FEDERAL REPUBLIC OF NIGERIA v. VINCENT OGBULAFOR & ORS (2012)

FEDERAL REPUBLIC OF NIGERIA v. VINCENT OGBULAFOR & ORS

(2012)LCN/5356(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of May, 2012

RATIO

COURT: HOW IS THE MATTER OF DISCRETION EXERCISED

As rightly argued by the learned counsel for the 1st respondent matters of discretion are exercised according to the facts and circumstances of each particular case. Once the principles guiding the exercise of such discretion are followed, the mode of exercising it cannot be tied to a particular way as done in another case because each case must be treated according to its peculiar facts and circumstances. Exercise of discretion is based on the peculiar facts and circumstances of each case.

Although the case of Ola v. Williams (supra) was decided on stay of execution, yet the aspect that deals with exercise of discretion in granting or refusing a stay is on all fours with the instant case. In Ola v. Williams (supra) my learned brother Dalhatu Adamu, JCA (as he then was) aptly observed thus:-

“An application for stay is on equitable remedy and it is granted at the discretion of the court which is to be exercised judiciously and judicially. Consequently, every application for stay is to be decided on its peculiar facts and circumstances as well as on its own merits and decided cases or previous authorities do not constitute binding precedents but merely serve as guides in the exercise of such discretion. In other words, no one case can be authority for another in matters of discretion otherwise that would in effect be putting an end to the discretion. Thus the present case must be decided under its peculiar circumstances and on its merit notwithstanding the decision of the Court of Appeal in the Regency Council of Olota v. Shodeinde (1998) 6 NWLR (Pt.552) 72.” PER HUSSEIN MUKHTAR, J.C.A.

COURT: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH A JUDICIAL DISCRETION EXERCISED BY A COURT

A judicial discretion exercised by a court will not generally be interfered with by the appellate court even if the latter would have exercised such discretion differently. The appellate court will only interfere if the discretion is exercised upon wrong principles of law or under misapprehension of the facts in order to correct the injustice that would have otherwise occasioned. See Jimoh v. C.O.P. (2004) 17 NWLR (Pt. 902) 389 at 405 paras C-E.

In Saraki v. Kotoye (1990) 4 NWLLR (Pt. 143) 144 at 188 paras F-H, Agbaje, JSC spoke on the attitude of an appellate court to exercise of discretion by a trial court as follows:-

“And finally I must remind myself that the present appeal is in essence one against the exercise of a discretion by the lower court. So it is necessary to bear in mind the principles governing the consideration of such an appeal. In this regard I refer to the case of Hadmor Productions Ltd. v. Hamilton (1983) A.C. 191 at 220 cited to us by Counsel for the plaintiff. At page 220 if was held:-

The proper role of the Court of Appeal in a matter of this sort is not to interfere with the decision of the trial court merely upon the ground that the appellate court would have exercised the discretion differently.’

It should interfere only on one of the following grounds:-

(i) that it was based upon a misunderstanding of the law or of the evidence;

(ii) that further evidence before the appeal court shows that some inference that particular fact existed or did not exist were erroneously made by the court of trial on the evidence then available to it; and

(iii) that since the making of the order there has been a change of circumstances.” PER HUSSEIN MUKHTAR, J.C.A.

WORDS AND PHRASES: MEANING OF THE TERM FUNCTUS OFFICIO

In the case of United Bank for Africa v Ajileye (1999) 13 NWLR (Pt.633) the term ‘functus officio’ was defined thus:

“the term functus officio means a task performed to fulfil the function, discharge the office, or accomplish the purpose and therefore of no further force or authority. The court lacks potency to review, reopen or revisit the suit for any purpose whatsoever.”

Similarly, the Court of Appeal, Lagos Division, in Ulomo Investors (Nig.) Ltd. v. Alhaji Isiyaku Suleiman (2003) FWLR (Pt.169) 1186 reiterated that:-

COURT: GENERAL RULE ON A COURT BECOMING FUNCTUS OFFICIO

As a general rule, a court is not permitted to reverse itself on taking a decision on an issue in the same proceedings. Having so taken decision, it is either that the court on that issue or is bound by it as an issue estoppel. After a court has made on order or given a judgment if becomes functus officio and cannot charge or reverse the same except under the very restricted slip rule.”

