ECONOMIC AND FINANCIAL CRIMES COMMISSION v. DR. ERASTUS AKINGBOLA (2015)

ECONOMIC AND FINANCIAL CRIMES COMMISSION v. DR. ERASTUS AKINGBOLA

(2015)LCN/8058(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of February, 2015

CA/L/161/2013

RATIO

COURT: THE DUTY OF THE JUDGE NOT LOSE THEIR TEMPER; THE REASON WHY JUDGES ARE ENJOINED NOT TO LOSE THEIR TEMPER

PRACTICE AND PROCEDURE: CONTEMPT OF COURT; WHETHER IT IS CONTEMPT OF COURT TO CRITICISE THE CONDUCT OF A JUDGE OR THE CONDUCT OF A COURT

It is settled that it is not contempt of court to criticize the conduct of a Judge or the conduct of a court even if that criticism is strongly worded provided that the criticism is fair, temperate and made in good faith. per. AMINA ADAMU AUGIE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; WHAT THE RIGHT TO FAIR HEARING INCORPORATES

One point we must always bear in mind is that fair hearing incorporates a trial done in accordance with the rules of natural justice. And natural justice in the broad sense of justice done in the circumstances which are fair, just, equitable and impartial. This aspect of natural justice carries with it the implication that justice should not only be done but should manifestly and undoubtedly be seen to be done – – per. AMINA ADAMU AUGIE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; WHETHER FAIR HEARING MUST BE GIVING TO A PARTY OR LEGAL PRACTITIONER OF HIS CHOICE TO PRESENT HIS CASE

In my Judgment, fair hearing must include giving to a party or a legal practitioner of his choice the opportunity to present his case before an impartial court or other tribunal in an atmosphere free from fear and intimidation. per. AMINA ADAMU AUGIE, J.C.A.

COURT: ATTRIBUTES OF A JUDGE
Socrates, the ancient Greek Philosopher said, “four things belong to a Judge; to hear courteously, to answer wisely, to consider soberly, and to decide impartially”. There has to be some basis for his decision before we can question whether a Judge complied with these attributes. per. AMINA ADAMU AUGIE, J.C.A.

COURT: THE DUTY OF A COURT: THE DUTY OF A COURT TO ENTERTAIN AND DECIDE ON THE MERIT ANY APPLICATION BROUGHT BEFORE IT

Besides, it is settled that it is the duty of a Court to entertain and decide on the merit of any application brought before it by any party see Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 642, where it was held – “A Court of law has a legal duty in our adjectival law to hear any Court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The Court must hear the party or parties and rule one way or the other. A Judge, whether of a Court of law or Tribunal, has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1/5/1999 is against the provisions of S. 33(1) of the 1979 Constitution on fair hearing and particularly the natural justice rule of audi alteram partem”.
See also Mobil Producing (Nig.) Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 346, where the Supreme Court per Uwaifo, JSC, clearly stated-
“It is not only essential but mandatory for a Court before which a motion (or application) has been brought to hear and determine it at the appropriate time. It has no right to refuse to hear it unless possibly in a proper circumstance in the exercise of its punitive jurisdiction against a contemnor of a Court order who is expected to purge himself of the contempt before he could be heard. Otherwise the Court must set the motion down and hear and determine it one way or another even if it might be of the opinion that the motion was brought late and that what it seeks is downright irregular and frivolous. It has to give the Applicant a hearing. It is a basic right. If for any reason the motion was not expeditiously drawn to the attention of the Court by the officials who ought to do so, that could be no excuse for simply discountenancing it when later the Court came to learn of its existence and instead proceeding to give Judgment or make some order more particularly when a decision on the motion was likely to have had a bearing on the Judgment or order. The adversarial system of our justice administration demands no less. A refusal of a Court to hear a motion is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the audi alteram partem rule of natural justice. It is perhaps important to add that if a Judge or Court were at liberty to decide to ignore any motion filed in Court it would raise a fundamental issue. There will be a danger that instead of allowing the administration of justice to be done upon a compulsory even keel, it may be left to the tyranny of the arbitrary or selective decision of a particular Judge or Court as to if and when any motion will be considered at all. The consequences of this to the normal run of court proceedings are disturbing to contemplate”. per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

ECONOMIC AND FINANCIAL CRIMES COMMISSION Appellant(s)

AND

DR. ERASTUS AKINGBOLA Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This is yet another Appeal filed by the Appellant against a decision of Archibong J., in respect of criminal charges against the Respondent after he was removed as Managing Director of Intercontinental Bank Plc.

He was arraigned before the Federal High Court on Charges of creating a false or misleading appearance of active trading in the shares of Intercontinental Bank Plc. on the Nigerian Stock Exchange contrary to the Investment and Securities Act; Money Laundering contrary to the Money Laundering Act (Prohibition) Act, and other banking offences contrary to the Banks and Other Financial Institutions Act [BOFIA].

On 29/11/2010, and before an Amended Charge dated 26/1/2010 could be read out to the Respondent, Chief F. O. Fagbohungbe, SAN informed the court that the Respondent was challenging the charge, and had filed a Preliminary objection dated 26/11/2010 to that effect. Learned senior counsel for the Appellant, E. C. Ukele, SAN complained of being taken by surprise and the matter was adjourned to 14/12/2010 “for arguments on objections and variation of bail”. Before the said date, the Appellant filed yet another Amended Charge dated 13/12/2010.

On 14/12/2010, it was learned senior counsel for the Respondent that complained and asked for an adjournment to file an objection to the Application to amend the said Charge, which was granted, and he filed another Notice of Preliminary Objection dated 17/2/2011 praying for –

“An Order refusing the amendment and/or dismissing the Proposed Amended 26 Count dated and filed on 13/12/2010 by the Complainant”.
The Grounds for the Objection are as follows –
(i) A 22 Count Charge dated 26/1/2010 was earlier filed by the Complainant herein on 29/1/2010 after the initial 28 Count Charge dated 21/12/2009 filed by the Complainant on the same date.
(ii) Before the plea of the Accused/Applicant was taken in respect of the said Amended Charge, a Notice of Preliminary Objection dated 26/11/2010 was filed by the Accused/Applicant urging this Honourable Court to quash and/or strike out the Amended Charge.
(iii) Upon the service of the Accused/Applicant’s Notice of Preliminary Objection on the Complainant, yet another Proposed Amended Charge dated 13/12/2010 was filed by the Complainant.
(iv) The Notice of Preliminary Objection dated 26/11/2010 is challenging the jurisdiction of this Honourable Court.
(v) The Proposed Amended Charge dated 13/12/2010 is meant to overreach the Objection of the Accused referred to in 4(iv) above and prejudice him.
(vi) The Proposed Amended Charge dated 13/12/2010 is an abuse of the processes of this Honourable Court.
(vii) It is unjust and inequitable to allow the Complainant prosecute the Accused on the Proposed Amended Charge dated 13/12/2010 after the Notice of Preliminary Objection dated 26/12/2010 was filed.
(viii) The Proposed Amended Charge is vexatious, oppressive and overreaching.
(ix) The proposed amendment will prejudice the right of the Accused to fair hearing.
(x) The proposed amendment being yet another attempt to amend the Charge, the Complainant is pursuing piecemeal prosecution to the detriment of the Accused/Applicant.
(xi) The conduct of the Complainant in prosecuting this case in bits and pieces is improper and directed towards the manipulation of criminal processes as to take unfair advantage of the Accused/Applicant.

