated below:
a) That the appellant cannot proceed with this appeal having on the 11th and 20th May 2010 respectively granted consent to the Crown Prosecution Service of the United Kingdom to use the same evidence contained in the record of proceedings in this matter to institute criminal proceedings against the 1st Respondent in the United Kingdom.
b) That based upon (1) above the Crown Prosecution service of The United Kingdom working in collaboration with the Appellant filed in extradition request in respect of 1st Respondent with the authorities of the United Arab Emirates resulting in the incarceration of the 1st Respondent pending final determination of the extradition proceedings.
c) That the Appellant cannot proceed with this appeal while actively aiding and supporting extradition proceedings aimed at sending the 1st Respondent to the United Kingdom for criminal trial based upon the same evidence contained in the record of proceedings in this matter.
d) That the 1st Respondent/Applicant being currently incarcerated in the United Arab Emirates cannot properly defend this appeal and properly brief counsel to represent him in this appeal.
e) That the Appellant has filed an appeal to the Supreme Court of Nigerian against the decision of the Court of Appeal Kaduna Division delivered in this matter transferring the matter from the Federal High Court Kaduna Judicial Division for hearing and determination before the Federal High Court, Asaba Judicial Division.
f) That to proceed with this appeal when 1st Respondent is incarcerated in a foreign Country at the instance of the Appellant would occasion a grave miscarriage of justice on 1st Respondent and is an abuse of the processes of this Honourable Court.
The motion is supported by a seven paragraph affidavit-Annexed to the application also are three exhibits marked or identified as Exhibits J1, J2 and J3.
Upon being served with the applicant’s application, the Respondent/Appellant responded by filing a counter affidavit of nineteen paragraphs on 2/3/2011. It however did not annex any exhibit to it.
When arguing his application before us on 9th of March 2011, Mr. A. A. Alegeh SAN of learned Senior Counsel for the applicant submitted that there is a pending appeal before the Supreme Court and that the appeal is to fortify the jurisdiction of the court. He also submitted that they also appealed to the Supreme Court on the proper venue of trial of the applicant. He further submitted that the counter affidavit filed by the Appellant/ 1st Respondent did not counter any of the averment in his supporting affidavit. The learned senior advocate then moved in terms of his application after of course, referring us to the three exhibits he annexed to his application identified and marked Exhibits J1, J2 and J3.
Replying to the learned applicant’s senior counsel’s submission, Mr. I. Ibrahim SAN for the respondent drew this court’s attention to his 19 paragraph counter affidavit and the averments on which he relied. He explained that their main appeal is against the decision of the Asaba High Court quashing the charges they framed against the applicant and presented same to that court. He said the crux of the appeal is whether there was prima facie evidence linking the accused, (now applicant,) to the offences charged. He remarked that all the documents in respect of that appeal were in the Record of Appeal as he stated in their counter affidavit.
The learned silk for the respondent, then referred us to paragraphs 3(VIII), (XVII) of the supporting affidavit to the motion wherein, it was averred that the Nigerian Government forwarded documents in the appeal to the United Kingdom and also that there was a pending appeal in the Supreme Court and the applicant’s arrest in Dubai stopped him from prosecuting the appeal. In response to those averments, the respondent’s senior counsel submitted that on the alleged interwovering charges such charges were not before this court hence this court cannot speculate. Also about the averment that the Federal Government forwarded the document to the United Kingdom as per Exhibit J2 annexed to the applicant’s motion, the learned silk referred this court to Paragraph 13 wherein it was stated that they submitted all the documents to the Bank he listed which were sent to the UK and which said banks were not the Banks to which the charges relate. He added that the only Bank listed in Exhibit J2 is Guarantee Trust Bank, but even, then the charge is related to the Delta State Government and NOT the applicant’s personal Bank account.
With regard to the issue of the pending appeal, the respondent’s counsel referred to Paragraph 18 of his counter affidavit where they argued that it relates to venue while the present or instant appeal merely relates to whether there is prima facie case to require the accused to explain on the conduct of his defence to the appeal while he is in Dubai, or the UK. It was further submitted on behalf of the respondent, that there was nothing before this court about his alleged incarceration. He then added that no special circumstances were shown to warrant the grant of the first prayer.