In Obi v. Obi (2004) 5 NWLR (Pt.867) 647 at 659 R.D. Muhammad, JCA observed thus:-

“An order, no matter how unorthodox and unconventional, irrespective of whether or not the trial Judge was right to make it, is a subsisting order of the court, unless it is set aside. A judgment of a court of law, no matter how incorrectly arrived at, subsists until set aside by a competent court. A court cannot ignore an order which it made and strike out a suit because such order is still a subsisting order of a court until it is set aside. Whoever is aggrieved with the order should appeal. In the instant case, because of the subsisting order of the trial court, the court was wrong in striking out the suit.”

The learned jurist went further of pages 658-659 paragraphs H-B to hold as follows:-

“After a Judge has delivered his judgment, he becomes functus officio in the matter and cannot re-open the matter again in order to take fresh evidence from the parties. Thus, once a Judge has delivered his final judgment in a suit, he ceases to be seized of the matter and cannot reopen the suit for pay purpose whatsoever except for making ancillary orders, such as on order for stay of execution of the judgment or for ordering the judgment debt to be paid by instalment.” PER HUSSEIN MUKHTAR, J.C.A.

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal emanates from two interlocutory decisions of the High Court of the Federal Capital Territory Abuja delivered by Bello, J. granting an order for stay of proceedings and subsequently ordering further hearing in the case after severing the 1st and 2nd accused person’s case from that of the 3rd accused. The two orders were respectively made on the 14th and 20th December, 2010 with both of which the appellant was aggrieved.

The three respondents ore jointly charged as accused persons before the lower court. After pleading “not guilty” to the 17 count charge, the 1st and 3rd accused persons/respondents brought an application challenging the competence of the charge and the jurisdiction of the court to try them. The court, in its ruling delivered on the 14th October, 2010, held that the counts were valid and competent. The 3rd accused was dissatisfied with that ruling and appealed against it. He then filed an application for stay of proceedings pending the determination of that appeal. The court below on the 14th December, 2010 in a reserved ruling granted the application and ordered stay of further proceedings pending the determination of the appeal as per the relief sought for in the motion.

Thereupon, counsel for the 1st accused person asked the court orally to order for severance or separate trials of the charges so that trial could proceed in respect of the 1st accused person only, was objected by the prosecuting counsel as well as the counsel for the 3rd accused person on the ground that the court was functus officio and bound by the order for stay of proceedings granted in the ruling that was just delivered. On the 20th December, 2010 the lower court delivered its second ruling separating the trial of the 1st and 2nd accused persons on the reason that the earlier order of 14th December, 2010 was restricted only to the 3rd accused person on whose application it was granted. The court then fixed the trial of the 1st and 2nd accused persons on the 4th, 5th and 6th January, 2011. The twin rulings made on the 14th and 20th December, 2010 form the bedrock of the instant appeal which is premised on five grounds and from which the following three issues were distilled for determination:-

“1. Whether the learned trial judge was justified in granting a stay of proceedings despite subsisting superior court’s decision brought to the notice of the court. [Related to ground 1]

2. Whether the learned trial judge has the jurisdiction to take further hearing of the case of the 14th and 20th December, 2010, when the order of the 14th of December, 2010 staying further proceeding pending the determination of the appeal was subsisting and binding on the court and on parties. [Related to grounds 2 & 3]

3. Whether the trial high court can proceed to hearing and trial of the criminal charges, by separating the accused persons when proceeding and decision of 20th December were unconstitutional, null and void.” [Related to grounds 4 & 5]

The 1st respondent had raised a preliminary objection in his brief filed on 2/2/2011 but deemed filed on 7/3/2012 without giving the three days mandatory notice of the objection as required by order 10 rule 1 of the Court of Appeal Rules 2011. The preliminary objection was therefore not only incompetent but was effectively abandoned by the 1st respondent of the hearing of the appeal by making no attempt to move it before the hearing of the appeal. It is accordingly struck out.

The 1st respondent formulated three similar issues for determination while the 3rd respondent adopted the appellant’s issues hook, line and sinker. The above three issues as formulated by the appellant are therefore adopted for the determination of this appeal.

Issue One

Whether the learned trial judge was justified in granting stay of proceedings despite subsisting superior court’s decision brought to the notice of the court.

