CHIEF DIEPREYE SOLOMON PETER ALAMIEYESEIGHA V. THE FEDERAL REPUBLIC OF NIGERIA & ORS
(2006)LCN/1996(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of May, 2006
CA/L/01/2006
RATIO
INTERPRETATION OF STATUTE: AREA UNDER WHICH THE STATUTORY PROVISIONS ARE INTERPRETED UNDER THE LAW
After careful consideration of the above submissions on the 1st issue in the two briefs filed in this appeal, the gravamen of the appellant complain under the issue is against the failure or refusal of learned trial judge to strike out the action for non-compliance with the procedural rules (under both the CPA and FHCA) by the respondent (the prosecution) in filing or initiating the said action. More properly put in other words, the appellant’s main grudge is against the refusal of the learned trial judge to strike out or quash the charges said to be wrongly brought before him by the prosecution for its non-compliance with the procedural rules under both the CPA and the FHCA. In order to resolve the issue it therefore becomes necessary to consider the manner or way of filing of criminal proceedings before the Federal High Court as provided for under the above mentioned rules of criminal procedure. It is both pertinent and relieving to note at the onset that parties have (in their briefs) agreed that the two sets of procedural rules (i.e. the CPA and the FHCA) and their relevant provisions are applicable and relevant as they both provide for or regulate the institution or initiation of criminal proceeding before the trial court (the Federal High Court) in the present case. All the detailed argument or submissions of the parties under the Issue have already been set out and they need not to be repeated. I will consequently go straight to the resolution of all the points raised from the submissions under the issue. All the argument or submissions of the parties revolve on the interpretation of the relevant statutory provisions in the two laws on the institution or initiation of a criminal proceeding (or prosecution) before the High Court of a State vis or vis the Federal High Court. Interpretation of statutory provisions or legislation as raised under the issue is a subject or area in which our law reports are replete with a plethora of judicial decisions by our superior court (i.e. the Supreme Court and the Court of Appeal). The canons of statutory interpretation and the golden rule thereof have been restated on several occasions. These golden rules or principles governing the interpretation of statutory provisions have been succinctly summarized by the Supreme Court in its decision in the case of Ejuetami v s. Olaiya (2001) 18 NWLR (PT. 746) 572 at p. 593 as follows:- “(1) that it is the intention of the legislature that is being sought (i.e. the intention of the writer of the document or the statute. (2) that the intention is to be desired (or ascertained) from the words of the Act alone and not from other sources. (3) that the words used are to be given their “ordinary and natural sense” (or meaning) i.e. the legislature is to be presumed not to have put a special meaning on words. (4) that the court is not concerned with the result of its interpretation: it is not the court’s province to pronounce on the wisdom or otherwise of the Act but only to determine its meaning (see Pearce on Statutory Interpretation, page 13).” ((Italics is for emphasis). In addition to or to supplement the above, there are other rules on statutory interpretation also developed by our superior courts as they relate to the duty of the court. For example where a party to a suit complains that the provision of a statute has been breached against him or the mandatory provision has not been complied with as in the present case, thus making the interpretation of a statutory provision an issue, it then becomes the duty of the courts (whether at the trial or appeal levels) to examine the act or acts complained of (by commission or omission) and compare it (or them) with the relevant statutory provision and resolve appropriately whether there was a breach, non-compliance or substantial compliance with the law in question. A statutory provision cannot therefore be waived but must be considered by the court and given effect to whether cited by the counsel or not – see Attorney General Adamawa State vs. Ware & Ors. (2006) All FWLR (PT 306) 860 at 871 – 872, (2006) 4 NWLR (Pt. 970) 399; Anzaku vs. Governor Nasarawa State (2006) All FWLR (PT 303) 308 at 339; Miscellaneous Offences Tribunal vs. Okoroafor (2001) 18 NWLR (PT 745) 295 at 355; IBWA V. Imano (Nig) Ltd (1988) 3 NWLR (PT 85) 633; Salami vs. Chairman LEDB (1989) 5 NWLR (PT 123) 