ADEYINKA AJIBOYE v. FEDERAL REPUBLIC OF NIGERIA
(2012)LCN/5616(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of October, 2012
CA/IL/C.21/2012
RATIO
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED IN A PROCEEDING
By law, since the respondent’s preliminary point of objection fits, squarely, into the domain of the almighty jurisdiction of court, the law grants the respondent the licence to raise it at any stage of the proceedings and before any court of law, see Amoshima vs. State (2011) 14 NWLR (Pt.1268) 530; Agbiti vs. Nigerian Navy (2011) 4 NWLR (Pt.1236)?; Olowu v. Nigerian Navy (2011) 18 NWLR (Pt.1279) 659; FRN v. Ifegwu (2003) 15 NWLR (Pt.842) 1143. PER OBANDE OGBUINYA, J.C.A.
INTERPRETATION: CARDINAL RULE OF INTERPRETATION OF STATUTES
It is trite law that where the words or provisions of a statute are clear and unambiguous, the court have the mandate of the law to employ the agelong literal rule of interpretation of enactments in construing them. PER OBANDE OGBUINYA, J.C.A.
INTERPRETATION: PURPORT OF THE LITERAL RULE OF INTERPRETATION
The purport of the literal rule of interpretation is that clear provisions of legislations should be given their plain and ordinary grammatical meanings without interpolation, except it would lead to absurdity or conflict with other provisions of the law, see Amoshima vs. State (supra); Tanko vs. State (2009) 4 NWLR (Pt.1131) 430. PER OBANDE OGBUINYA, J.C.A.
COURT: WHETHER THE COURTS IN DESERVING CIRCUMSTANCES ARE MANDATED TO UPHOLD OUSTER PROVISION
The law mandates the courts, in deserving circumstances, to uphold ouster provision, see Misc Offences Tribunal vs. Okoroaafor (2001) 18 NWLR (Pt.745) 295. PER OBANDE OGBUINYA, J.C.A.
JURISDICTION: INGREDIENTS OF JURISDICTION
At this juncture, it is germane to observe that a court of law is competent to entertain a matter when: (1) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another. (2) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction. (3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. These ingredients of jurisdiction had been sanctified by the Supreme Court in loads of judicial authorities, see Madukolu vs. Nkemdilim (1961) NSCC (vol.2) 374 at 379; Misc Offences Tribunal vs. Okoroafor (supra); Olowu vs. Nigerian Navy (supra); Agbiti vs. Nigerian Navy (supra). PER OBANDE OGBUINYA, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ADEYINKA AJIBOYE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
OBANDE OGBUINYA, J.C.A. (Delivering the Lead Ruling): By a motion on notice, dated and filed on 02/05/2012, the applicant prayed this court as follows:
“1. An order of injunction restraining the respondent from taking any further step in the prosecution of the applicant in Case No.KWS/56C/2011 pending the hearing and determination of this application.
2. An order of injunction restraining the respondent from taking any further step in the prosecution of the applicant in case No.KWS/56C/2011 pending the hearing and determination of the appeals filed against the Rulings of the trial judge on 21/12/2011, 16/3/2012 and 17/4/2012.
3. An order staying further proceedings in this case pending the determination of the Appeals to the court of Appeal filed by the applicant on 23/12/2011 and
4. Any order other orders which this court may deem fit to make.
GROUNDS OF THE APPLICATION
1. The Appellant/Applicant being dissatisfied with the Rulings of the lower court delivered on 23/12/2011 and 20/3/2012 admitting two purported confessional statements in evidence, filed two Notice of appeal, Exhibits A and B attached.
2. The case against the Appellant/Applicant is premised principally on the alleged confessional statements.
3. The alleged confessional statements were not made voluntarily by the Appellant.
4. The alleged statements are damning and their wrong admission constitutes grave danger to the defence of the applicant.
5. Irreparable damage would be done to the applicant’s defence if he should wait until final appeal before complaining of their wrong admission in evidence.
6. The Appellant’s application for stay of proceedings at the lower court pending the hearing and determination of his appeal in Exhibits A and B was refused by the lower court.