The learned senior counsel for the appellant contended that the learned trial judge erroneously granted an order for stay of proceedings in the criminal trial pending before him without satisfying the conditions precedent to granting such order as laid down by the Supreme Court and the Court of Appeal as no special circumstances were shown to justify the grant of an order for stay of proceedings. The decisions relied upon in opposing the application for stay of proceedings include: Alammieye-seigha v. F.R.N.(2006) 16 NWLR (Pt.1040) 1 at 116-117; Ubanatu v. COP (2000) 2 NWLR (Pt.643) 115 at 129; Mohammed Sani Abacha v. The State (2002) 11 NWLR (Pt.779) 437; Okeke v. F.R.N. (2009) 9 NWLR (Pt. 1145) 94 at 106-107; IGP v. Fatose (2007) 9 NWLR (Pl. 1039) 263 at 279.

The appellant urged the court to hold that the learned trial judge erred in law in disregarding the decisions of the superior courts and arrived at a wrong and unjustified decision.

The learned counsel for the 1st respondent, however, argued that order for stay of proceeding made by the lower court on the 4/12/2010 was proper as the court acted judicially and judiciously in granting it. He submitted that the court was not bound by the decisions of superior courts in matters of discretion like stay of proceedings. Reliance was placed on the authority in Moses Ola v. Williams (2003) 5 NWLR (Pt.812) 48 of 63 paras. C – F; Ajayi v. S.E.C. (2009) 13 NWLR (Pt.1157) 1 at 33 paras A-D.

It was further submitted for the 1st respondent that the lower court has not been shown to have erred in principle in the exercise of its discretionary power, to warrant interference by the appellate court. The court was urged to resolve this issue against the appellant. The 2nd respondent did not argue the first issue and has therefore abandoned same leaving the issue to be decided on arguments canvassed by the appellant and the 1st respondent. The 3rd respondent was not entitled to be heard as he filed no brief at all. The appellant, having alleged that the lower court’s decision was perverse, was duty bound to show such perversity. As rightly argued by the learned counsel for the 1st respondent matters of discretion are exercised according to the facts and circumstances of each particular case. Once the principles guiding the exercise of such discretion are followed, the mode of exercising it cannot be tied to a particular way as done in another case because each case must be treated according to its peculiar facts and circumstances. Exercise of discretion is based on the peculiar facts and circumstances of each case.

The applicant has a duty to show that the decision of the court below ordering stay of proceedings was perverse or potently erroneous or that it has reached wrong conclusion from misapplication or misconstruction of the principles of law or procedure. Otherwise the appellate court will not be entitled to interfere therewith. A judicial discretion exercised by a court will not generally be interfered with by the appellate court even if the latter would have exercised such discretion differently. The appellate court will only interfere if the discretion is exercised upon wrong principles of law or under misapprehension of the facts in order to correct the injustice that would have otherwise occasioned. See Jimoh v. C.O.P. (2004) 17 NWLR (Pt. 902) 389 at 405 paras C-E.

In Saraki v. Kotoye (1990) 4 NWLLR (Pt. 143) 144 at 188 paras F-H, Agbaje, JSC spoke on the attitude of an appellate court to exercise of discretion by a trial court as follows:-

It should interfere only on one of the following grounds:-

(i) that it was based upon a misunderstanding of the law or of the evidence;

(iii) that since the making of the order there has been a change of circumstances.”

In the instant case the appellant has not shown any justification for this Court to interfere with the lower court’s exercise of discretion in granting the order for stay of proceedings. The first issue must therefore be and is resolved against the appellant. The related ground one of the appeal correspondingly fails.

Issue Two

Whether the learned trial judge had the jurisdiction to take further hearing in the case on the 14th and 20th of December, 2010, when the order of the 14th December, 2010 staying further proceedings pending determination of the appeal was subsisting and binding on the court and the parties.

The learned Senior Advocate for the appellant/applicant argued that the lower court having ordered stay of proceedings on the 14th December, 2010 upon the application of the 3rd accused person pending an appeal against the refusal of the court to quash charges against the 1st and 3rd accused persons, has no power to order further hearing in the same case by severing the trial of the 1st and 2nd accused persons and adjourning the case for continuation of hearing as it did on the 20th December, 2010. It was submitted that the learned trial judge was in error when he ordered stay of proceedings on the one hand and turned around to order continuation of hearing on the other.