539; Balogun vs. NCSB (2003) 2 NWLR (PT 804) 389 AT 397; Owena Bank (Nig) Plc vs. NSE Ltd (1997) 8 NWLR (PT 515) 1; Odua Investment Ltd. vs. Talabi (1997) 10 NWLR (PT 523) 1; Okereke VS. NDIC (2003) 2 NWLR (PT 804) 218 at 236; and General Muhammadu Buhari & Anor vs. Alhaji Mohammed Dikko Yusuf & Anor (2003) 6 SCNJ 344; (2003) 14 NWLR (Pt. 841) 446. Although the main and relevant provisions in the two laws on which an Issue has been made in the present case have been set out verbatim in the two brief filed, it is worth while to repeat or re-state them in this judgment because of their importance to the resolution of the issue under review (i.e. issue 1). Accordingly sections 77, 78 and 277 of the CPA and section 33 of the FHCA provide or can be reproduced as follows:- Section 77 CPA: “77 subject to the provisions of any other enactment, criminal proceeding may in accordance with the provision of this Act, be instituted. (a) in Magistrate Court, on a complaint whether or not on oath; and (b) in the High Court- (i) by information of the Attorney – General of the State in accordance with the provision of section 72 of this Act; and (ii) by information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provision of part 36 of this Act; and (iii) by information filed in the court after the accused has been committed for trial by a magistrate under the provision of part 36 of this Act; and (iv) on complaint whether on oath or not.” Section 277 CPA “277. The provision of this Part of this Act shall apply to offences triable summarily, that is to say- (a) to all triais in the High Court other than on information; and (b) to all trials in the High Court in respect of offences by which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided; and (c) to all trials in any magistrate court to the extent of the jurisdiction of the magistrate adjudicating; and (d) for all offence declared by any written law to be triable summarily or on summary conviction or in a summary manner or by a magistrate.” Section 78 CPA “78. Where proceedings are instituted in a Magistrate’s Court, they may be instituted in either of the following ways- (a) upon complaint to the court whether or not on oath, that an offence has been committed by any person whose presence the magistrate has power to compel, and an application to such magistrate, in the manner hereinafter set forth for the issue of either summons directed to, or a warrant of arrest to apprehend such a person; or (b) by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed and the charge sheet shall be signed by the Police Officer in charge of the case.” Section 33 of FHCA “33. (1) Subject to the provisions of this section, criminal proceedings before the court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act, and the provisions of that Act, shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect or all matters falling within the jurisdiction of the court. (2) Notwithstanding the generality of subsection (1) of this section, all criminal cases or matter before the court shall be tried summarily:” The above provisions are in my view, very clear simple and unambiguous. They should therefore be given their simple, natural and ordinary meaning. The intention of the legislature in making the provisions is also very clear and easily ascertainable. In the case of the High Court, the intention is for the filing of an information with proof of evidence and the charge intended or sought to be preferred against the accused person so that he will have an advanced notice or knowledge of the case of the prosecution against him. It is also to give the judge before whom the information is filed or who is required to give leave to the prosecution to prefer or file the charge an opportunity to peruse those document and know whether a prima facie offence has been disclosed or made out against the said accused person before granting his leave to the prosecution to file the charges – see Egbe vs. State (1980) NCLR 341; Ikomi vs. State (1986) 3 NWLR (PT 28) 340; Abacha vs. State (2002) 11 NWLR (PT 779) 437; and Ohwovoriole vs. FRN (2003) 2 NWLR (PT. 803) 176 at 194 – 195, 208. Another rationale for the filing of an information and securing the leave of the judge is to ensure that an innocent person is not victimized, framed or persecuted rather than prosecuted before the High Court which is a superior court of record on merely false allegation or act which do not constitute any offence in law. It is very clear from the provision of section 77(a) and (b) of the CPA that the filing of an information or securing the leave of the judge for or before filing charges against