7. The substantive case will not be adversely affected if same is stayed or an order of injunction is granted against the respondents pending the outcome of this application or even pending the hearing and determination of the applicant’s appeal.
8. Prosecution will not lose anything if proceedings are stayed pending the hearing and determination of this application.
9. It is not the policy of the law/court to rush or be stampeded to haunt a man presumed innocent to conviction and prison.
10. It is in the interest of justice to grant the application.”
The background facts leading to the application are straightforward. The applicant, who was an employee of the Guaranty Trust Bank, Ilorin branch, Ilorin, is undergoing criminal prosecution in the High Court of Kwara State, Ilorin in Charge No.KWS/56C/2011 presided over by Hon. Justice M. Abdulgafar. The respondent, the Economic and Financial Crimes Commission, one of the recognized anti-graft bodies in Nigeria, arraigned the applicant in a four-count information of the offences of theft and criminal breach of trust contrary to sections 289 and 314 of the Penal Code respectively. Following that arraignment, the respondent, after some delay, opened its case and called four witnesses, out of its fourteen listed witnesses, in proof of the charge against the applicant.
In the course of the trial proceedings, there arose a controversy as to the voluntariness or otherwise of the alleged extra-judicial confessional statements made by the applicant in the process of investigation of the alleged criminal offences. That controversy, eventually, resulted to the lower court conducting trial within-trial proceedings in order to determine the voluntariness or otherwise of those pre-trial confessional statements. During that mini-trial, the lower court, on 23/12/2011 and 16/03/2012 in course of evidence of PW1 and PW3 as shown on pages 148 and 172 of the record of appeal respectively, delivered rulings wherein it admitted those alleged confessional statement in evidence. The appellant was dissatisfied with those two rulings. Consequently, he appealed against them by dint of two notices of appeal, filed on 23/12/2011 and 20/03/2012, located on pages 178 – 180 and 181 – 183 of the printed record respectively.
Following the filing of the two appeals, the applicant, on 16/04/2012, filed an application for a stay of proceedings of his trial in the lower court. The application was, duly, heard by the lower court which, in a considered ruling, delivered on 17/04/2012, refused it for want of merit. Again, the applicant appealed against that ruling on 19/04/2012 as found on pages 184 – 186 of the record. It is sequel to that refusal that the applicant, as enjoined by law, brought this present application which had been set out in extenso at the cradle of this ruling. Barring semantics, the application is for a stay of the applicant’s trial proceedings in the lower court pending the determination of his two appeals before this court. It is, therefore, in the main, a replication of that heard and refused by the lower court.
The application is supported by an 18-paragraph affidavit sworn to by the applicant himself. There are five annexures attached and referred to in the supporting affidavit and marked as exhibits therein. Exhibits AA and AB are the two notices of appeal filed on 23/12/2011 and 20/03/2012 respectively against the two rulings admitting those alleged confessional statements in evidence. Exhibits AC and C are the applicant’s applications, through his learned counsel, for compilation of record of appeal and copy of the ruling of 17/04/2012 dated 04/04/2012 and 18/04/2012 respectively. Exhibit D is the applicant’s appeal against the lower court’s refusal of his application for a stay of proceedings made on 17/04/2012.
On the other hand, the respondent, in opposition to the application, filed a 15-paragraph counter-affidavit deposed to by one Umaru Iyah, an investigating officer in the employ of the respondent commission. In view of that opposition, this court ordered parties to file written addresses in order to fastrack the hearing and disposal of the application. The parties complied with that order.
The application was heard on 18/09/2012. In that regard, learned counsel for the applicant, Toyin Oladipo, Esq., adopted the applicant’s written address, filed on 23/05/2012, as representing his arguments in support of the application. He urged the court to grant it. Similarly, learned counsel for the respondent, Rotimi Oyedepo, Esq., adopted the respondent’s written address/submission, filed on 16/06/2012, as representing his arguments against the application. Learned counsel urged the court to dismiss it.
ARGUMENTS OF THE PARTIES.