It was contended for the appellant that the court generally has no power to sit on appeal over or review its own decision. Such power belongs only to the appellate court. The lower court, he further submitted, was functus officio on stay of proceedings and lacks the competence to review that decision. It was tantamount to usurping the appellate court’s power. See Ikpong v. Udobong (2007) 2 NWLR (Pt.1017) 184 at 194-195.

The learned senior counsel submitted that the court could not approbate and reprobate at the same time. See Ukachukwu v. Uba (2000) 4 NWLR (Pt. 651) 70; Akpopure v. Okefi (1973) 12 S.C.111; Makinde v. Adeogun (2009) 1 NWLR (Pt.1123) 575 at 591-592; Idighije v. Nwaogu (2009) 2 NWLR (Pt.1125) 231 at 252.

It was submitted for the appellant that the reserved ruling of the court delivered on the 14th December, 2010 on the application for stay of proceedings was final on the issue and could only be reviewed by the Court of Appeal. The decision was binding not only on the parties but also on the court.

It was further submitted that the court has no jurisdiction or power to review or set aside, vary or modify its final decision to stay further proceedings pending appeal as it did in the ruling of 20th December, 2010 because the conditions under which the court could do so did not exist such conditions were laid down by this Court in the case of Ukachukwu v. Uba No. 2 (2005) 9 NWLR (Pt.930) 370 at 389 where my learned brother Galadima, JCA (as he then was) set out the law as follows:-

“On when court can set aside its final judgment – A court can set aside its judgment in any of the following five instances and circumstances:-

(a) When the judgment is obtained by fraud or deceit either in the court, or of one or more parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave [Alaka v. Adekunle (1959) LLR 76; Olufunmise v. Falana (1990) 3 NWLR (Pt.136) 1 referred to.];

(b) when the judgment is a nullity, a person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have if set aside [Skenconsult Ltd. v. Ukey (1981) 1 SC 6; Ogueze v. Ojiako (1962) 1 SCNLR 112; Okafor v. A.-G. Anambra State (1991) 6 NWLR (Pt.200) 6591:

(c) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it [Agunbiade v. Okunoga (1961) All NLR 110; Obimonure v. Erinosho (1966) 1 All NLR 250 referred to];

(d) where the judgment was given in the absence of jurisdiction;

(e) where the procedure adopted was such as to deprive the

(f) decision or judgment of the character of a legitimate adjudication.

It was submitted for the appellant that the lower court was not faced with any of the above conditions. The decision in the ruling of 20th December, 2010 was therefore a nullity.

The learned counsel for the 1st respondent however contended that the two orders made on the 14th and 20th December, 2010 were separate and neither affected the validity of the other. It was argued for the 1st respondent that each of the applications leading to granting of each of the two orders was made under different circumstances by different parties. He submitted that the order for stay of proceedings was only final and renders the court functus officio only in respect of the 3rd accused who asked for it. He cited as an authority the case of Osuji v. Ekeocho (2009) 116 NWLR (Pt.1166) 81 at 120 paras. B-C where my learned brother Adekeye, JCA (as he then was) observed as follows:-

“The position of the law is clear that a court of law can only grant reliefs claimed by a party and not more’. It is trite that a court is duty bound to adjudicate between the parties on the basis of the claim formulated by them. Neither of the parties requested for partition of the family property. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a trial court. The court must hear the view of the parties before making an order different from the one claimed. In this case the court was wrong to have made the order for the sharing of the three buildings as the right of somebody must have been violated and he could not be denied the right to be heard in the circumstance and more over none of the parties specifically requesfed for such order. Abbas v. Solomon (2001) 15 NWIR (Pt.735) Pg.144; Korede v. Adedokun (2001) 15 NWLR (Pt.736) Pg. 483.”

The learned counsel for the 2nd respondent referred to the prayer in the motion filed by the 3rd accused before the lower court and contended that prayer was for stay of the entire proceedings and not part or portion thereof relating to him alone. He further contended that the ruling delivered on the 14th December, 2010 and the order made therein was in respect of staying the entire proceedings.