an accused person is a procedure applicable only to or in the High Court proceedings. It has no application in the Magistrate Court where under subsection (a) criminal proceedings can be instituted on a complaint whether or not on oath. It is also to be noted that there may be some peculiar circumstances under which criminal proceedings before the High Court itself may be instituted just like in the Magistrate Court on a complaint whether on oath or not in accordance with subparagraph (iv) of section 77(b) i.e. section 77(b)(iv). The distinction in the procedure for institution of criminal proceedings before the Magistrate Court and the High Court under the provision of section 77 is deliberate and is intended by the legislature to make the institution or initiation of proceedings in the former court prompt, simple and less cumbersome. Section 33 of the FHCA which provides that criminal proceedings before the Federal High Court shall be conducted substantially in accordance with the provisions of the CPA expressly makes the application of the said provision of the CPA or the substantial conduct of criminal proceedings in the Federal High Court subject to the provisions of the section (i.e. section 33 FHCA). Thus the application or invocation of the provision of the CPA in the conduct of criminal proceedings is only possible or permissible subject to or in the absence of any provision therefore in section 33(1) of the FHCA (supra). Therefore where a contrary provision is made in the FHCA different from that in the CPA, as regards the conduct of criminal proceeding, the former shall prevail. This is immediately followed by a provision or an exception in subsection (2) of section 33 FHCA (supra) which provides that notwithstanding the generality of subsection (1) of the section all criminal causes or matters before the court shall be tried summarily. This provision is also deliberately inserted or made in section 33 with the intention by the framers of FHCA to make the criminal proceedings before the Federal High Court more speedy easier and less formal or less cumbersome than those in the State High Court where the CPA is generally applicable. I agree with the learned senior counsel for the appellant that the provisions of section 77 and 340 CPA on the filing of information and securing the leave of the judge to prefer or file charges apply generally to the High Court in all the Southern States except Lagos State where the learned counsel himself agreed that the filing of information before a judge has been abolished by the Criminal Procedure (Amendment) Edict 1987. I am however unable to agree with the learned senior counsel in his assertion that the requirement for leave and the need for the Federal Attorney General to file a criminal information are still prerequisites under the CPA applying to criminal trials before or in the Federal High Court. My stand is based on the express proviso or exception made in subsection (2) of section 33 of the FHCA (supra) which provides in a mandatory term that criminal matters or causes before the court shall be tried summarily. It should also be emphasized that the provisions of section 77 upon which the appellant relies for his above assertion is itself made only applicable subject to the provision of any other enactment. Thus where there is another enactment or law as in the case of the Federal High Court (in its section 33 (2) or of Lagos State (in its Edict No.4 of 1979) the application of section 77 in the Lagos State High Court or the Federal High Court is clearly excluded (as in the instant case). The use of the words “shall be tried summarily” used in subsection (2) of section 33 (2) FHCA also prescribes or enjoins a summary trial of criminal cases before the Federal High Court similar to summary proceedings in the Magistrate Court as provided or in section 277 of the CPA. Clearly from the wording of the later section trials on information are excluded or are different from the concept or conduct of a summary trial. The submission of the appellant counsel to the effect that trials in the Federal High Court should be by way of information is therefore wrong and misconceived. The distinction sought to be drawn in the appellant brief between the manner of initiating criminal trials and how to conduct such trial should also be rejected as a mere rhetoric and academic rather than practical. In my humble view the manner of conducting trials and how they are initiated are interrelated and dependent on the other or cannot be separated. It is the attitude of this court and the Supreme not only to frown at an academic argument and hypothetical