The Appellant filed a Counter-Affidavit wherein it averred inter alia that it is the Respondent that refused to plead to the Amended charge rather it preferred to object to same; that he has not taken any plea in respect of the Charge(s) before the learned trial Judge – Archibong, J.; and that it is entitled as of right to amend criminal charges presented for prosecution.

Meanwhile, the Executive Chairman of EFCC, wrote a Petition to the Chief Judge of the Federal High Court dated 18/5/2011, which reads-
“F.R.N. v. DR ERASTUS AKINGBOLA CHARGE NO: FHC/L/443C/2010 AND OTHER EFCC MATTERS: PETITION AGAINST C. ARCHIBONG J.

It is with the greatest reluctance but with a high sense of responsibility to the institution for the administration of justice as represented by the judiciary that I write this Petition as a strong objection to the serial conducts of Archibong J., as it relates to matters being prosecuted by our Commission in connection with erstwhile bank chiefs. The anti climax of his undue interests and manifest bias in favour of the bank chiefs in proceedings before the Court was graphically demonstrated on 18/5/2011 in one of the related matters where our lead Counsel J. B. Dauda, SAN led. The facts are already before you vide a Petition and we will not bore you by repeating them. For the records however we attach a copy for ease of reference. The above mentioned matter is still before Archibong J. and will be coming up on 20/5/2011. In view of his manifest and unconcealed interests in Dr. Akingbola and obviously other EFCC matters, we regret to say that his compromised stance cannot ensure justice in these matters. On the contrary, his continued participation in these matters will bring the administration of justice to doubt. The Commission humbly and respectfully kindly request that Archibong J. having in the passing held the EFCC in contempt excuse himself from all EFCC matters or be excused. We thank you for your kind understanding in this matter and look forward to a relationship that will ensure the good administration of justice without blemish or rancor. As always please accept the assurance of my regards and high esteem. Yours sincerely, Chief Dr. (Mrs.) Farida Waziri AIG (Rtd.), FWC OFR, Executive Chairman”.

The Appellant followed the Petition with an Application dated 27/9/2011, wherein it prayed for the following Orders directed against Archibong, J. –

1. AN ORDER that His Lordship, Honourable Justice Charles Efanga Archibong disqualifies or excuses himself from further sitting to adjudicate on this matter, that is charge No. FHC/L/CS/443C/2009 pending before this Honourable Court.

2. AN ORDER directing that this matter be referred to the Chief Judge of the Federal High Court for the same to be transferred to any other Judge of the Federal High Court for hearing and determination.

3. AND FOR SUCH FURTHER order or other orders as this Honourable Court may deem fit to make in the circumstance of this case.

AND FURTHER TAKE NOTICE that the grounds for this Application in addition to those contained in the accompanying Affidavit are as follows ”

(1) The Prosecution/Applicant is a complainant against His Lordship Hon. Justice Charles Eganga Archibong with regard to his Lordship’s handling of a related case including the Complainant and the Accused person herein.

(2) That complaints of the Prosecution/Applicant are yet to be determined and are still pending.

(3) That there is a real likelihood of bias against the Prosecution/Applicant in the circumstances of this case.

When the Objection came up for hearing on 28/9/2011, learned counsel for the Appellant sought to move the Application dated 27/9/2011, and learned senior counsel for the Respondent complained that he was just served and there are a lot of averments in it that are untrue and false. Archibong, J., then stated as follows (see page 209/210 of the Record) –

“I will not disqualify himself (sic) at the instance of the mere mention of a motion the details which I am not raised particularly. Today was for the Accused/Applicant preliminary objection parties should adopt their briefs”

After some arguments over which Charge was the substituting Charge, the matter was adjourned without hearing the Objection. On 31/1/2012, the Application for disqualification was argued, and Archibong, J. held –

“The Application has no merit whatsoever. It is refused and hereby dismissed 9th February, 2012 for the arguments an ordered charges (sic)”.

On 9/2/2012, the Appellant filed an Application praying for an Order –
“Staying further proceedings in this Charge No: FHC/L/CS/443C/2009 pending the determination of the Appeal filed in this case against the Ruling of this Honounrable Court delivered on 31/1/2012″.
The Grounds for the Application are as follows”
i) That the Appellant/Applicant has lodged an appeal against the Ruling of this Honourable Court delivered on 31/1/2012 and the Notice of Appeal contains substantial Grounds of Appeal involving serious issues of law.
ii) That the issues arising for determination in the Appeal at the Court of Appeal are recondite and hard issues of law bordering on real likelihood of bias and breach of the right of fair hearing as guaranteed by Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended).
iii) That the continuation of the trial in this Charge No: FHC/L/CS/443C/2009 will certainly work hardship against the Appellant/Applicant who has timely objected to the trial by His Lordship, Hon. Justice Charles Efanga Archibong on ground of real likelihood of bias.
iv) That a determination of the Appeal one way or the other will have profound effect on the proceedings and Judgment of this Honourable Court, particularly where the Appeal succeeds, the effect will simply render all before this Honourable Court a nullity.
v) That it is necessary for the Appeal to be determined one way or the other before the continuation of the proceeding in the charge to avoid wasting the time of the court and resources of the litigant and also to prevent foisting on the Appellate Court a situation of complete helplessness.

On that same day – 9/2/2012, the Respondent’s Preliminary Objection was finally argued, and the matter was adjourned to 2/4/2012 for Ruling.

In his Ruling of 2/4/2012, Archibong, J. allowed the amendment of the said Charge dated 13/12/2012, and then concluded as follows –

“I will permit no further amendment of charges – – until trial has commenced and progressed sufficiently for and there to be need to adjust/amend the charges in line with evidence led. This is of course a direction or stricture without prejudice to any position the Defence may take in relation to the competence or otherwise of the Amended Charge of 13/12/2010. Arguments on that will await the Prosecution’s Motion for stay of Proceedings. We shall take that now”.

The proceedings of that day -2/4/2012 is the centerpiece of this appeal –
“Court: RULING READ IN OPEN COURT.
Obla: Before we take the motion for stay of proceedings, we wish to have your Lordship’s indulgence to avail us the records of your Lordship to enable us to complete our compilation of record in respect of the appeal the Prosecution has filed on 7/2/2012 against the Ruling of your Lordship of 3/1/2012.
Court: So you insist on that appeal.
Obla: Yes, those are my instructions. I am No. 5 in the hierarchy.
Court: You will give me two minutes.
Court Rises: Judge goes into Chambers.
Court Returns: Judge re-enters Court.
Court: I direct the AGF to disband/sack/debrief the present Prosecution team of some five (5) SAN’s and their respective firms for being incompetent in their prosecution of the charges against this Accused before this Court I direct the AGF to disband/sack/debrief the present Prosecution team for serial abuse of process. They are a drain on the public purse, a fact the AGF should be mindful of now if he was not before. This prosecution team has chosen to persist in a campaign to scandalize the Court rather than mount a serious and professionally competent prosecution of the Accused. This Prosecution team or any part of it SHALL NOT be given further audience in this Court in relation to the Charges against this Accused either before this Presiding Judge or any other Judge of the Federal High Court, for the reason I have given in the foregoing. Further I take judicial notice of the fact that the Accused herein is presently facing charges before the Lagos State High Court, emanating from his tenure as Managing Director and Chief Executive of Intercontinental Bank Plc. The AGF may wish to regain control of this process; and his untrammeled right to prosecute the Accused on whatever charge he chooses before any appropriate Court as forum.