Learned counsel for the applicant submitted that the most important consideration in an application of this nature is whether or not there is a viable appeal. He referred the court to the notices of appeal, exhibits AA, AB and D attached to the application. He explained that the appeals in exhibits AA and AB were against the admission in evidence of the alleged confessional statements made by the applicant while exhibit D was an appeal against the refusal of the lower court to stay proceedings. He noted that that appeal, also, raised a constitutional issue, that is, the constitutionality of section 40 of the Economic and Financial Crimes Act. He urged the court to hold that the appeals were viable and substantial and that exhibit D raised a novel issue regarding whether or not section 40 of the Act was inconsistent and derogated from sections 36 and 271 of the 1999 constitution. He relied on the cases of Young Shall Grow vs. Alhaji Afolabi (2002) NWLR (Pt.135) 785 at 795 – 796 and Ukachukwu & Sons Ltd vs. Okeke (2001) FWLR (Pt.71) 1791.
Learned counsel contended that there was need to preserve the res and prevent undue hardship from being occasioned to the applicant. He took the view that if the application failed, the lower court would continue with the criminal proceedings against the applicant with the likelihood that he might be convicted and sent to prison during the course of and before the appeal, challenging the admissibility of those alleged confessional statements, would be heard and determined. He argued that in the event that the applicant’s appeal succeeded, and the court expunged the said statements, he would have served considerable part of the term of sentence prescribed in the Penal Code for the offence with which he was charged with. He added that the applicant’s appeal on the refusal of the lower court to stay proceedings would be rendered nugatory. He urged the court to hold that in the circumstances of those appeals, it would be just and equitable to grant the application. He placed reliance on the cases of Ministry of Works & Housing vs. Thomas Nig. Ltd (No.1) (2001) FWLR (Pt.47) 1089 at 1094 – 10985; NALSA Team Associates vs. NNPC (1996) 3 NWLR (Pt.439) 621 at 632; Ishaku v. Kantiok (2012) 7 NWLR (Pt.1300) 457 at 504 to support his contentions.
Learned Counsel urged the court not to entertain, at this stage, the question whether or not section 40 of the Act prohibited the hearing of such an application for stay of proceedings or injunction. He reasoned that that question was for the substantive appeal; adding that it would be premature to delve in that in the application. He cited the case of United Spinners Ltd vs. Chartered Bank Ltd (2001) FWLR (Pt.66) 640 at 654 – 655. He urged the court, based on those submissions, to grant the application.
For the respondent, its learned counsel raised a preliminary point that that application was incompetent pursuant to the provisions of section 40 of the Act. He quoted the provision and insisted that the court ought not to entertain the applicant’s application in that it was illegal. He noted that it would be idle to argue that the provision of section 40 of the Act was unconstitutional. He explained that the constitution recognized and provided for the right of any party who was dissatisfied with the decision of a court to appeal against same, there was no provision therein which gave a right to apply for stay of proceedings before a court. He added that nothing in the constitution prescribed that an application for stay must be granted once an appeal was filed.
Learned counsel reminded the court of its inherent and discretionary jurisdiction to consider and/or grant an application of that nature in deserving cases. He referred to the case of- Akilu vs. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122 at 199 – 200. He countered that inherent powers of the court would only come into play in the absence of express statutory provisions when the court would fill the gap by invoking such powers to do justice in deserving cases. He added that where there were clear and express provision of statutes, as in the instant case, the constitutional duty of the court would be to give effect to them. He cited the case of Olatunji vs. FRN (2003) 3 NWLR (Pt.807) 406 at 424 to support his argument.
He maintained that the provision of section 40 of the Act was in line with the provisions of the 1999 Constitution and the intention of the legislature was to remove impediments in the way of expeditions hearing of criminal matters before the courts. He added that the provision sought to avoid unnecessary delay in dispensing justice to parties and give them fair hearing. He posited that the applicant would appear to be asking the court to act contrary to the constitutional and statutory provisions. He urged the court to hold that the application was incompetent because of those statutory provisions that forbade it from entertaining same.