Then with regard to Prayers 2-5 together with reliefs 2 and 3 seeking courts order to set aside the consent given by the Hon. Attorney General of the Federation to use the documents and also about reliefs 4 and 5 seeking an order stopping the appellant from embarking on extradition proceedings to Dubai, and the invitation of this court to invoke the provisions of Section 15 of the Court of Appeal Act 2004 and under Order 4 of Court of Appeal Rules of 2007, in that regard, the learned senior advocated argued that those provisions could only be invoked by this court on issues or facts that are placed before it. He said that since the reliefs sought by the applicant do not arise from this appeal, this court cannot grant them pursuant to those provisions of the laws. See Inajoku V. Adeleke (2007) 11 NWLR (pt 1025) 423 at 613 to 614 H-B. The learned counsel in another submission argued that that appellate jurisdiction of this court is governed by the provisions of Section 240 of the 1999 Constitution and it was further argued that reliefs 2-5 do not arise from this appeal or relate to the subject matter of this appeal now before it. See the case of Ehuwa V. OSIEC (2006) 18 NWLR (Pt 1012) 544 at 570 E-H.
In final submission, Mr. I. Ibrahim SAN of learned senior counsel for the Respondent referred this court to Exhibits J1, J2 and J3 annexed to and in support of the application and observed that the said documents/exhibits are public document within the meaning of Section 109 of the Evidence Act of 1990 He then submitted that being public documents, Sections 113 (i), (ii) and (iii) of the Evidence Act require that that they ought to be certified before this court can act or rely on them, adding that, they had not been so certified. While urging this court to discard the said exhibits and to reject them, he finally urged this court to refuse the application and dismiss it for being meritless.
Perhaps it will not be out of place at this stage, if I set out below, made on behalf of the applicant in his some of the relevant averments supporting affidavit on which he is relying on his the present application and also the respondent’s response to them in his counter affidavit. This will go a long way in appreciating and expatiating the circumstance leading to the filing of the application and it will also help this court in deciding whether to grant the application or not. Some of these relevant averments in the supporting affidavit include the followings:-
PARAGRAPHS
“3(1)
(ii) That the 1st Respondent was arrested on the 12st of December, 2007 in Abuja by the Applicant and charge on the 1sth December 2007 along with 4 others before the Federal High Court, Kaduna Division in CHARGE No. FHC/KD81C/2007 FRN v. IBORI & ORS on a 103 count charge. The 1st Respondent pleaded ‘Not Guilty’ to these charges after which, he was remanded in prison custody at the Kaduna prison, Kaduna.
(iii) That on the 11th of January 2008, the Appellant filed amended charges and increased the counts from 103 counts to 129 Counts. The 2nd Respondent’s plea was re-taken and he again pleaded ‘Not Guilty’ to these charges.
(iv) That the Appellant again further amended the charges on the 12th March, 2008 and increased the Counts from 129 counts to 170 counts.
(v) That the 1st Respondent spent a total of sixty two (62) days in prison custody on the basis of these charges before he was granted bail. He suffered serious medical complications while in Prison custody and on one occasion had to be airlifted by Prison Authorities to the National Hospital, Abuja. The 1st Respondent is still suffering the ill effects of the long stay in prison custody without proper medical facilities and attention.
(vi) That the 1st Respondent’s appeal challenging the jurisdiction of the Federal High Court, Kaduna Division on grounds of forum shopping was successful and the matter was transferred to the Federal High Court, Asaba where it was renumbered Suit No. FHC/ASB/1C/09.
(vii) That the Appellant filed an appeal against the decision of the Court of Appeal, Kaduna Division transferring the suit to the Federal High Court, Asaba Division. The appeal has been entered for hearing at the Supreme Court as Appeal NO.SC.136/2009. The Appellant herein has already filed his Appellant’s brief of argument in respect of the appeal at the Supreme Court.
(viii) That the 1st Respondent filed an application to quash the charges against him and after taking arguments, the lower court delivered a considered Ruling quashing all the 170 counts filed by the Appellant against him.
(ix) That the Appellant being dissatisfied with the decision of the Federal High Court promptly filed this appeal against the decision of the lower court quashing the 170 count charges against me.