He can of course do so at any time of his choosing. Meanwhile, the Prosecution team presently employed, indulging their professional incompetence to the extreme have been unmindful of the Accused rights to have the case against him clearly stated. They have been dismissive of his right to a “speedy” trial; which in reality should be the orderly, progressive consideration and determination of all matters raised by the adversaries, within the law and within the Constitution, relating to charges against the Accused and the prosecution/defence of same. NOT to indulge in this extended campaign against the Presiding Judge. I therefore dismiss the charges amended or otherwise brought by this incompetent and abusive Prosecution team. I discharge the Accused accordingly; and leave the AGF to consider his options. An enrolled Order shall be served on the AGF. The Prosecution team may leave my Court. We shall be referring the conduct of the Learned SANs who led this Prosecution team to the Privileges Committee for further consideration and determination of the issues that such conduct has raised. And we shall forward to the Committee the record of these Proceedings. We shall further oblige the AGF with same. This Proceeding is at an end”.

Dissatisfied with the decision, the Appellant appealed to this court with a Notice of Appeal containing 4 Grounds of Appeal, and it distilled 2 Issues for determination in its Brief of Argument prepared by J. B. Daudu (SAN), Kola Awodein (SAN), Emmanuel Ukala (SAN), Prof. Koyinsola Ajayi (SAN), Chief Godwin O. Obla (SAN), and Edward C. Okpe, Esq., that is-

i. Whether the learned trial Judge was right to dismiss the amended charge against the Respondent filed by the Appellant and proceed to discharge the Respondent without according the Appellant the opportunity to be heard on the said issues raised suo motu by the lower Court.
ii. Whether the Learned trial Judge was right in the circumstances when he proceeded to dismiss the charge filed against the Respondent by the Appellant without affording the Appellant the opportunity to move its Motion for stay of proceedings or call witnesses to prove its case?

The Respondent submitted in his Brief of Argument prepared by Chief F. O. Fagbohungbe (SAN) that the Issues that call for determination are –

1. Whether the Appellant/Prosecutor was afforded the opportunity to argue its Motion for stay of proceedings which opportunity was wasted by the Prosecution counsel?
2. Whether in the circumstances of the case, the lower court was right to have dismissed the charge and discharged the Accused?

Apparently, the Issues they both formulated are, more or less, the same, albeit slanted towards their respective perspective. Take the first Issue – that of the Appellant implies that it was not given opportunity to be heard; while that of the Respondent suggests that the Appellant had opportunity to be heard but wasted it. In other words, the key Issue for Determination in this appeal boils down to whether in the circumstances of this case, the Appellant was actually denied its constitutional right to a fair hearing.

In arguing that the lower Court breached its right to a fair hearing, the Appellant submitted that the lower Court never determined or dealt with the application to be availed with the said record of proceedings; that the lower Court did not refuse the application nor the Motion for stay of proceedings, which was yet to be moved nor did he strike it out; that the issues relating to the competency of counsel to prosecute the matter, and whether or not the Respondent should be discharged were never raised by any counsel but were raised suo motu by the lower Court and ruled upon without allowing any of the counsel the opportunity to address it on them; that while it can raise the issues suo motu, it is circumscribed by the trite position of the law that it is bound to give the parties/counsel opportunity to be heard, citing Halico (Nig.) Ltd v. Equity Bank (Nig.) Ltd. (2013) 12 NWLR (Pt. 1367) 1; and that the lower Court ought to have followed guidelines laid down in Kraus Thompson Org. Ltd. v. University of Calabar (2004) 4 SCNJ 121, when the unfortunate temptation arose for the lower Court to raise the following issues suo motu-

(a) The competency of the Appellant’s Counsel;
(b) The need to direct the AGF to “disband/sack/debrief” the prosecution team.
(c) The need to declare the Prosecution Team as a drain on the public purse.
(d) The lower Court’s perceived “campaign” by the Prosecution Team to scandalize the Court”.
(e) The need to bar the Prosecution Team from being “given further audience” before the Federal High Court in relation to the charges against the Respondent
(f) Whether the amended charge should be terminated and the Respondent be discharged.

It cited the following authorities on the position of the law regarding the Court raising an issue suo motu vis-‘a -vis fair hearing – Uwazuronye v. Gov. Imo State (2013) 8 NWLR (Pt. 1355) 28 SC, J.S.C. Cross Rivers State v. Young (2013) 11 NWLR (Pt. 1364) 1 SC, Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299 SC, John Shoy Int’l Ltd. v. A.E.P.B. (2013) NWLR (Pt. 1357) 625, I.S.I.E.C. v. Ehirim (2013) 3 NWLR (Pt. 1340) 169 SC, and Halico (Nig.) Ltd v. Equity Bank (Nig.) Ltd. (supra), and its contention is best captured in its words at page 11 of its Brief –

“The issue before the lower court – – which culminated into the Ruling/decision of the lower Court was merely seeking His Lordships indulgence to intervene to ensure that the record of proceedings were made available for the compilation of the Record of Appeal. That in itself is an innocuous and legitimate request to a trial Judge especially where it has become obvious that the trial Judge’s intervention is necessary for the Registry to gain access to some parts of his record of proceedings. The lower court rather than deal specifically with the Appellant counsel’s application jettisoned the issue raised in the said application and refused to render any decision on the said application. The refusal of the lower court to render or deliver any decision on the Appellant’s application is a breach of the Appellant’s right to fair hearing, and this has occasioned a miscarriage of justice. This is so because the lower court is under a duty to consider the Appellant counsel’s application to it”.

It further submitted under its Issue 2 that is elementary law that a court cannot ignore any motion or interlocutory applications pending before it, citing General Electric Co. v. Akande (2012) 16 NWLR (Pt. 1327) 593, F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249) 219; and that –

“The Ruling, subject matter of the motion for stay, was a Ruling wherein the learned trial Judge refused an application to disqualify himself on the ground of a real likelihood of bias against the complainant- prudence would have dictated that the least [he] would have done – – is to hear the motion for stay -, determine whether in spite of the pending appeal challenging his competence to continue to exercise jurisdiction in a matter where he stood accused of a real likelihood of bias, he could continue with adjudication in the matter while the appeal challenging his competence was pending. Despite the pendency of this motion for stay of proceedings – – the lower court ignored the said motion and dismissed the said charge before the lower court. The Ruling – – which failed to rule one way or the other on the motion for stay – – is to say the least absurd. The decision – – to dismiss the amended charge without hearing from [its] counsel or even caring on the prosecution to open its case – – is equally preposterous and unconstitutional. This is so because on 2/4/2012 when the amended charge was dismissed by the lower court and the Respondent was discharged, the matter was not set down for hearing of the Charge”.