The learned counsel for the 2nd respondent submitted that the learned trial judge did not confine himself to making an order staying proceedings in relation to that portion of the proceedings pertaining to the 3rd accused person alone. It was argued that the 3rd accused did not apply for stay of proceedings against himself alone having regard to the fact that he was charged jointly with the other accused persons. The logical conclusion is that the order made by the court dated 14th December, 2010 was made for the stay of the entire proceedings and not part thereof.

This now leads to an examination of not only the order for stay by the court below but also the application that led to granting of the order. It is not in dispute that the application for stay of proceedings was only filed and moved by the 3rd accused person who also was the only party that filed an appeal. Stay of proceedings cannot be granted except upon pendency of an appeal pending the outcome of the appeal. It is therefore only logical that the two other accused persons who have no pending appeal and have not asked for a stay could not be affected by the application of the 3rd accused. Moreover, it will not be in tune with reason and common sense to allow one accused person to hold the others to ransom. The other two accused persons have as much right as the 3rd accused to be tried within reasonable time. No party can be allowed to over reach others by putting their trial on halt simply because he needs a stay for his own trial.

In the case of United Bank for Africa v Ajileye (1999) 13 NWLR (Pt.633) the term ‘functus officio’ was defined thus:

Similarly, the Court of Appeal, Lagos Division, in Ulomo Investors (Nig.) Ltd. v. Alhaji Isiyaku Suleiman (2003) FWLR (Pt.169) 1186 reiterated that:-

“The Latin tag ‘functus officio’ simply put, contemplates that once the court has given a decision or made an order in a matter before it, it legally becomes incapable of giving another decision or order on the same matter. As a general rule, a court is not permitted to reverse itself on taking a decision on an issue in the same proceedings. Having so taken decision, it is either that the court on that issue or is bound by it as an issue estoppel. After a court has made on order or given a judgment if becomes functus officio and cannot charge or reverse the same except under the very restricted slip rule.”

In Obi v. Obi (2004) 5 NWLR (Pt.867) 647 at 659 R.D. Muhammad, JCA observed thus:-

The learned jurist went further of pages 658-659 paragraphs H-B to hold as follows:-

The prayer in the motion clearly sought for stay of proceedings pending the hearing of an appeal filed by the 3rd accused person and for the avoidance of doubt the prayer at page 119 of the Record states as follows:-

“1. AN ORDER of Court staying further proceedings in Charge No.CR/65/2010: Federal Republic of Nigeria vs. Vincent Ogbulafor and two others (2) pending before His Lordship, Hon. Justice Bello, at the High Court of Federal Capital Territory, Abuja (High Court 3) pending the hearing and determination of the Appeal filed by the 3rd Accused/Applicant at the Court of Appeal Abuja Judicial Division, challenging the ruling of the aforementioned court delivered on the 14th day of October, 2010.”

The learned trial judge simply granted that prayer in respect of the 3rd accused/applicant. The lower court was therefore functus officio in respect of the application of the 3rd accused and no more. It therefore lacks jurisdiction to entertain any matter touching on the order for stay in respect of the 3rd accused person only who applied for and obtained an order for stay of proceedings pending his appeal to this court. The proceedings in respect of the 1st and 2nd accused persons are still live even in the absence of a consequential order to that effect. The proceedings taken on the 14th December, 2010 and the pronouncement of the lower court on the 20th December were therefore not only regular but were in fact necessary consequential orders that would have followed the stay of proceedings on the 3rd respondent’s case. From this appraisal the second issue cannot but be affirmatively resolved against the appellant. The corresponding grounds 2 and 3 therefore fail.

Issue Three

“Whether the trial high court can proceed to hearing and trial of the criminal charges, by separating the accused persons when the proceeding and decision of 20th December were unconstitutional, null and void.”

The resolution of the second issue has effectually rendered the third issue more or less superfluous as the same reasons for resolution of the former similarly resolve the later against the appellant.

The third issue is already subsumed by the second one and without much ado, the third issue is hereby resolved against the appellant. The corresponding grounds 4 and 5 are accordingly unsuccessful.

The resolutions of all the three issues against the appellant have rendered this appeal bereft of any substance. The appeal therefore fails and is accordingly dismissed. The two rulings delivered by the lower court on the 14th December 2010 and 20th December 2010 are hereby affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I have the privilege of reading before now the draft of the Judgment of my learned brother HUSSEIN MUKHTAR, JCA, just delivered. The issues for the determination of the appeal have been meticulously dealt with.