In the alternative, learned counsel submitted that a grant of stay of proceeding involved exorbitant judicial exercise because of the delay associated with it so that an applicant who engaged in it to waste the time of the court would have his application dismissed. He referred to the cases of Eze vs. Okolonji (1997) 7 NWLR (Pt.513) 515 at 531; Okem Ent. (Nig.) Ltd. v. NDIC (2003) 5 NWLR (Pt.814) 492; N.A.A. vs. Enyi (2001) 15 NWLR (Pt.735) 173. Learned counsel stated that the court had over the years evolved guiding principles in considering applications for stay of proceeding. He relied on the cases of State vs. Ajayi (1996) 1 NWLR (Pt.423) 169 at 188 – 189 and Ajayi vs. State (1997) 5 NWLR (pt.505) 382 at 399 for those guiding principles.
He posited, on balance of convenience, that the court would be reluctant to grant an application for stay of proceedings if the grant would cause greater hardship than its refusal. He placed reliance on the cases of Kigo vs. Holman Brothers (1980) NSCC 204 at 209; Arojoye vs. UBA (1986) 2 NWLR (Pt.20) 101 at 112, Bamaiyi vs. State (2003) 17 NWLR (Pt.848) at 63. He reminded the court that the applicant was still standing trial for a crime he allegedly committed against the state by converting the property of Guaranty Trust Bank to his own use. He persisted that the complainant was statutorily conferred with a right to have its matter heard with dispatch, pursuant to section 19 of the Economic and Financial Crimes Commission Act, 2004, and a grant of the application would trample upon its right of having it determined within a reasonable time. He added that the complainant would become a victim of the effect of the avoidable delay that would be necessarily occasioned by the grant of the application. He noted that a grant of the application would inflict greater hardship than it would avoid. In support of the postulation, he cited the case of Okeke vs. FRN (2009) 9 NWLR (Pt.1145) 94 at 106 and insisted that it would not be in the interest of justice to grant the applications.
It was learned counsel’s contention that where an interlocutory appeal, like the applicant’s before the court, would not finally dispose of the case, stay of proceedings would not be granted by the court, but where the appeal, if successful, would put an end to the proceedings in the trial court, stay of proceedings would be granted. He referred to the cases of Bamaiyi vs. State (supra); Odogwu vs. Odogwu (1990 4 NWLR (pt.143) 22 and Arojoye vs. UBA (supra).
Learned counsel reproduced the provision of section 36(1) of the 1999 Constitution and posited that it made it mandatory for the court to grant an accused person fair hearing within a reasonable time. He maintained that the provision went beyond the accused person and it could not be waived. He referred to the case of. Ariori vs. Elemo (1983) 15 SCNLR on the duty of the state, through the judiciary, to do justice to itself and its citizenry. He took the stand that what the applicant was calling upon the court to do by his application amounted to antithesis, of the constitutional provision; adding that the court would not be seen, under any circumstances, to make an order which would run contrary to the constitutional provision.
He quoted the provision of section 19(2)(b) of the Act and repeated his submissions on inherent powers of a court under his preliminary point already outlined. He added that the provision of sections 19(2)(b) and 40 of the Act were in line with that of section 36 of the 1999 Constitution and the intention of the legislature was to remove impediments in the way of administration of justice. He urged the court to refuse the applicant’s prayers.
Learned counsel argued that the general practice was that unless an applicant established beyond doubt that an action ought not to go on, stay of proceedings should not be granted. He reasoned that the onus was on the party applying for a stay of proceedings to satisfy the court that in the special circumstances of his case, there existed some cogent or exceptional reasons upon which the court could exercise its discretion to grant a stay of proceedings. He maintained that no special circumstance had been shown by the applicant to make the grant of a stay of proceedings desirable. He urged court to so hold. Based on the above arguments, learned counsel prayed the court to dismiss the application.
RESOLUTION OF THE ARGUMENTS.
In settling this application, I will first, as a matter of law and necessity, handle the respondent’s terminal preliminary point of objection launched against the competence of the application. To this end, I will kick off with the applicant’s stout objection to the competence of the respondent’s preliminary point of objection against the legality of the application.