(x) The Appellant/Respondent has forwarded all the documents and witness statements earlier intended to be used by the prosecution at the Federal High Court, Asaba to the Crown Prosecution Service and Metropolitan Police in the United Kingdom and given consent for their use in instituting criminal proceedings against me in the United Kingdom.
(xi) That the Appellant/Respondent is presently working and collaborating with the Crown Prosecution Service and Metropolitan Police in the United Kingdom to extradite me to the United Kingdom to face fresh criminal charges in the United Kingdom using the same evidence contained in the record of proceedings in this matter.
(xii) That the 1st Respondent is presently incarcerated in the United Arab Emirates pending the hearing and determination of the extradition proceedings initiated by the Crown Prosecution Service on the basis of the consent granted by the Appellant to use the evidence to initiate criminal proceedings against me in the United Kingdom.
(xiii) That the criminal charges, the purpose for which the extradition in is being sought are alleged offences which are all arising from the same allegations of corruption and money laundering during the 1st Respondent’s tenure as Governor and are inextricably interwoven with the 170 count charge already quashed by the lower court and against which the Appellant has appealed.
(xiv) That the documents so far sent to the United Kingdom as stated in Sub-Paragraph (xiii) herein consist of all the documents contained in the Record of Appeal to be relied on by the Appellant in this Honourable Court for the determination of this appeal. Now shown to me and marked EXHIBITS J1, J2 and J3 are copies of a letter dated 11th May, 2010, an Annexure containing a list of all the documents sent to the United Kingdom and a letter dated 20th May, 2010 written by the Attorney General of the Federation.
(xv) That the facts contained in Sub-paragraphs x, xi, xii, xiii and xiv have all been expressly admitted by the Appellant through MRS. FARIDA WAZIRI, the well respected Chairman of the Economic and Financial Crimes Commission and these admissions have been widely reported in print and media.
(xvi) That the criminal proceedings being instituted by the Metropolitan Police in the United Kingdom with the active assistance of the Appellant against the 1st Respondent is on a parallel plain with this present appeal. The subject matter of the criminal charges being proffered against 1st Respondent in the United Kingdom is the same as the same subject matter already decided by the Federal High court, Asaba Division.
(xvii) That since 1st Respondent’s departure from office as Executive Governor of Delta State in May, 2007, the 1st Respondent has been constantly harassed, intimidated and unnecessarily victimized by the Appellant which is clearly ‘dancing to the tune’ of 1st Respondent’s political detractors as his said political detractors have found an able tool in the Appellant.
(xviii) That due to 1st Respondent’s incarceration in Dubai, United Arab Emirates he is unable to access funds to meet his financial obligations to his lawyers to enable them file his Respondent’s brief in this matter. That all his cheque books for his accounts from where he can make payments to his Lawyers are in Nigeria.”
In his reply to the above averments and the annexed documents to the supporting affidavit, the respondent also made the under mentioned averments in its counter affidavit as below:-
PARAGRAPHS
5. “That the 1st Respondent/Applicant alongside the 2nd-6th Respondent were arraigned before the Federal High Court, Kaduna on a 170 count alleging them various offences relating to Money Laundering, Bribery and Non-disclosure of assets contrary to Section 14(1) and 16 Money Laundering (Prohibition) Act, 2003/2004 and Section 27(3)(a) of the EFCC (Establishment) Act, 2004.
6. That the accused persons objected to being tried in Kaduna, Kaduna State, predicating their objection on the provisions of Section 45(a)of the Federal High court Act. The court of Appeal, Kaduna Division allowed the accused persons, appeal against the Ruling of the trial Federal High Court, Kaduna that it had venue-jurisdiction.
7. That consequent upon that decision of the court Appeal, the case was transferred to the Federal High Court, Asaba before whom the Accused Persons (except the 2nd Respondent who was standing trial in London) were arraigned.
8. That before their pleas were taken, the Accused Persons applied for all the 170 Counts to be quashed and this was upheld and the said and the said counts were quashed.
9. That it is against this decision quashing all the counts that the Appellant has appealed to this Hon. Honourable Court.
10. That the appeal before this Honourable Court relates to whether:
(1) trial before the Federal High Court is by information accompanied by proofs of Evidence and not by way of summary trial pursuant to F12 LFN, 2004; and
(2) assuming trial is by information, whether the proofs of Evidence that accompanied the 170 counts in the instant case disclosed prima facie case linking the Accused persons to the offences alleged against them.