I however want to make some comments by way of emphasis on the issues in this appeal.

The 3rd Accused Person/Respondent appealed against the decision of the trial Court dismissing his objection to the validity of the 17 Count Charge. The 1st and 2nd Accused Persons/Respondents did not appeal against the decision therefore they are deemed to have accepted the Ruling. It was the 3rd Accused Person/Respondent who did not accept the said Ruling affirming the validity of the 17 Count Charge against him. He appealed and applied for stay of further proceedings.

The trial Court granted the application for stay of further proceedings by the 3rd Accused Person/Respondent.

The question that arises is whether the learned trial Judge after the Ruling of 14th December, 2010 was functus officio and could not make an order at the instance of the 1st Accused Person/Respondent severing the trial of 1st and 2nd Accused Persons/Respondents from that of the 3rd Accused Person/Respondent.

It is trite law that in the process of adjudication Courts must act in accordance with the settled principles of law, in that after a Court has given its final decision in a matter before it for adjudication, it is precluded from reviewing or reversing itself. The Court is said to be functus officio.

In the instant case, the proceedings in respect of the 1st & 2nd Accused Persons/Respondents will not be affected by the order made in favour of the 3rd Accused Person/Respondent staying further proceeding.

Consequent upon the foregoing it is my view that a Court has inherent powers in the interest of the accuracy of its decision to correct its order. The learned trial Judge was therefore right in severing the trial of the 3rd Accused Person/Respondent from the rest of the Accused Persons.

See the case of:-

Nigerian Army vs. Major Jacob Iyela (2008) 16 NWLR Part 118 page 115.

It is for the above reason and fuller reasons in the lead Judgment that I hold that this appeal lacks merit and it is dismissed.

The decision of the trial Court delivered on 20th December, 2010 which severed the trial of the 3rd Accused in Charge No: CR.65/10 from the trial of 1st and 2nd Accused Persons/Respondents is hereby affirmed.

EJEMBI EKO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, HUSSEIN MUKHTAR, JCA. I agree with his analyses and conclusions on all the issues. I however add a little to the said judgment.

This appeal is against the Ruling delivered by I. U. Bello, J of the High Court of the Federal Capital Territory on 20th December, 2010 in the charge No CR.65/10. The Ruling is at pages 166 – 173 of the Record of Appeal. The portion that is of material concern to this appeal is at pages 170 – 173, and it is herein below reproduced; to wit –

“Now let me address a fundamental issue raised by the Mr. Awa SAN that is the issue of functus officio with regard to the jurisdiction of this Court to deal with the matter any more hearing stayed proceedings. It is my view that the issue of severance of trial is always consequential to an event and traditionally associated with stay of proceedings in criminal proceedings and that means it cannot proceed the request for and granting of stay of the proceedings. I am not aware that this or any other court is by law excepted from making consequential orders which have bearings and well rooted on decision so handed down by the court. Beside that, let me take the liberty to state and I am certainly entitled to interfere the ruling of this court. The ruling of 14/12/2010 staying proceedings as sought for by 3rd Accused is of restrictive application. Its imports is to stay proceedings in relation to the accused on the charge before the court. I do not doubt my belief on this view (though I am not infallible). The Application for stay as made by the 3rd Accused was not a joint application in other words, 1st and 2nd Accused are not in association with the application for stay by which the 3rd Accused had expressed his desire not to be put on trial on the charge which the believe his application to quash, was wrongly overruled and, he is on Appeal thereon. The position is clear ‘DON’T TRY ME’ is the message. Both 1st and 2nd Accused by not staying proceedings for what ever reasons do in my view submit themselves for the trial and in view or any analysis regarding the extent of involvement of each of the accused persons in terms of relationship with the 17 count charge, I believe the circumstance of the case would be leaning towards position consideration for severance of trial, within any conscience is the feeling that the rule of competences (joint trial) should give way to severance of the trial for that will be in accord with the constitutional requirement for timeous disposal of case.

Let (sic) say with concerns that it has become the tradition to run to Appeal Court no matter which way the decision of the court goes on interlocutory issues. While no one can could be disallowed to enjoy his right of Appeal it is lamentable that in a number of such cases, the ultimate intention is to delay the proceedings so, who ever desires to delta such proceeding against himself let it be, and who ever desires to proceed on fast tract, let it be.