analysis as canvassed in the appellant brief on the point but also to disregard such arguments and analysis which are not based on the substance of the case – see Ariori vs. Elemo (1983) 1 SC NLR, Nkwocha vs. Governor of Anambra State (1984) 1 SCNLR 634, Coker vs. Olukoga (1994) 2 NWLR (PT 329) 648; UBN Plc vs. Sepok (Nig) Ltd (1998) 12 NWLR (PT 578) 439 at 480; and Agbo vs. State (2006) All FWLR (PT 309) 1380 at 1412; (2006) 6 NWLR (Pt. 977) 545. I therefore agree with the submission of the respondent’s learned counsel that all the requirement for the filing of complaint or charges in the Magistrate Court or for the institution of a criminal proceeding in Magistrate Court in accordance with Section 78 of CPA have been substantially complied with in the present case. Consequently the case was instituted in a summary manner or by way of a summary trial procedure as recommended in section 33 (2) of FHCA. The two types of trials “full” and “summary” are provided for in the CPA and they are designed as such under the said Act irrespective of their manner of initiation, institution and conduct. Thus a summary trial is and remains so in both its manner of initiation institution and conduct and is distinct from the full trial (on information) which also has its peculiar characteristics and different pre-requisites in both its manner of initiation, institution and conduct. It will therefore be wrong and contrary to the letter and spirit of the law (i.e. the CPA) to differentiate between the manner of initiating a summary trial and the way it is conducted. Similarly, we cannot differentiate on how a full trial on information can be commenced or initiated from how it will be conducted. Thus a summary trial is or remains as such from its inception to its conduct and conclusion in the same way as a full trial on information also remains with its full characteristics from its inception conduct and conclusion as recommended by the law and it would be a double standard to mix them up or to expect such a full trial to (on information) be commenced or be initiated summarily and be conducted or concluded fully (or as a full trial). In the same manner a summary trial cannot be expected to commence fully and be conducted or concluded summarily. It is very clear from the wording of the provision in subsection (2) of section 33 of the FHCA (supra) that all criminal causes or matter before the Federal High Court shall be tried summarily. The provision does not differentiate between the manner of initiation or the conduct of the said trials. Consequently, the intention is to make summary procedure (with all its ramifications) applicable in criminal trials before the Federal High Court irrespective of their stages contrary to the suggestion of the appellant’s counsel. In the last arm of his submission the learned Senior Counsel for the appellant refers (in the brief) to the provision of section 33(1) of FHCA which provides that criminal proceedings before the Federal High Court shall be conducted substantially in accordance with the provision of the CPA which should have effect in the said court with necessary modifications to bring it into conformity with the FHCA, and suggested that the provision of section 81 of the CPA which provides the procedure for the filing of a complaint before a Magistrate shall be modified by substituting the word “Magistrate” in the section with the words “judge of the Federal High Court.” With due respect to the learned Senior Counsel I find it difficult to agree with or accept his suggested amendment or modification to the law or statute (i.e. CPA). To do so or to accept the suggestion of the learned counsel which would amount to importing into the said statute words that are not intended by the legislature in order to give it (i.e. the provision) the meaning that will suit purpose of the appellant. The suggested amendment or modification is also contrary to or against the rules of interpretation of statute set out and adumbrated above. In particular, one of those cardinal rules is that the words used in the statute or law alone are to be considered and be given their ordinary and natural meaning without importing other words from other sources or without giving them any special meaning not intended by the legislature – see Ejuetami vs. Olaiya (supra); Miscellaneous Offences Tribunal vs. Okoroafor (supra); and Aqua Ltd vs. Ondo State Sport Council (1988) 4 NWLR (PT 91) 622. It is also not the function of a judge to import into any legislation word that have not been employed by the legislature and which will give a different meaning to the text of the law so promulgated by the legislature. The judge must not bring to bear his personal feeling or prejudices as to what the law should be but rather to what it is from the clear wordings used by the legislature – see Fawehinmi vs. IGP (2000) 7 NWLR (PT 665) 481 at 529; and Major and St. Mellons Rural District Council vs. Newport Corporation (1952) A.C. 189 at 199 cited in the respondent brief. PER DALHATU ADAMU, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