11. That the Appellant has already filed its Brief of Argument.
12. That in respect of the said appeal, that is, the instant appeal, the documents and processes necessary for the determination of the appeal are already before the Honourable Court and they include:
(1) the 170 counts;
(2) the proofs of Evidence;
(3) the Motion on Notice to quash the said Counts;
(4) the written addresses by counsel to both parties.
(5) the proceedings in court wherein both counsel adopted their Written Addresses;
(6) the Ruling of the trial court; and
(7) the Notice of Appeal.
13. That at the trial court:
(1) Counsel 1-3 relate to 1st Respondent’s personal account at Guarantee Trust Bank.
(2) Counts 4-23 relate to the Account of Professor AGBE UTUAMA’s private Law Firm, Prime Chambers at Zenith Bank, Asaba.
(3) Counts 35-49 relate to transfer of sums of money from the Delta State Government Account in Oceanic Bank Plc to the Zenith Bank account of SILHOUETTE TRAVELS & TOURS LIMITED (2nd Respondent’s company).
(4) Counts 50 relate to transfer of sums of money from the Delta State Government Account in Oceanic Bank Plc to the Standard Trust Bank account of HOUSE PROJECT & INVESTMENT LIMITED owned by 1st Respondent/Applicant’s Personal Assistant, BIMPE POGOSON.
(5) Counts 51-65 relate to transfer of various sums from the Delta State Government Account in Oceanic Bank to the personal account of the 2nd Accused Person in the same Bank.
(6) Counts 66 alleges cash payment of 66 us Dollars by the 1st Respondent/Applicant to officials of the EFCC to influence investigation. Same is in the custody of the Central Bank of Nigeria.
(7) Counts 67-106 relate to withdrawals of cash from Oceanic Bank Delta State Government Account and lodgments into the United Bank for Africa Plc. Account of the 5th Accused Person to which the 3rd Accused Person was the sole signatory.
(8) Counts 107 -122 relates to 1st Respondent/Applicant’s account at Barclay’s Bank Plc, London held in the name of the 4th Accused.
(9) Counts 123-134 relate to non-disclosure, by the 1st Respondent/Applicant of his assets in the United Kingdom.
(10) Counts 135- 147 relate to transfers of various sums of money from the London HSBC Bank Account of the 2nd Accused person to the Barclay’s Bank account of the 1st Respondent/Applicant.
(11) Counts 148- 167 rerate to various sums of money withdrawn from the Delta State Government account in oceanic Bank and lodged, in cash, in the 2nd accused person’s personal account in the same Bank.
(12) Counts 168- 170 relate to withdrawal of various sums of money from the Delta State Government account in oceanic Bank and lodgment of same, in cash, into the account of the 6th Accused in Oceanic Bank.
17. That the Appellant has no hand in the Dubai/London case involving the 1st Respondent/Applicant or any of the Accused persons.
18. That appeal No. SC. 136/2009 is not in relation to the quashing of the 170 counts but venue of arraignment and trial of the accused persons
It is pertinent to note that the applicant did not file any Reply to the counter affidavit and had therefore not countered the averments contained in the counter affidavit as highlighted or set out above. From the affidavit evidence presented before me, it is clear and beyond any dispute too, that the gravamen of the appeal which the applicant prayed me to stay proceedings on, basically relates to quashing by the lower court (i.e. the Federal High Court, Asaba) of all the counts charge filed by the EFCC against the applicant. It is also not in dispute that Brief of argument was filed by the appellant after the records of appeal were compiled, transmitted and served on the parties. The learned senior counsel for the respondent painstakingly listed in his counter affidavit the identity, particulars and nature of the 170 charges and such piece of affidavit evidence had not been controverted by the applicant. I am convinced therefore, that appeal No. SC 136/2009 pending before the Supreme Court copiously referred to by the applicant, does not and indeed had no bearing or relevance whatsoever to the instant appeal before this court which proceedings the applicant wants me to stay.