The hub of the applicant’s protestation against the preliminary point of objection is that it is premature and ought to be raised during the hearing of his substantive appeal. It will be recalled that the meat of the respondent’s preliminary point of objection is that the application is incompetent having regard to the provision of section 40 of the Act which forbids a court from entertaining this genre of applications. The respondent’s preliminary point of objection evinces, in my view, a jurisdictional issue. It quarrels with the legitimacy or validity of the application vis-a-vis the sacrosanct prescription of section 40 of the Act. By law, since the respondent’s preliminary point of objection fits, squarely, into the domain of the almighty jurisdiction of court, the law grants the respondent the licence to raise it at any stage of the proceedings and before any court of law, see Amoshima vs. State (2011) 14 NWLR (Pt.1268) 530; Agbiti vs. Nigerian Navy (2011) 4 NWLR (Pt.1236)?; Olowu v. Nigerian Navy (2011) 18 NWLR (Pt.1279) 659; FRN v. Ifegwu (2003) 15 NWLR (Pt.842) 1143.
It flows, therefore, that the respondent has not, in the least, insulted or ran foul of the law by raising the preliminary point of objection at this stage of the hearing and determination of the applicant’s application. Put the other way round, the preliminary point of objection, a quintessence of jurisdictional question, is far from being premature for consideration at the threshold of the applicant’s application. In sum, the applicant’s terse and stingy protestation against the respondent’s preliminary point of objection is not founded in law, in the result, I will not hesitate to discountenance it and same is overruled for want of legality.
That affords me the opportunity to get down to the nitty-gritty of the respondent’s preliminary point of objection against the application. As already noted, the thrust of respondent’s onslaught against the application is that it is incompetent in view of the provision of section 40 of the Act. In this wise, the provision of section 40 of the Act comes in handy and it states:
“40. Appeals against interlocutory ruling, etc.
Subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings in respect of any criminal matter brought by the Commission before the High Court shall not be entertained until judgment is delivered by the High Court.”
To begin with, the above provision is clear, precise and unambiguous. It is not susceptible or prone to equivocal meanings. It is trite law that where the words or provisions of a statute are clear and unambiguous, the court have the mandate of the law to employ the agelong literal rule of interpretation of enactments in construing them. The purport of the literal rule of interpretation is that clear provisions of legislations should be given their plain and ordinary grammatical meanings without interpolation, except it would lead to absurdity or conflict with other provisions of the law, see Amoshima vs. State (supra); Tanko vs. State (2009) 4 NWLR (Pt.1131) 430.There is no impregnable evidence, furnished by the parties before this court, showing that deploying the literal canon of construction of statutes on the provision will occasion absurdity or inconsistency with other provisions of the law. In the glaring absence of that concrete evidence, a desideratum on this point, I will invoke the literal rule in interpreting the provision as it is in tune with the law.
It is beyond dispute that the proceeding for which the applicant is standing trial in the lower court is a criminal matter. It is on charge No. KWS/56C/2011, a four-count information. The application is an offshoot of that charge. In the four-count information, the applicant is accused of the four offences of theft and criminal breach of trust, both in double counts, contrary to sections 289 and 314 of the Penal Code respectively. The Economic and Financial Crimes Commission, an anti-corruption institution, brought the charge against the applicant and arraigned him before the lower court therewith. The charge and proof of evidence were signed by one A. M. Yusuf for the chairman of the Commission. These facts are shown from pages 1 – 10 of the record of appeal. A conglomeration of these verifiable facts, amply, demonstrates that it is the Commission that is prosecuting the applicant for a criminal matter in the lower court in keeping with and satisfaction of the provision of section 40 of the Act.