Between
CHIEF DIEPREYE SOLOMON PETER ALAMIEYESEIGHA Appellant(s)
AND
1. THE FEDERAL REPUBLIC OF NIGERIA
2. SOLOMON & PETER LIMITED
3. SANTOLINA INVESTMENT CORPORATION
4. PESAL NIGERIA LIMITED
5. SALOMEIN & ASSOCIATED (NIG) LIMITED
6. KPEDEFA NIGERIA LIMITED
7. JETTY PROPERTY LIMITED
8. HERBAGE GLOBAL SERVICES LIMITED Respondent(s)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of May, 2006
CA/L/01/2006
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
Between
CHIEF DIEPREYE SOLOMON PETER ALAMIEYESEIGHA Appellant(s)
AND
1. THE FEDERAL REPUBLIC OF NIGERIA
2. SOLOMON & PETER LIMITED
3. SANTOLINA INVESTMENT CORPORATION
4. PESAL NIGERIA LIMITED
5. SALOMEIN & ASSOCIATED (NIG) LIMITED
6. KPEDEFA NIGERIA LIMITED
7. JETTY PROPERTY LIMITED
8. HERBAGE GLOBAL SERVICES LIMITED Respondent(s)
DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Lagos (per M.L. Shuaibu, J) delivered on 23/12/05. In the said ruling, the application for stay of proceedings and for striking out the 40 counts charge(s) against the 1st Accused/Appellant (hereinafter called “the Appellant”) was refused and dismissed. The Appellant who is dissatisfied with the ruling of the trial court now appeals against it in this court… The facts leading to Appellant’s application before the trial court (the subject – matter of this appeal) as stated in and gathered from the two briefs filed in this appeal are as follows:-
The Appellant who is the former Executive Governor of Bayelsa State was impeached by the Bayelsa State House of Assembly on 9/12/05. After his impeachment the Appellant was immediately arrested and detained by the Economic and Financial Crimes Commission (EFCC) which filed the above mentioned criminal charges against him and 7 others (i.e. 1st – 7th Accused/Respondent) for money – laundering and other economic and financial crimes or offences. The charge and proof of evidence were served on the said Appellant on 19/12/05 and he was brought to the trial court for an arraignment on the following day (20/12/05). The 2nd – 5th Accused/Respondent (also hereinafter called “the 2nd – 5th respondents) were also served with the above mentioned criminal processes on the same day with the Appellant while the 6th – 8th Accused/Respondent (hereinafter called “the 6th – 8th respondent”) were served on 22/12/05. When the case came up for arraignment on 20/12/05 and upon the objection raised by the Appellant learned senior counsel, the matter was adjourned to 23/12/05 for the plea of all the respondent to be taken on that date. However, on 21/12/05, the learned counsel for the appellant filed a motion for stay of proceedings and for the charges to be struck out for their being brought contrary to the provisions of the Criminal Procedure Act (CPA) and the Federal High Court Act. It was on this subsequent motion brought by the Appellant which was refused and dismissed by the learned trial judge who proceeded to take the plea of the Appellant and 2nd – 8th respondent that present appeal is based and brought or filed by the Appellant in this court.
It has to be mentioned at this onset that although the 2nd – 8th respondents were respectively represented by their learned counsel at the hearing of the appeal by this court on 7/3/06, they were so represented as mere nominal respondents in the present appeal and the main battle is between the Appellant and the 1st Respondent as the only parties who filed briefs of arguments. Thus all the other nominal respondents who did not file briefs of arguments and did not seek to do so at the hearing, have chosen or opted to abide by whatever is the outcome or whatever decision is given by this court in its final determination of the appeal. Consequently in this judgment, we have only the two briefs (of the appellant and 1st respondent) which were filed in accordance with the rules of this court to consider. It is also pertinent to state at this stage that the appellant’s motion for stay of the proceedings at the lower court dated 16/1/06 and filed on 17/1/06 which was pending in this court was withdrawn on 7/3/06 with the mutual consent of all the learned counsel and struck out by this court before the commencement of hearing of the present appeal.