It therefore does not amount to any abuse of court process as the two appeals are distinct and totally unrelated, especially if one appreciates the fact that the appeal pending before the apex court is on venue jurisdiction of trial of the applicant and not on the subject matter of trial of the applicant or about which court that had jurisdiction to try him of the offence charged. It therefore deals purely with where and which court had jurisdiction while this instant appeal, as I said supra, arose from the lower court’s decision quashing the 170 count charges filed against the applicant at Asaba Federal High Court and on whether there is a prima facie evidence linking the applicant with alleged offences in the charges framed.
The applicant in his supporting affidavit averred in paragraphs 3(vii) to (XVII) that the respondent herein, had forwarded all the documents in the appeal to the United Kingdom and that there is a pending appeal in the Supreme Court. He also stated that his arrest in Dubai had prevented him from prosecuting this appeal pending in the Supreme Court. With due deference to the learned counsel for the applicant, these points raised in the paragraphs in the supporting affidavit under reference above are totally unrelated to the subject matter of the appeal before us now and therefore to delve on such matter at this stage, is to embark on an exercise on matter not before us and if we do so it will amount to acting within the realm of conjecture which this court is precluded by law from doing. Again, our attention has been drawn to purported Exhibit J2 annexed to the applicant’s application wherein some banks listed were allegedly sent to the United Kingdom preparatory to the applicant’s prosecution by the Crown Prosecution service and Metropolitan Police in the United Kingdom. The respondent herein however debunked such averments in paragraph 13 of its counter affidavit, wherein it copiously listed all the banks to which the 170 charges relate. Comparing the banks listed in the purported Exhibit J2, with the Banks listed in Paragraph 13 subparagraphs (1) to (12), I am left with no iota of doubt, that the banks listed in Paragraph 13 of the counter affidavit (except one ) which were sent to the United Kingdom are different from those banks to which the charges relate at all. In actual fact, only the Guarantee Trust Bank Plc is related to one of the charges, which even then, the charge relates to Delta State Government account and certainly not the applicant’s personal account.
Another issue raised in the applicant’s application is his alleged incarceration in Dubai and his difficulty in prosecuting his appeal while in prison custody in Dubai. This issue in my view is also not before this court and does not also relate to the appeal before us. We also have been urged by the applicant’s learned counsel, to invoke the provisions of Section 15 of the Court of Appeal Act 2004 to order the appellant i.e. the respondent herein to stop the extradition proceedings to Dubai. I have stated earlier that the issue of extradition is not before us as it is not a subject matter before us.
The opening phrase of Section 15 of the Court of Appeal Act commences with the following sentence:- “The Court of Appeal may, from time to time make any order necessary determining the real question in controversy in the appeal”. To my mind, the use of the word “real” means “actual” or “true” while the use of the word “question” in the provisions refers to ‘the actual issue involved in the appeal.’ This therefore presupposes that before the provisions of Section 15 of the Act can be invoked, the issue, point or subject matter, must be in controversy or is an issue before this court. To put it in another way, the question in controversy must be a ground or one of the grounds of appeal before it. Undoubtedly, section 15 of the Court of Appeal Act 2004 had given this court wide powers or jurisdiction over the entire proceedings in the appeal before it, similar or equal to the powers given to the trial court. However, that notwithstanding, this court must invoke such powers most sparingly. Such power must therefore be exercised only in a situation where the justice of the case actually demands doing so. Indeed, before invoking such powers, some fundamental conditions that exist MUST be met or satisfied. These conditions include the followings:-
(a) Necessary materials must be made available for the court to consider and adjudicate in the matter.
(b) The length of time between the disposal of the action at the trial court and the hearing of the appeal must be taken into consideration, and
(c) the interest of justice in eliminating further or unnecessary delay in the disposal of the appeal and the hardship the parties may suffer if the order is not granted.
See Jadesemi V. Okotie-Eboh (1986) 1 NWLR (pt 16) 264, University of Lagos v. Olaniyan (1985) 1 NWLR (Pt 1) 156 Yusufu V. Obasanjo (2003) 16, NWLR (Pt 847) 554; Adeyemi V. YRS Ike Olwna & Sons Ltd (1993) 8 NWLR (Pt 309) 27; Inakoju V. Adeteke (supra).In the instant case, the conditions set out above have not been met as would warrant or justify this court to invoke the provisions of the Section 15 of the court of Appeal Act and/or order 4 of this court’s Rules of 2007 to stop the extradition proceedings or to grant reliefs Nos. 2, 3, 4 and 5 supra as they all relate to issues not in controversy before this court. I therefore decline to grant any of them since as I posited earlier, none of the conditions set out above had been met or satisfied by the applicant.