I now came to consider the position of the prosecution who emphatically submitted that the prosecution is desirous to sever the trial so that we can make progress but for the ruling of the court staying proceedings. I have already explained the ruling of this court herein alone; I dismiss the submission that this court herein alone; I dismiss the submission that this court is functus officio on the entire case.

The interest of justice calls for decision that a fair and just in the exercise of the discretionary powers of this court. In this regard particularly as I posited above that 2nd Accused has not filed any appeal against the ruling of this court or is not affected by the stay order which is purely a matter for the 3rd Accused. Even in divine justice, every one answerer for his sins none caring for another and same goes for rewards.

The entire opposition against the application for severance is dismissed. The application is hereby granted as prayed by 1st Accused. The prosecution is at liberty to achieve its desire of severance of the trial, disposition which, the prosecution has indicated before the court.

Signed: 20/12/2010.” [underlinings mine]

As could be seen from the passage above reproduced the thrust of the opposition of the respective counsel to the Prosecutor/Appellant and the 2nd Accused/Respondent is their argument that the order made on 14th December, 2010, at the instance of the 3rd Accused/Respondent that further proceedings in the joint trial of himself, and 1st and 2nd Accused/Respondents be stayed pending the hearing and determination of his (3rd Accused) appeal against the decision of the trial court dismissing his objection to the validity of the 17 count charge (as they affect him) and which he was being jointly tried with others.

The 1st and 2nd Accused persons did not appeal that decision. They are therefore deemed to have accepted the Ruling and their fate. At this stage the status quo favoured the continuance of the proceedings against them.

The 3rd Accused, who did not accept the said Ruling affirming the validity of the 17 count charge against him, appealed, and prayed that further proceedings in the matter be stayed pending the determination of his appeal. In the ruling on the application of the 3rd Accused for stay of further proceedings delivered on 14th December, 2010, the learned trial Judge, at page 164 of the Record, stated –

My position is that this court can not block such constitutional right by refusing the Applicant the right to contest, by interlocutory appeal, the ruling of this court. Consequently, I am to grant the application. The opposition mounted by the prosecution is hereby discountenanced. The application is granted and order for stay of proceedings as sought is hereby made as prayed.

Be it noted for emphasis that only the 3rd Accused appealed the ruling of the trial court that affirmed the legal validity of the 17 count charge the 3rd Accused and others were defending. Only the said 3rd Accused asked that the proceedings in the said 17 count charge be stayed for him to pursue his appeal. The application granted was the application of the 3rd Accused, who, never, in moving the said application, pretended that he was moving the application for and on behalf of the other accused persons, jointly charged with him. It is for this reason that the 1st Accused’s counsel rose promptly to demand that the trial be severed so that our client, the 1st Accused, proceeds with the trial. This is a trial where the accused persons must be tried jointly and the 3rd Accused, has nothing to loose by the severance [See page 164 of the Record].

Let me again repeat that the 1st Accused thinks that the appeal and the stay of proceedings would delay his trial. He wants to know his fate within a reasonable time, and not to wait endlessly in a state of uncertainty under the sword of Damocle. He is entitled to speedy trial under Sections 35 and 36 of the Constitution, 1999. In the circumstance, I think he was entitled to pray, in his own interest, that the order made pursuant to the application of the 3rd Accused, that further proceedings in the matter be stayed, be varied. There is a precedent for this. General Bamaiyi, who was being jointly tried for murder at the Lagos State High Court with Major Al-Mustapha and others, asked the trial court to severe his trial from that of others who, particularly Major Al-Mustapha, had resorted to interlocutory appeals that General Bamaiyi was not interested in and which he considered to be delaying proceedings. The trial of General Bamaiyi was severed and he was tried separately from the other accused persons, including Major Al-Mustapha.

At page 164 of the Record Mr. Awa, SAN of counsel to 2nd Accused had erroneously submitted at the trial court that it was “not within the province of the court to suo motu severe the charge.” It was the 1s Accused, not the trial court, who prayed that the trial be severed. The senior counsel further submitted that the trial court, by its order, at the application of the 3rd Accused, staying further proceedings had become functus officio.