The provision, section 40 of the Act, exhibits all the elements/incidents of ouster clause. It has clearly made this specie of application for a stay of proceedings with regard to criminal matter initiated by the commission non-justiciable. In clear terms, the provision has divested the court of the requisite jurisdiction to adjudicate over any applications for stay of proceeding germinating from a criminal trial being prosecuted by the Commission. The law mandates the courts, in deserving circumstances, to uphold ouster provision, see Misc Offences Tribunal vs. Okoroaafor (2001) 18 NWLR (Pt.745) 295. The provision has used the word shall which imports mandatory obligation on the court to observe the provision to the letter, see Agbiti vs. Nigerian Navy (supra) Amoshima vs. State (supra). The provision is made more compulsive by the usage of the negative phrase “shall not be entertained until judgment is delivered by the High Court” vis-a-vis an application for a stay of proceedings of a criminal matter.
At this juncture, it is germane to observe that a court of law is competent to entertain a matter when: (1) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another. (2) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction. (3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. These ingredients of jurisdiction had been sanctified by the Supreme Court in loads of judicial authorities, see Madukolu vs. Nkemdilim (1961) NSCC (vol.2) 374 at 379; Misc Offences Tribunal vs. Okoroafor (supra); Olowu vs. Nigerian Navy (supra); Agbiti vs. Nigerian Navy (supra).
I have situated these outlined elements of jurisdiction with the applicant’s application with a view to ascertaining its competence. I am clear in my mind that the application is trapped in the intractable web of the second limb of the second ingredient and the first arm of the third ingredient of jurisdiction. The reasons for this view point are obvious. There is a feature in the application, which prevents this court from exercising its jurisdiction over it, that is, the prohibitive statutory provision of section 40 of the Act which has, wholly, disrobed this court of jurisdiction with respect to application for stay of proceedings of pending criminal matter instituted by the Commission. Again, and this reason stems from the first, the application, having been forbidden by the prescription of section 40 of the Act, does not come before the court initiated by due process of law in consonance with the first leg of the third ingredient of jurisdiction. The net inimical effect of the foregoing is that the provision has, totally, drained the court of its required jurisdiction to hear any application for stay of proceedings of pending criminal matters initiated by the commission under the Act.
For a good measure, the applicant, in his infinite wisdom, did not react to the respondent’s preliminary point of objection. Perhaps, that was a sheer inadvertence or it was done on purpose. Whichever reason, the oversight or omission is a costly failure. The reason is not far-fetched. The law is settled that where an opponent, the applicant herein, neglects to counter or douse any argument or issue validly raised by his adversary in a brief, written address here, the defaulting opponent will be deemed to have conceded the non-contested issue or point, see Okongwu vs. NNPC (1989) 4 NWLR (Pt.115) 296; Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt.1209) 518. In due obeisance to this hallowed principle of law, I take it, having been given the nod or liberty to so do by the law, that the applicant’s non-response to the elegant arguments of the respondent on this vitriolic point is an undiluted admission of those arguments against the application. This is one of the instances, in law, when being silent is not golden. I hold that the applicant, by his mute attitude, acquiesced in the correctness/rightness of the respondent’s preliminary point of objection.
Furthermore, the provision of section 40 of the Act, upon which the preliminary point is grounded on, qualifies as a mandatory statutory provision, particularly for the use of the word ‘shall’ which commands compulsion, see Agbiti vs. Nigerian Navy (supra). Being a mandatory statutory prescription, it is incumbent on this court to abide by and comply strictly, with the entire tenets and letters of the provision. A court of law is duty bound to enforce mandatory provisions of a substantive law such as the one in hand here. It is a matter of law and not discretionary. see Tanko vs. State (supra); Edibo v. State (2007) 13 NWLR (Pt.1051) 306; Yusuf v. State (2011) 18 NWLR (Pt.1279) 853.Given these, this court will be doing violence to the law to hear the application when its jurisdiction has been expressly denuded by the provision. In essence, I will give due effect to the provision of section 40 of the Act, a mandatory provision of anti-graft legislation, by declining the applicant’s inviting invitation to insult the law by entertaining his application.