I will now come back to the first relief sought which pertains to grant of stay of Proceedings in this appeal pending the hearing and determination of extradition proceedings against the applicant. It is trite law, that
application for stay of proceedings can only be granted where special and exceptional circumstances exist see IGP V. Fayose (2007) 9 NWLR (pt 1039) 263; Okem Ent. (Nig) Ltd V. NDIC (2003) 5 NWLR (pt 814) 495. There is no doubt that courts have discretion to grant or refuse an order for stay of proceedings even though such discretionary powers must be exercised both judicially and judiciously too. Similarly, the exercise of such discretionary power must be prompted by the peculiar circumstances of each given case in which all factors for and against the grant of stay of proceedings must be carefully and meticulously weighed. For purpose of emphasis, to avail an applicant with grant of prayer for stay of proceedings, such applicant must show special and exceptional circumstances. In the instant, case the evidence adduced by the applicant did not disclose any special or exceptional circumstance as could warrant him to be obliged with an order for stay as sought. There is no sufficient material supplied by him to justify the grant of the first relief (for stay of proceedings.)
The learned applicant counsel heavily relied on the three annexure to his supporting affidavit and to buttress his case for the grant of the said reliefs sought. The three annexures which he called evidence are Exhibits J1, J2 and J3. These exhibits are letters allegedly written by the Honourable Attorney General of the Federation to Home Secretary to the Government of the united Kingdom dated 11/5/2010 document containing evidence to the British High Commissioner in Nigeria dated 20/5/2010 respectively. Having emanated from or issued or written by the Attorney General of the Federation, a public officer per se, these documents are public document. A public document is a document made or issued by a public officer for the purpose of the public making use of it and being able to refer to it especially where there is judicial or quasi judicial duty to inquire. In fact under the provisions of Section 109 of the Evidence Act of 1990 as amended, they are described as documents forming the acts or records of the acts of the sovereign authority, official bodies and tribunals, public officers, legislative judicial and executive, whether of Nigeria or elsewhere and public records kept in Nigeria of private documents. See the cases of Lambert V. Nigerian Navy (2006) 7 NWLR (pt 980) 524; Bayo V. Jidole (2004) 8 NWLR (Pt 876) 544; Alatahe V. Asin (1999) 5 NWLR (pt 601) 32. By the provisions of Section 97 ( ) (e) (f) and (2) (c) of the same Evidence Act, only certified true copy of a public document is allowed in evidence; See Witt & Busch Ltd. V. Goodwill & Trust Ind. Ltd. (2004) 8 NWLR (pt. 874) 179. From the look of Exhibits J1, J2 and J3, annexed to the applicant’s application, none of these documents was certified at all. They are therefore, for reason of non-certification not admissible in evidence. By relying on those documents to justify his application therefore, he can be said to have relied on an inadmissible evidence. The resultant effect of all that I have said above is that the applicant failed to show special and exceptional circumstances for the grant of order of stay of proceeding as prayed in Prayer one of this application. As I said supra, this court cannot grant the second to fifth prayers for reasons I advanced earlier in this ruling.
Thus, on the whole, I adjudge the present application as meritless and is therefore refused and I accordingly dismiss it.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I had the privilege of reading in draft the ruling just delivered by my learned brother, Amiru Sanusi, JCA. I agree for the reasons contained therein that this application is devoid of merit and I accordingly dismiss it. I make no order for costs.
CHIOMA NWOSU-IHEME (PH.D) J.C.A: The draft of the Ruling delivered by my learned brother AMIRU SANUSI JCA was carefully read by me.
His Lordship has ably considered and rightly resolved the issues for determination in this ruling.
The views expressed therein are in harmony with mine and I agree that for all the reasons given in the ruling, the application is unmeritorious and should fail.
Accordingly, I join in dismissing the application.
Appearances
A.A. Alegeh SAN with O. Igbinonmwanhia and A.O. AimwrwuFor Appellant
AND
I. Ibrahim SAN with Kayode Oni and Miss Linda AgidiFor Respondent