On his part, the Respondent conceded that the Court must hear all the interlocutory applications pending before it, citing General Electric Co. v. Akande (supra), but argued that where a party is called upon to argue his application and such opportunity is squandered by him not moving same, the Court is entitled to strike it out; that parties must be given rights to fair hearing in respect of pending applications, citing SCEN v. Nwosu (2008) All FWLR (Pt. 413) 1399, INEC v. Musa (2003) 3 NWLR (Pt. 806) 72; and that the issue is whether the Appellant was afforded the opportunity to argue its motion for stay of proceedings before the lower Court?

He submitted that the business of the said day was the hearing of the Appellant’s motion for stay but instead of arguing same, its counsel made another application that had no bearing on the business of the day; that he was either not prepared to argue it or attempted to further delay the trial, as had been their antecedent in the matter; that it was afforded a right to fair hearing but it decided not to use it, and cannot be allowed to complain, citing INEC v. Musa (supra); and that the lower Court is, therefore, entitled to dismiss the criminal charge as it had done.

He submitted under Issue 2 that in a criminal trial or proceedings, the courts are guided by public policy and the need for speedy trial and fair hearing within a reasonable time as enjoined by Section 36 (4) of the 1999 Constitution, citing Odo v. C.O.P. (2004) 8 NWLR (Pt. 874) 46, Solomon Agbo & Anor v. F.R.N. (2002) 10 NWLR (Pt. 774) 21, Sokoto State Govt. v. Kamdax (Nig.) Ltd. (2004) 9 NWLR (Pt. 878) 345, and Okeke v. State (2003) 15 NWLR (Pt. 842) 25, and that the intention of the 1999 Constitution to ensure a speedy trial of an accused is further entrenched in Section 40 of the EFCC Act 2004, which stipulates that –

“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”.

He submitted that the inevitable question that is crucial in determining this issue is whether the Prosecution complied with these provisions in ensuring that his trial was fair and concluded within a reasonable time?
Referring to the record of proceedings, he answered the question thus –

“The criminal trial commenced on 13/8/2010 – – and the prosecution team in breach of their duty under Section 36(4) of the Constitution and Section 40 of the EFCC Act 2004, continued to delay [his] trial for unjustified reasons. The Appellant, who amended their charges on three different occasions, refused to go on with the trial – – and eventually filed their Motion for stay dated 9/2/2012, in spite of the clear provision of Section 40 of the EFCC Act, 2004. As a matter of fact – – the lower Court in noting the right of the Accused to speedy trial delivered a Ruling on 2/4/12 wherein it dismissed [his] objection for further amendment of the charge before the Court by granting the Appellant’s application for amendment of its charge dated 31/12/10, and stated that it would not permit (any) further delays of its proceedings in the matter”.

He set out the response of the Appellant’s counsel and further argued –

“The Appellant’s counsel expressly stated that he had no instructions to argue the application for stay. Hence, the prosecuting counsel in court was not ready to go on with the proceeding of the day for no justifiable reason. It is not in dispute that the prosecution had notice of the date and of the business of the court – – All the above stated conduct of the prosecution, to say the least, amounts to frivolous delay in breach of [his] right to fair hearing within a reasonable time, as entrenched in S. 36(4) of the Constitution and in breach of S. 40 of the EFCC Act, 2004 and S. 37(4) of the Legal Practitioners Act, 2007. – – The Ruling delivered by the lower court on 2/4/12, dismissing the charge and discharging [him] was in reaction to the unwillingness of the Prosecution to move their motion for stay and continue with the proceedings of the day. The effect of the Prosecution’s tardiness and attempts at frustrating the Court’s proceeding is reflected in the intensity of the Court’s remark in the failure of the five SAN’s engaged to competently prosecute the case a year after the arraignment of the Accused and its directive for their disengagement by the Attorney-General of the Federation on account of their incompetence, unnecessary delay of proceedings and consequent wastage of public funds. – – – The reaction of the lower court to the prosecution attempt to frustrate the criminal trial – – can also be justified on the ground that the unwillingness of the Prosecution to go on with the business of the day was an affront targeted at the court considering the prosecution’s antecedent of walking out on the court and in total disregard of the court’s declaration in its said-Ruling – – that it would not permit further delay of its proceedings. – – – The antecedents of the Prosecution team – – clearly establish that they were not ready nor were they willing to prosecute the charge but were only in court to delay and frustrate the Court’s proceedings at the expense of [his] right to timely and fair hearing. We – – urge your lordships to so hold that the Prosecution’s attitude – – both in filing the motion for stay in contravention of Section 40 of the EFCC Act 2004 and in refusing to move same when directed to do so, is reprehensible and contravenes S. 32 (3)(k) of the Legal Practitioners Act, 2007 – -“.

He also argued that an accused is presumed innocent until proven guilty, citing Omoregie v. State (1988) 12 SC (Pt. 11) 88; that the Prosecution must not unnecessarily delay the trial to the detriment of the accused’s rights as guaranteed by the Constitution, and where it attempts to do so, the Court is entitled to protect the right of the Accused to speedy trial; that the practice of engaging in delay tactics is prejudicial to the Accused and an infraction of his human rights, and the Court as an umpire has a duty to protect the interest of both parties and exercise its constitutionally entrenched powers by making necessary orders in the circumstances; that the lower Court was right to have dismissed the criminal charge and to also discharge him as a result of the inability of the prosecuting team to prosecute the case within a reasonable time; that its decision should be commended considering its unjustified refusal and failure to ensure a timely prosecution of his case; that contrary to the Appellant’s argument, the said Issues (reproduced earlier) are the court’s directives as a result of the attitude of the prosecution team in engaging in delay tactics; that the remarks regarding its conduct of the case are not issues emanating from the processes filed or the argument canvassed before the court to warrant the addresses of counsel; that they are mere opinions of the Judge on the time wasting disposition of the prosecution and, at best, are remarks or directive to the AGF, and are, therefore, not issues raised suo motu by the learned trial Judge; that where a prosecuting counsel delays a criminal trial or is unable to prosecute a criminal trial as was done severally in this matter, the court has the inherent power to dismiss the proceedings and discharge the accused, citing Echaka Cattle Ranch Ltd. v. N.A.C.B. Ltd. (1998) 4 NWLR (Pt. 547) 526, Alayi v. Omorogbe (1993) 6 NWLR 512; that the lower court did not require any addresses on such issues; and that the Prosecution’s indolence is the very act upon which it based its reason to dismiss the said charge and discharge him.

But the Appellant countered in its Reply Brief that the Respondent focused wrongly on its Motion for stay rather than the pith of this appeal, which is the lower Court’s pre-emptory dismissal of the amended Charge without prompting from the Respondent or invitation to them to address it on the propriety of dismissing the said Charge; that assuming arguendo that its counsel was not ready as alleged, the lower Court was wrong to have dismissed the Amended Charge, which it accepted on the same day that it dismissed the Amended Charge; that the authorities he cited are misplaced because the facts and circumstances of those cases are distinguishable from the facts and circumstances of the instant case; and that the peculiarities of the case that culminated in this appeal are –

(a) The filing of the Amended Charge, which was allowed by the lower Court;
(b) The filing of a meritless preliminary objection to the Amended Charge by the Respondent, who is invoking S. 36(4) of the CFRN;
(c) The learned trial Judge’s refusal of [its] Application to the learned trial judge to disqualify himself from further adjudicating the matter on the ground of likelihood of bias; and
(d) It’s filing of (i) An appeal against the said decision before this court, and (ii) – An application before the lower court for stay of proceedings pending the determination of the said appeal.