In the appellant’s brief, dated 8th February, 2006 and filed the next date (9/2/06) five (5) issues for determination of the appeal are formulated. (see page 3-4 thereof); they are as follows:-
“ISSUES FOR DETERMINATION
1. Should the trial Judge not have struck out the action on the ground that same was not commenced in compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act?
2. Was the trial Judge right in refusing to countenance and or place any reliance of (sic) the documents exhibited to the affidavit in support of the appllcalion of the 1st accused (appellant) on the ground that they are inadmissible.
3. Was the trial Judge right in holding that exhibit OD4 is inadmissible, if he was wrong in so holding, what should have been the effect of this on the application of the 1st accused (appellant).
4. Having refused to countenance the exhibit attached to the affidavit evidence, should the trial Judge not have considered the uncontradicted facts in the affidavit evidence to grant the reliefs sought?
5. should the criminal proceedings before the trial court be stayed?
In the 1st respondent’s brief, only two (2) issues for determination are framed or distilled as follows:-
“Issues for determination
It is submitted that there are only two issues arising for determination by this court having regard to the decision of the lower court and the grounds of appeal filed by the appellant. The issues are:-
1. Whether the charge against the appellant was not initiated in substantial compliance with the provision of the Criminal Procedure Act and the Federal High Court Act (see ground 6).
2. Whether the lower court was wrong in refusing to stay criminal proceedings in charge No. FHC/L/328C/2005 pending the hearing and final determination of the two civil actions in suits Nos. FHC/ABJ/CS/622/2005 and YHC/173/2005 (see grounds 1, 2, 3, 4, 5 and 7).
It is clear from the above reproduced issues in the two briefs that even though the said issues are different in their numbers or wordings they are however substantially the same in both briefs. Thus, the learned counsels for the parties have mutually accepted the real issues calling for determination in the appeal. For the purpose of this judgment, I will adopt the two issues, as formulated above in the 1st respondent’s brief. The appellant submissions (under his 5 issues) which are relevant to the 1st respondent issues will be duly considered along the line. This approach to the issues in the two briefs is in order and in consonance with the oral submissions canvassed by the learned counsel for the parties where the real issues in the appeal were narrowed down into two main complaints by the appellant in the appeal. The first complain is against the irregularity in the procedure for the filing of criminal charge or action in Federal High Court which was said to be done contrary to the provision of the CPA and the Federal High Court Act (FHCA). The appellant’s second complaint is on the trial court refusal to grant his application for stay of the criminal proceedings against him which were instituted before the said trial court. Therefore on the issues as narrowed down by the learned counsel, the appellant issues can be categorized into two. Thus based on the two topics the appellant issues can be merged so that issue one (on the procedural error under the CPA and FHCA) can be considered as one issue while issues 2, 3, 4 and 5 (which are on stay of proceedings at the trial court) can be considered together as his 2nd issue or a reply to 1st respondent’s 2nd Issue.