This appeal is at the instance of the prosecutor, who at page 165 of the Record had stated-

We are desirous of severing the trial but the ruling of the court has put us in a dilemma. We are agreed with the severance of the charge and our witnesses are ready and we are prepared to proceed.

It therefore becomes incredible and incredulous to hear that the same prosecutor has brought this appeal on grounds inter alia that –

the learned trial Judge erred in law by granting an order of stay of proceedings.

On one hand, and on the other hand that the learned trial Judge erred in law, having become functus officio by his earlier order staying further proceedings, in severing the trial. Counsel seems to be approbating and reprobating on the same issue of severance. I have read the various briefs filed and exchanged in this appeal, and I agree with the 2nd Respondent that the main issue in this appeal is whether the learned trial Judge, by his order of 14th December, 2010 staying further proceedings in the matter, in view of the appeal of the 3rd Accused’s appeal, was functus officio and therefore could not make the order, at the instance of the 1st Accused, severing the trial of 1st and 2nd Accused from that of 3rd Accused.

The principle of a court being functus officio is trite. Once a court has given a decision on an issue or matter placed before it for adjudication it becomes functus officio and it is precluded from reviewing or varying the form of the judgment or order apart from the correction of clerical mistakes or accidental slips. See NIGERIAN ARMY v. MATOR JACOB IYELA (2008) 16 NWLR [pt.1118] 115 in which the Supreme Court cited with approval the statement of the law on functus officio in THYNNE v THYNNE (1955) 3 ALL E.R. 129 at 146 that –

Where a court has decided an issue and the decision of the court is truly embodied in the judgment or order that has been made effective, then the court can not re-open the matter and can not substitute a different decision in place of the one which has been recorded. Those who seek to alter it must in those circumstances invoke such appellate jurisdiction as may apply. But if a case arises where in the interest of accuracy it seems desirable to amend some part of the judgment other than its operative and substantive part it would seem to be regrettable if the inherent powers of the court were limited or confined.

In my judgment I hold the view that a court has inherent powers in the interest of the accuracy of its decision or order, where it is desirable to amend some part of the judgment or ruling other than its operative and substantive part, to correct its order, as in the instant case. The operative and substantive part of the order staying proceedings in the 17 count charge pending the determination of the appeal launched by the 3rd Accused, is the ruling allowing the application of the 3rd Accused for stay of proceedings pending the determination of the appeal of the said 3rd Accused. The decision was rendered to secure the constitutional rights of the 3rd Accused. The 1st and 2nd Accused/Respondents were not party to that application. Contrary to the submission of Mr. Awa, SAN the variation of the order of stay of proceedings or the severance of the trial of the 1st and 2nd Accused from the trial of 3rd Accused will neither affect nor prejudice the fair trial of 1st and 2nd Accused on one hand, nor the fair trial of the 3rd Accused on the other hand. Rather, the severance of the trial would enhance the right of 1st and 2nd Accused to speedy trial guaranteed by Sections 35 and 36 of the 1999 Constitution. It also secures the 3rd Accused’s right of appeal guaranteed by the same Constitution. The 3rd Accused brought the application for stay of further proceedings to secure his right of appeal. The learned trial Judge acceded to that request. I am therefore of the considered view that the learned trial Judge was right, when in severing the trial of the 3rd Accused from the rest of the accused persons he limited the order for stay of further proceedings to the proceedings as it relates to the 3rd Accused only.

In view of the foregoing therefore, I hereby dismiss the appeal and affirm the decision and order made by the trial court on 20th December, 2010. Consequently, I order severance of the trial of the 3rd Accused in the charge no CR.65/10 before the trial court from the trial of the rest of the accused persons in the said charge. The stay of proceedings as ordered by the learned trial Judge (Bello, J) in respect only of the 3rd Accused, who has appealed, subsists and shall continue to subsist pending the hearing and determination of the said appeal by the said 3rd Accused.

Appearances

V. O. Awomolo, Mrs. with Olowole Balogun, Esq and Yewandi Quadri, Esq.For Appellant

AND

J. N. Egwuonwu, Esq with A. B. Secondus – for the 1st Respondent

F. E. Abebe, Esq. – for the 2nd Respondent

Victor Edem, Esq. for the 3rd RespondentFor Respondent