Furthermore, that the four factors guiding the application of Section 36(4) of the 1999 Constitution as laid down in Okeke v. State (supra), were not raised in the Respondent’s brief, let alone satisfied by the Respondent; that his reliance on Section 40 of the EFCC Act on stay of proceedings, should be rejected because the lower court did not pronounce on the merits of its Application for stay of proceedings, and the said Section 40 does not provide any answer to its complaint that the Amended Charge was dismissed suo motu by the lower court; and that beyond the bland reliance on Section 37(a) of the LPA, he failed to buttress its alleged determination to convict him rather than seeing that justice was done, and the said Section has no bearing on the propriety or otherwise of the dismissal of the charge without giving it the opportunity to prove its case.

To find our bearings in this appeal, we need to look or should I say, dissect what transpired at the lower Court on that fateful day of 2/4/2012.

To start with, as at that day, there were two Applications before it – the Respondent’s Objection to the Appellant’s Application to amend the Charge, and the Appellant’s Application for Stay of Proceedings pending the determination of an appeal against the refusal of the learned trial Judge to disqualify himself from further sitting to adjudicate in the matter. The lower Court delivered its Ruling on that day, wherein it overruled the Respondent’s Objection and allowed the amendment of the said Charge. It concluded therein that any arguments that the defence may proffer in relation to the competence or otherwise of the said Amended Charge “will await the Prosecution’s Motion for Stay of Proceedings” and added – “we shall take now”. Thus, it called on learned counsel for the Appellant, Godwin Obla, Esq., to move the said Application for stay of proceedings.

The Record shows that “Obla” said – “before we take the Motion for stay of Proceedings, we wish to have your Lordship’s indulgence to avail us the records of your Lordship to enable us complete our compilation of record in respect of the appeal the Prosecution has filed on 7/2/20/2 against the Ruling of your Lordship of 31/1/2012”. This is the request that triggered the fireworks at the lower Court, and led to this appeal.

The Appellant equated the request to an application like any other application before a Court of law, and argued that the issue before the lower Court that day, which culminated in the Ruling appealed against, was a mere seeking of the learned trial Judge’s indulgence to intervene to ensure that the record of proceedings were made available, and that the refusal of the lower court to render any decision on the “Application” is a breach of its right to fair hearing. It also contends that it breached its right to fair hearing when it raised “issues suo motu” in its Ruling without affording the parties an opportunity to be heard on the said “issues”.

The Respondent, however, argued that the lower Court’s “remarks” in its Ruling are not issues that emanated from processes filed before it to warrant the addresses of counsel in the matter; that they were mere opinions of the learned trial Judge and remarks or directive to the AGF; and they are, therefore, not issues raised suo motu by the lower Court.

No doubt, the Respondent’s argument carries the day. He is right; the lower Court has no business whatsoever with the compilation of and transmission of the record of appeal from the lower Court to this Court; that is the job of its Registrar. Order 8 rule 1 of the Rules of this Court specifically says that the Registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the record of appeal to this Court. To this end, Order 8 rule 2 provides that the Registrar shall within a reasonable time summon parties before him to –
(a) Settle the documents to be included in the record of appeal and
(b) Fix the amount to be deposited by the Appellant to cover the estimated cost of making up and forwarding the Record of Appeal.
By Order 8 rule 4 of the Rules, where at the expiration of 60 days after the filing of the notice of appeal, the Registrar has failed to compile and transmit the records of appeal, it becomes mandatory for the Appellant to compile the records of all documents and exhibits and transmit same to the court within 30 days after the Registrar’s failure or neglect to do so.
There it is in black and white; it is the responsibility of the Registrar to compile and transmit the Record of Appeal to this court within 60 days after filing of the Notice of Appeal, and when he fails to so do, it becomes mandatory for the Appellant to compile and transmit same within 30 days after his failure or neglect to do so. In other words, the request made by the Appellant in open court is incongruous and in my view, disrespectful. The court has its duty to perform and the Registrar has his own function, and to ask the lower court, while performing its own duty in open court, for its assistance in helping the Registrar to do his, is highly demeaning.
Be that as it may, the issue is whether the request qualifies as an application or not and it goes without saying that the answer is a big NO. The said request for the lower Court’s records is an administrative issue that required the attention of the Registrar or of the Judge in Chambers. It is not, and cannot be equated with a Court process or an application that required addresses from counsel or any Ruling from the lower Court. Thus, the Appellant’s argument to the contrary, is totally misconceived.

The Respondent has argued that the Ruling delivered on 2/4/2012 was in reaction to the Prosecution’s unwillingness to move their Motion for stay and continue with the proceedings, and that the effect thereof is reflected in the intensity of the lower Court’s remarks in the said Ruling.

The Appellant argued without conceding that even if its counsel was not ready to move the Motion for stay as the Respondent alleged, the lower Court was wrong to dismiss the Amended Charge, which it had accepted on that day- 2/4/2012 that it dismissed the Amended Charge.
Furthermore, that his contention that its counsel provoked the impatience of the Court and his submission on the “intensity of the Court’s remark” abysmally ignore the instructive principle laid down in Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401, concerning the temperament of a Judge – “a Judge must avoid losing his temper while he remains as cool as cucumber”; and the learned trial Judge allowed his emotion to engulf him in utter disregard of a court’s sacred duty to uphold the laws of our land.

The first question that jumps out is – did the Appellant’s counsel refuse to move the Application for stay, as alleged by the Respondent?
The word “before” means “in advance of” etc. – see Webster’s Dictionary. “Obla” clearly said “before we take the Motion for stay of proceedings”, and then made the request for the record. He never said or indicated that he was not ready to take the Motion, and he did not expressly state, as argued by the Respondent, that he had no instructions to argue same.

To the contrary, the Record shows that after he made the request to enable the Appellant complete the compilation of the record in respect of the appeal against the refusal of the learned trial Judge to disqualify himself from adjudicating over the matter, the learned trial Judge stated – “So you insist on that appeal”, and that is when “Obla” replied as follows-
“Yes, those are my instructions. I am No. 5 in the hierarchy”.

He did not say anything more than that and he had no opportunity to say anything more that before things fell apart. The learned trial Judge said – “you will give me two minutes”; and left the Court only to come back with the Ruling wherein he castigated the Prosecution and directed the AGF “to disband/sack/debrief the present Prosecution team of some 5 SANs and their respective firms for being incompetent in the prosecution, etc.”, and dismissed the Amended Charge and discharged the Respondent.
It is unfair, in my view, for him to accuse the Appellant’s counsel of provoking the learned trial Judge when he refused to move the Motion. The Appellant’s counsel did not refuse or say that he was not ready to move the Motion for stay that was in the process of being heard that day. The truth of the matter is that the learned trial Judge got angry over what he described in his Ruling as a persistent campaign by the Prosecution “to scandalize the court rather than mount a serious and professionally competent prosecution of the Accused”. He was angry and overreacted. In his anger, he lost sight of the fact that there was a pending Application for stay before the court being heard, and that he had only just allowed an amendment of the charge that was yet to be read to the Respondent.