Under issue No 1 of the appellant’s brief which also corresponds to Issue 1 of the 1st respondent, the main complaint of the appellant is against the refusal of the learned trial judge to strike out the charge(s) or the criminal action against him on the grounds of non-compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act (supra) in the initiation of the action or the criminal prosecution of the said appellant before the lower court. Under the issue it is pointed out in the appellant brief that both the appellant and the prosecution (i.e. 1st respondent) agreed at the trial court that the criminal prosecution in the present case is regulated by and can only be initiated in accordance with the provision of Section 77 of the CPA – See the ruling of the learned trial judge at page 96 of the record of appeal referred to in the appellant’s brief. The provision of section 77 of the CPA (supra) is also reproduced in-extenso in the brief and it is submitted that the relevant provision of section 77(b) (i) must be read together with section 72 of the Act specifically referred to or mentioned in the paragraph of the subsection under which the Attorney-General is vested with the power to file the information. Thus the appellant contends that for a criminal prosecution to be initiated before the Federal High Court as in the instant case, all the requirement or prerequisites for the filing of an information must be satisfied. These include the filing of a formal application for leave to prefer a charge by the Attorney-General of the Federation. In this regard section 340 of the Act (i.e. CPA) is cited by the appellant under which the leave or consent of the judge is made a prerequisite to the filing of such an information. It is pointed out that the requirement for the leave of court before filing an information under the CPA is still applicable in the criminal trial or prosecution at the Federal High Court even though it is conceded that such requirement has been abolished in Lagos State under the Administration of Justice (Miscellaneous Provisions) Edict No.4 of 1979 and the Criminal Procedure (Amendment) Edict 1987. The celebrated case of Ikomi vs. The State (1986) 3 NWLR (PT 28) 340 where it was held that the requirement for leave to file information is still applicable under the CPA in Bendel State is cited in the brief in support of the above contention of the appellant. On the basis of the above submission, the appellant’s brief criticizes the finding of the learned trial judge (at page 97 of the record) that the requirement for leave or filing of information is not applicable or is not a condition for the initiation of a criminal trial in the Federal High Court by virtue of section 33 (1) and (2) of the FHCA.
On the procedure for the initiation of summary proceedings (or trials) before a Magistrate Court or a High Court, the appellant submits that in the present case, the proceedings should have been initiated by way of information since they were before the High Court. It is only when the criminal proceedings are initiated in the Magistrate Court that they can be made or brought by a complaint whether or not on oath (i.e. summarily) in accordance with section 77 (a) and (b) (iv) of the CPA. It is submitted that even under the summary procedure before the Magistrate Court, the manner for the filing of such complaints as provided for in sections 59 (i) and 60 (i) – (iv) as well as the form by which they can be brought were not complied with or satisfied. The two subsections as well as the form (Form No 3) of the complaint are reproduced in the appellant’s brief. Thus, it is argued by the appellant that the complaint in the instant case had not been made before or to the trial judge (in chamber) who is required to record and sign it under the above provisions of the CPA. It is also the appellant’s contention that another requirement for the filing of a complaint, namely that the judge after according and signing it must also issue a summons to compel the attendance of the accused person in the court, was also not satisfied in the present case. See section 81 of the CPA read together with section 33(1) of the FHCA cited in support of the appellant’s submission. It is suggested that for the proper application of the above cited provisions, it is necessary to modify the said provisions by modifying them and by substituting the word “Magistrate” with the words “a judge of the Federal High Court”. Finally, the appellant’s brief submit that in view of the appellant’s argument as canvassed above, the learned trial judge should have struck out the action or the criminal charges brought against the appellant as they were not properly initiated in accordance with the provisions of the law.