Having reached the finding, after consulting the law, that the provision of section 40 of the Act has stripped the court of jurisdiction over applications for stay of proceedings in respect of matter brought by the Commission, this court is hamstrung in relation to the applicant’s application. Jurisdiction, the power or authority of courts of law to entertain matters brought before them, is the linchpin and heart of all adjudications. Jurisdiction oxygenates all proceedings in court. Any determination by a court that is not equipped/clothed with jurisdiction over a matter, no matter the quantum of dexterity and industry invested in it, is caught in the miasma of nullity, see Agbiti vs. Nigeria Navy (supra). This court, being very abreast of this immutable position of the law, will not indulge in entertaining the application in that the provision has explicit undermined its jurisdiction. That will amount to stupendous waste of scarce judicial time that will end in futility and constitute an affront to the law.
Overall, going by the reasons, advanced above, I share the respondent’s stance that the applicant’s application is incompetent in the face of the sacrosanct prescription of section 40 of the Act which clearly ousted the jurisdiction of the court over it. Having been rendered incompetent by that provision, the order to make is not a moot question. The law commands this court to strike it out. I uphold the respondent’s preliminary point of objection. Consequently and in consonance with the law, the applicant’s application be and is hereby struck out for want of jurisdiction. The parties shall bear their respective costs of prosecuting and defending the ill-fated application.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the ruing just delivered by my learned brother, Ogbuinya, JCA and I entirely agree with the conclusion reached therein that the application for stay of proceedings dated and filed on the 2nd May, 2012 is incompetent and liable to be struck out.
From the fact available to me as disclosed in the lead judgment of my learned brother, there is an appeal against a ruling in a similar application for stay of proceedings which was delivered on the 17/4/2012 by the lower court. This appeal is pending before this court. A determination of this application will definitely have the effect of determining that appeal at an interlocutory stage. This is not permissible.
In the case of the Miscellaneous Offences Tribunal & Anor vs. Nwammiri Akpe Ohoroafor & Anor (2001) 8 NSCQLR 138 @ 170 Ejiwunmi JSC said:-
“There is no doubt the principle that in the hearing and determination of an interlocutory matter, the court ought to refrain from making pronouncement touching upon the main issue that would have to be decided between the parties.
See also Odutola Holdings Ltd v. Ladejobi (2006) 26 NSCQLR 1026.
Even on this reason alone I would have struck out the application. However my learned brother has articulated extensively the reason why this application is incompetent. I have no reason to disagree. Accordingly I join him in striking out this application for being incompetent and endorse the order as to cost.
ITA G. MBABA, J.C.A.: I had the advantage of reading the draft of the lead ruling just delivered by my learned brother Obande F. Ogbuinya JCA and I agree with his reasoning and conclusions.
My Lord has been quite detailed and exhaustive on the points/issues relating to the jurisdictional bar raised by the Respondent, as per Section 40 of the EFCC Act, which made this application completely unnecessary.
It is rather strange that the Applicant, who is: expected to take the benefit of Section 40 of the EFCC Act, meant to ensure speedy trial/disposal of his case, in keeping with Section 36(4) of the 1999 Constitution, is the one trying to clog the wheel of speedy trial, by applying to stay the hearing of his trial, because he appealed against interlocutory decisions of the trial court.
I think Counsel who are advising litigants aggrieved by interlocutory decisions of Court, should, themselves, be advised against subjecting their clients to avoidable hazards, suffering and spending, which premature appeals entail. Sometimes, a little patience and tact, on the part of Counsel, would suggest lying low and marking down what could have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the final verdict becomes unfavourable, that is where the issue for interlocutory appeal would not cease to be live issue in the final judgment of the trial Court.
Thus, where a party has cause to disagree with an interlocutory ruling of the trial Court over an issue which the party will not be foreclosed to raise at the final judgment of the substantive matter, I think the party (or his Counsel) should not rush to the Appeal Court on the issue and stall the trial of the case at the lower Court, since he will still be heard by the trial Court, whether or not the interlocutory appeal succeeds, and his right of appeal will not be extinguished at the final judgment.
This application was therefore completely uncalled for. With this and other more elaborate reasons in the lead Ruling I, too, strike out the application for incompetence. I abide by the consequential orders in the lead Ruling.
Appearances
Toyin Oladipo, Esq.For Appellant
AND
Rotimi Oyedepo, Esq.For Respondent