True enough, it is quite human for a Judge to be angry, however, as Niki Tobi said in his book – The Nigerian Judge, the word anger is only one letter short of danger; and one letter different from angel; and since the community of any angry people is a ‘danger’ centre, a Judge should try as much as he can to ensure that his Court is not a ‘danger’ centre.
Judges are, therefore, enjoined not to lose their temper in Court so that the composure required to administer justice may not depart from the temple of justice – See Obiora v. Osele (1989) 1 NWLR (Pt. 97) 297. The main thing is that no party to a matter in Court must leave the court without having justice done to him – See Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333, which is very apt in the circumstances of this case.
In that case, the Appellants applied for their case to be transferred to another Judge. The learned trial Judge refused to transfer the case, and later charged their counsel for conspiracy with them to impugn the integrity of the court by making an unjustifiable application of transfer on the unsubstantiated ground that they will not receive a fair trial from him. He ordered him to enter the witness box and show cause why he should not be punished for contempt. Counsel apologized and burst into tears. The learned trial Judge pardoned him and then proceeded with their trial. At the close of trial, he found them guilty, and sentenced them to death. This court dismissed their appeal. In allowing the appeal and ordering a retrial, the Supreme Court per Nnamani, JSC, observed as follows –
“It was difficult to see from the record what justified the humiliation that was meted to Mr. Ehichoya. His crime appear to have been that he had the courage to apply, on the instruction of his clients, for the case to be transferred – – Bursting into tears and total loss of words to me indicates the of measure injustice to which Mr. Ehichoya believed he was being subjected. It was not quite clear on what the learned trial Judge predicated his conclusion that Mr. Ehichoya had conspired with the accused persons to impugn the integrity of the court. It is settled that it is not contempt of court to criticize the conduct of a Judge or the conduct of a court even if that criticism is strongly worded provided that the criticism is fair, temperate and made in good faith. – – From what appears later in this Judgment – – It cannot be said that the request for transfer was not a fair one, nor can it be said that whatever implied criticism of the Court was contained in the request for transfer, was not fair and was not conveyed in civil and temperature language. The bludgeoning of counsel had its desired effect – – – The conduct of the learned trial Judge was not only unfair but it was exceedingly high handed. It is hereby deprecated. As implied earlier – – the manner in which the learned trial Judge dealt with him could not have been lost on the other counsel or the accused persons. I do therefore agree – – that the proceedings induced fear in the accused persons and their counsel. This could not have led to a fair trial.”
Nnamani, J.S.C., further elaborated as follows at page 347 of the Report –
“- – Taking the learned trial Judge’s excessive interference together with his bludgeoning attitude to counsel, witnesses and Appellants, it cannot be said that the Appellants had a fair trial. The right to a fair hearing is at the root of a just and fair administration of criminal justice. An absence of it always amounts to grave injustice in a matter in which the liberty of a citizen is very much in issue. It is for this reason the constitution has given it due importance. – – – Put more directly, the question as has been settled many years ago by this court is whether a reasonable man looking at the whole proceedings would think, with all the aggressive cross-examination and the fear put in their hearts by the way the learned trial Judge dealt with Ehichoya of counsel, the Appellants had anything but a fair trial. The learned trial Justices of the Court of Appeal obviously thought differently”.
In his own judgment at pages 353/354, Nnaemeka-Agu, JSC, held-
“It appears clear to me that the learned Judge’s invocation of his power to punish for contempt of his Court in the circumstances of this case is an unwarranted exhibition of naked judicial power. That should be avoided. After all the rationale for contempt is the need to vindicate the dignity of the Court and thereby protect due administration of justice, rather than to bolster the power and dignity of the Judge as an individual – – Worse, by such unwarranted exhibition of naked judicial power which put counsel and their clients in fear of the Court, an important trammel of fair trial had been eroded. One point we must always bear in mind is that fair hearing incorporates a trial done in accordance with the rules of natural justice. And natural justice in the broad sense of justice done in the circumstances which are fair, just, equitable and impartial. This aspect of natural justice carries with it the implication that justice should not only be done but should manifestly and undoubtedly be seen to be done – – The situation, as borne out by the record, is that in this case, the learned Judge was accuser, witness and Judge at the same time. There was indeed no other accuser or witness to be charged of conspiracy than himself, even though there was no suggestion that it took place in his presence. He had to bring down the whole weight of his judicial authority upon counsel and subjugated all the accused persons to submission to his adjudication, after they had dared to apply for transfer to another court! For myself I do not see how a counsel who had been humiliated like Mr. Ehichoya was in Court in that case and reduced to a weeping suckling could stand his ground and insist on justice for his clients. Nor how the other counsel could have summoned courage to do the same in the atmosphere that had been created. In my Judgment, fair hearing must include giving to a party or a legal practitioner of his choice the opportunity to present his case before an impartial court or other tribunal in an atmosphere free from fear and intimidation. For what I have said, it could not be said that either counsel or their co-accused who were all standing trial on a capital charge were given the necessary atmosphere for fair trial. – – I cannot over-emphasize the fact that in our adversary system of administration of justice the freedom of counsel to put across his client’s case without fear or favour is a most important ingredient. That element was very lacking in this case”.
Can I say the situation in this case is any better? The learned trial Judge delivers a Ruling wherein he allowed the amendment of the Charge, and calls on parties to take the Application for stay that was pending in Court. Before the Application could be moved, and angered by the fact that the Appellant’s counsel was insisting on an appeal against his earlier Ruling, he asks for two minutes; leaves the Court and comes back to deliver a Ruling castigating and denigrating the Prosecution team of five SANs, who were not even in Court that day. What was the basis for the Ruling? He made no reference to the request that had been made for the record, and the Application for stay had not been moved before he left the Court.
Socrates, the ancient Greek Philosopher said, “four things belong to a Judge; to hear courteously, to answer wisely, to consider soberly, and to decide impartially”. There has to be some basis for his decision before we can question whether a Judge complied with these attributes. There is no question that the learned trial Judge denied the Appellant a fair hearing when it proceeded to dismiss the Charge and discharge the Respondent without a word from it or an Application on which to base its decision to so do. The decisions of a Court are not made up in the air. They must have a foundation; something on which to base the decision.

Besides, it is settled that it is the duty of a Court to entertain and decide on the merit of any application brought before it by any party see Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 642, where it was held –
“A Court of law has a legal duty in our adjectival law to hear any Court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The Court must hear the party or parties and rule one way or the other. A Judge, whether of a Court of law or Tribunal, has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1/5/1999 is against the provisions of S. 33(1) of the 1979 Constitution on fair hearing and particularly the natural justice rule of audi alteram partem”.
See also Mobil Producing (Nig.) Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 346, where the Supreme Court per Uwaifo, JSC, clearly stated-
“It is not only essential but mandatory for a Court before which a motion (or application) has been brought to hear and determine it at the appropriate time. It has no right to refuse to hear it unless possibly in a proper circumstance in the exercise of its punitive jurisdiction against a contemnor of a Court order who is expected to purge himself of the contempt before he could be heard. Otherwise the Court must set the motion down and hear and determine it one way or another even if it might be of the opinion that the motion was brought late and that what it seeks is downright irregular and frivolous. It has to give the Applicant a hearing. It is a basic right. If for any reason the motion was not expeditiously drawn to the attention of the Court by the officials who ought to do so, that could be no excuse for simply discountenancing it when later the Court came to learn of its existence and instead proceeding to give Judgment or make some order more particularly when a decision on the motion was likely to have had a bearing on the Judgment or order. The adversarial system of our justice administration demands no less. A refusal of a Court to hear a motion is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the audi alteram partem rule of natural justice. It is perhaps important to add that if a Judge or Court were at liberty to decide to ignore any motion filed in Court it would raise a fundamental issue. There will be a danger that instead of allowing the administration of justice to be done upon a compulsory even keel, it may be left to the tyranny of the arbitrary or selective decision of a particular Judge or Court as to if and when any motion will be considered at all. The consequences of this to the normal run of court proceedings are disturbing to contemplate”.

In this case, I am sure that any bystander, who watched what transpired that day in Court, would certainly come away with the impression that the Appellant did not get a fair hearing. It’s Ruling is a nullity, and I so hold.

The appeal succeeds and is allowed. The Ruling delivered by the lower Court on 2/4/2012 is set aside, and Charge No. FHC/L/443C/2009 is remitted to the lower Court for accelerated trial beofore another Judge.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned brother, AMINA ADAMU AUGIE, J.C.A. had afforded me the opportunity to read before now the draft copy of the lead judgment just delivered.

I observe that the issues in contention were in her usual style, exhaustively dealt with I agree with the reasoning and conclusion contained therein.

The act of the learned trial judge in dismissing the Amended charge against the Respondent without even a fresh plea being taken and without deciding on the motion for stay of proceedings slated for hearing that same day just because the learned counsel for the prosecution made an innocuous oral application is to my mind a clear case of denial of fair hearing. The right to fair hearing is a well protected and guaranteed right under the Constitution of the Federal Republic of Nigeria 1999. It is indispensable for the purpose of declaring any trial as fair and the true test is the impression of a reasonable man who was present at the trial whether from his observation, justice has been done in this case. See TORRIS v. NATIONAL PARK SERVICE OF NIGERIA (2011) 13 NWLR (Pt 1264) 365; BABA v. NIGERIA CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (Pt. 192) 388; DEDUWA v. OKORODUDU (1976) 10 SC 329; OKAFOR v. A-G, ANAMBRA STATE (1991) 2 SCNJ 345. In NALSA TEAM & ASSOCIATES v. NNPC (1991) 11-12 SC 83 it was held that it is fundamental principle of our administration of justice to hear all applications properly brought before the court. Accordingly, where an application is properly brought before the court, the principle of fair hearing demands that it should be heard on the merit. There is no doubt that the high handed and irrational manner in which the learned trial judge dismissed the charge brought against the Respondent and (for which he had granted an order for amendment that same day) without hearing the Appellant amounts to a denial of the Appellant’s right to be heard and constitutes a direct infringement of the age long maximum of audi alteram partem, which in effect is a denial of fair hearing. See OTAPO v. SUNMONU (1987) 5 SC 228. The law is trite that once there is a breach of right to fair hearing, the whole proceedings in the course of which the breach occurred and decision reached by the court becomes a nullity. See ANPP v. INEC (2004) 7 NWLR (Pt. 871) 16.

For this and the fuller reason contained in the lead judgment I also hold that this appeal is meritorious and it is hereby allowed.

The impromptu Ruling delivered by the lower court on 2-4-2012 is hereby set aside for being a nullity and charge No FHC/L/443C/2009 is ordered to be remitted back to the lower court for accelerated trial before another judge.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege of reading the draft judgment of Hon. Justice AMINA ADAMU AUGIE, J.C.A., and I entirely agree with the reasoning and conclusions reached which are so well set out therein except, to add a few words of mine due to the peculiar nature of this case.

This is a fallout of the bar and bench relationship due to the action and reaction culminating in the ruling under appeal, which can be glimpsed from a community reading of the entire record of proceedings.

A court is bound by the records before it, an appellate court deals with cold facts not sentiments and emotions of the bar and bench see LEADERS & CO. LTD v. BAMAIYI [2010] 1 NWLR (Pt. 329) at 345 PARAS. C-D; OKONKWO v. OKONKWO [2010] 14 NWLR (Pt. 1213) 22; OGHIRI v. N.A.O.C. LTD [2010] 14 NWLR (Pt. 1213) 208; ALI v. SALIU [2011] 1 NWLR (Pt. 1228) 227; ONKABATSE v. OPUYE [2010] 14 NWLR (Pt. 1213) 50; ALIYU IBRAHIM GEBI v. ALHAJI GARBA DAHIRU (2011) LPELR-9234(CA).
In the case of ORUGBO v. UNA (2002) 16 NWLR (Pt. 792) 175, TOBI, JSC stated:
“An appellant court has no jurisdiction to read into the record what is not there and equally has no jurisdiction to read out of the record what is not there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate must read the record in it exact con and interpret it.”

The build up to the proceedings herein was that a preliminary objection was filed to the amended charge for it to be struck out, following which the prosecution sought to further amend their charge. This again attracted another preliminary objection by the Respondent. While this was pending, the chairperson of the Economic and Financial Crimes Commission (EFCC) petitioned the Chief Judge of the Federal High Court for the criminal charge to be reassigned.

While awaiting response, the Appellant further filed a motion on 28/9/11 before the court to disqualify itself on the ground of bias against the EFCC.

On the 31/1/12, the Appellant moved its motion for the court to disqualify itself, which the court refused immediately and adjourned to 9/2/12 for the preliminary objection filed by the Respondent. On this date, the Respondent had that morning filed a motion for stay of proceedings but the court directed that the preliminary objection be argued and thereafter delivered a ruling allowing the amendment of the charge on 2/4/12 and in a subsequent proceeding, upon the request of counsel for the court to avail the prosecution the record of the court to enable them complete compilation of the record in respect of the appeal filed by them (on the refusal of the court to disqualify itself) as these were his instructions, the trial judge commented quite strongly on the conduct of the prosecution team in an earlier ruling on the amendment to the effect that that they were employing several means towards stalling the case and delaying trial, and again in the ruling of 2/4/2012 complained on their conduct and termed them incompetent.

To my understanding, it is the pace and unfortunate turn of events in the court that made the learned trial judge obviously so upset and angry and counsel’s uncomfortable position with the stance of the court; that he wanted the records as a matter of urgency evidently due to the court’s refusal to disqualify himself on allegations of bias.

The following was what transpired in court that day:

OBLA: Before we take the motion for stay of proceedings we wish to have your lordship indulgence to avail us the records of your lordship’s proceedings to enable us complete our compilation of record, in respect of the appeal the prosecution has filed on the 7th day of February against the ruling of your lordship of 31st January, 2012.”
COURT: So you insist on that appeal
OBLA: Yes, those are my instructions. I am No. 5 in the hierarchy.”
COURT: You will give me two minutes
…………..”

The request of Prosecution counsel for the records from the trial judge was quite disrespectful, irritating and provocative at that time. Above all, for an ‘indulgence’ it is an administrative duty which is undertaken by the Registry of Court and not the Judge.

It has become the fashion/habit of counsel in our courts to (openly during proceedings) demand in a disrespectful tone for a record of proceeding, ruling or judgment immediately after a decision has been delivered or announcing that they will appeal and the court should make same available – (though an appeal is a constitutional right but there are procedures to be followed before exercising same) – forgetting that its duty of counsel to apply for such records from the registry who will collect and type same, proof read and collate before payment is made on approval of the designated officer before it is released to whoever has made such application. In the case of an appeal, the rules clearly state a time frame, while stating that it is the responsibility of the Registrar to compile within 60 days and failure of which the appellant will do same in 30 days as provided under the Court of Appeal Rules 2011. This is the known and established procedure in this regard.

By asking for this “indulgence” and responding in this manner: “yes those are my instructions. I am no. 5 in the hierarchy” is to suggest or imply that the court had withheld or sat on and/or refused to release the records, coupled with the petition and the motion to disqualify, appear to be calculated towards showing disrespect to the court.
A counsel cannot insist on the order of proceedings/procedure because a court is in control of its proceedings and not counsel, neither can a counsel dictate how a court will direct itself during proceedings.
NIKI TOBI, JSC held in M.M.S. LTD. v. OTEJU [2005] 14 NWLR (Pt. 945) 517 at 541 that:
“It must be stated loud and clear again in this time of our jurisprudence that; the rule of the profession set out minimum standard in our courts of law, including the Tribunals that such counsel have a duty to maintain such minimum standard of conduct and behavior. By Rule 1 of its Rules of Professional conduct, it is the duty of the lawyer to maintain towards the court respectfully attitude not for the sake of the temporary incumbent of the judicial officer but for the maintenance of its supreme importance. Rule 3 enjoins a lawyer to display a dignified and respectful attitude towards the presiding Judge not for the sake of his person but for the maintenance of respect and confidence in the judicial officer”
In this case at hand, it must be said that there is nothing in the ruling that shows the chronological issues leading to the contents, which are glaring in the records before us. I therefore adopt the pronouncement of NIKKI TOBI, JSC as mine.
Two wrongs they say do not make a right. Notwithstanding the brewing situation in the court room, there were other options open to the prosecution team to adopt. They could seek assistance in chambers, go to the Division Registrar or write formally to court if there are difficulties among other options available.
The tradition in the legal profession is that respect begats respect. However, it must be noted that no matter the situation in the court room, a counsel owes a duty to maintain his cool and must remind himself of his duty to the court as a minister in temple of justice. The question here is: will a reasonable and fair minded observer who watched proceedings to the end or who reads the ruling be able to come to conclusion that the court has been fair to all parties? I THINK NOT! The court by dismissing and discharging the accused person, lost sight of the fact that a criminal proceeding is not against the lawyer but affects the interest of the society at large.

On the other hand, it must be stated here that it is one of the etiquettes of a judicial officer to respect the bar/counsel and maintain his cool no matter what degree of provocation or disrespect a counsel before him must have put forward.

What would the unlearned mind think of the situation? What kind of example is being exhibited for the new wigs? What legacy/tradition is being passed down?

Clearly, the court room is not an avenue for a grand finale or a contest but a hallowed place for judicial proceeding to be conducted. The judge, when he rose ought to have calmly taken another look and reappraise the situation, put down the antecedents that seem to provoke or irritate him into pen and paper i.e. the record book to enable the reasonable man follow the reasonings and conclusions reached in the ruling.

But alas!!! In this case this was not done. In fact there is no connection with the ‘indulgent’ request made or comments thereon or a review of past behaviour for purposes of clarity but an explosive reaction, from the blues when the court said:

“……… This Prosecution team has chosen to persist in a campaign to scandalize the Court rather than mount a serious and professionally competent prosecution of the accused……”

The above was certainly a cumulative reaction. Like Caesar’s wife, a judge must always be above board. In AJONUMA & ORS v. SEBASTINE NWOSU & ORS (2014) LPELR-24015(CA), it was emphasized that every judge should act as the master of his own court and should not allow any counsel/person (no matter how highly placed) to teleguide and dictate to the court how to conduct its proceedings, in the light of its laws and rules. See also the statement of NGWATU, JSC in MFA & ORS v. INONGHAO (2014) LPELR-22010(SC) when he held:
“The court has a duty to guard against an attempt by any of the parties to make an ass of the law and rule of procedure”

The instant suit is a criminal matter and the charges preferred therein are serious. It is a matter of public interest, where the public were anxiously waiting for the outcome of the proceedings. The court ought to have been slow to vent its rage in a ruling in that manner. Judicial discretion ought to have been applied by adopting the age – long tradition of rising for longer minutes or inviting both counsel into the Chambers (as these were Senior Counsel of the Bar) or out rightly adjourning the matter in order to allow tempers to cool and wise counsel to prevail.

Apparently, the Court was led by the emotions and sentiments arising from the course of event in court (alleged campaign of the prosecution), to dismiss the suit and discharge the accused howbeit, without hearing the other side or prosecution counsel or reading the charge afresh.

In MFA & ORS v. INONGHA 2014 LPELR-22010(SC), the court held that:
“… the process of fair hearing is a two edged sword and it cuts both ways. Appellants here have a right to fair hearing and fair hearing implies also that the Respondent is entitled to have his case determined within a reasonable time. The rights of the two parties must be balanced. One cannot be sacrificed for the other without perverting justice”
Effect of proceedings conducted in breach of a party’s right to fair hearing is so well settled, that no matter how such proceeding is well conducted, it would be rendered a nullity. See TOSKWA MOTORS (NIG.) LTD v. UBA PLC (2008) ALL FWLR (Pt. 103) 1240 at 1255; A. B. ADIGUN v A-G, OYO STATE (1987) 1 NWLR (Pt. 53) 674; OKAFOR v. A-G, ANAMBRA STATE [1991] 6 NWLR (Pt. 200) 659; LEADERS & CO. LTD v. BAMAIYI (SUPRA).
The Accused in the instant suit by virtue of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is entitled to fair hearing within a reasonable time. This is a fundamental right and a basic concept of rule of law. See UNONGO v AKU (SUPRA); BENSON v. C.O.P. & ANOR (2013) LPELR-21212 (CA); OYEMA v. OPUTA (1987) 6 SC 362.
An accused can be discharged, where there is no sufficient evidence linking the accused with the statutory elements or ingredients of the offence upon which he is charged before the trial court, the court is under an obligation as a matter of law to discharge him and it has no business searching and scouting for evidence that neither exist nor can be ascertain, See BAJULAYE v. STATE (2012) LPELR-7995(CA); ONAGORUWA v. STATE (1993) 7 NWLR (Pt. 303) 49 at 81-82.

In this case, there was no evidence taken, not even was the amended charge read afresh to the accused to take his plea, the court therefore suo motu dismissed the charge and discharged the accused thereby breaching fundamental principles of fair hearing leading to a miscarriage of justice thereby rendering the entire proceedings a nullity.

For this reason and more in the lead judgment I too allow the appeal and set aside the ruling of 2/4/12. I abide by consequential orders made in the lead judgment.

Appearances

J. B. Daudu (SAN) with Dr. K. U. K. Ekwueme, Esq., Adedayo Adedeji, Esq., and Miss Adetutu DisuFor Appellant

AND

Opeyemi Usiola-Kuti, Esq. with Mrs. Ogunola JegedeFor Respondent