In the 1st respondent’s brief, the reply on the above submissions of the appellant on issue 1 covers 11 pages (pages 3 – 14 thereof). The issue is said to emanate from the alternative prayer (No.3) of the appellant in his motion on notice at the trial court-see page 21 of the record. The prayer is also said to be supported only by paragraph 10 of the supporting affidavit. Also the short submission or argument of the learned senior counsel for the appellant at the said trial court in support of his 3rd (alterative) prayer is reproduced in the 1st respondent brief to show that what was canvassed under the said issue is only predicated on the ground that the leave of the Chief Judge of the Federal High Court was not obtained before filing the charge and this failure amounted to non-compliance with section 77 (b) (1) of the CPA. It is pointed out in the brief that the lower court duly considered the simple submission of the appellant’s counsel and found or resolved that there was no need to leave before filing a charge in the Federal High Court. It is conceded in the 1st respondent’s brief that section 77 of the CPA regulates the method or procedure for instituting criminal proceedings at the High Court. The relevant provisions of the section 77 are reproduced in the brief and it is submitted that the provisions or procedure recommended under the section are only applicable where there is or are no other enactment(s) providing the contrary method or procedure for instituting a criminal trial or proceedings at the said High Court. It is pointed out that the main provision of the section provides in a very clear and unambiguous term (or words) that it applies only subject to the provisions of any other enactment. The 1st respondent therefore urges this court to give the words used in the main provision of the section their ordinary meaning as recommended by Lord Simmon in Magor and St. Mellons Rural District Council vs. Newport Corporation (1952) A.C. 189 at 191 and followed by the Supreme Court in Awolowo vs. Shagari (1979) 6-9 SC 51; and NDIC vs. Okem Enterprises Ltd (2004) 10 NWLR (PT. 880) 107 at 183: cited in support of the preposition. It is then submitted in the 1st respondent’s brief that in line with the above rule of interpretation, section 77 of the CPA (supra) only applies subject to and is inferior to the provision of section 33(2) of the FHCA (supra) which also provides for the institution of criminal proceedings at the Federal High Court and prescribe that it should be by way a summary trial. Thus it is suggested in the 1st respondent’s brief that the substantial compliance with the CPA recommended or envisaged in section 33(1) of the FHCA should be modified to conform with section 33(2) recommending a summary trial proceedings in the Federal High Court. The definition of a summary trial or proceedings as given in Black’s Law Dictionary (6th Edition) page 1204 (see also 8th Edition, page 1242) as well as section 2 of the CPA are cited and quoted in the 1st respondent’s brief to show that the procedure therefore is prompt, short, simple and out of the regular course of the common law procedure or practice. Section 277 of the CPA which gives a more vivid description of a summary trial is also cited and reproduced in the 1st respondent brief. It is submitted that by the combined reading or effect of sections 77(b) (i) and (iii) and 277 of the CPA on a summary proceedings a trial by the filing of information or securing leave to prefer charge(s) is excluded. Also on the above provisions of the CPA, the brief contends, a criminal trial before the Federal High Court cannot be instituted by way of information. Rather they are to be instituted and conducted summarily or under a summary trial proceedings in the same manner as in the Magistrate Court.
On the manner of commencing or initiating a summary trial, the 1st respondent (in its brief) refers to sections 77 (a) and (b) (iv) and 78 (a) and (b) of the CPA and submit that a trial or prosecution can be initiated or instituted by way of complaint where an accused person is not in custody in order to compel his attendance. Where the accused person is already in custody or he has been arrested as in the instant case, the respondent submits, all that the prosecution needs to do is to bring him before the court on a charge sheet in accordance with section 78(b). It is also the respondent’s contention that even under section 77 (b) (iv) the word “complaint” can also be interpreted to mean “a charge” – see Blacks Law Dictionary 8th Edition page 303 where such a definition can be found: see also section 2 of the CPA; Obike vs. L.P.D.C. (2005) All FWLR (PT 274) 337 at 408; (2005) 15 NWLR (Pt. 949) 471 (per Pats Acholonu JSC) and criminal law and procedure of the Southern States of Nigeria (3rd Edition) by Akinola Aguda at p.19 paragraph 116 for similar definitions cited in the brief.
The 1st respondent also submits that the Federal High Court is a court of summary criminal jurisdiction by virtue of section 33(2) of the FHCA. It is therefore regular before that court to initiate a criminal proceeding by filing a charge – sec Oluwatoym vs. Doherty (supra) “Criminal Procedure in Nigeria Law and Practice” at p.71; by Aguda (supra); section 27 and 78 of the CPA cited in the brief in support of the submission. This court is urged by the 1st respondent to uphod the finding of the learned trial judge at page 97 of the record of appeal where he re-stated and affirmed the above position of the law. On the question of whether or not leave of the judge is required for filing a charge in the Federal High Court, the respondent submits that leave is only required where an information is filed in the initiation or commencement of a trial (under sections 77 (b) (1) and 72 of the CPA). Consequently, the respondent argues, since what was filed in the present case was a charge rather than an information (by the AG of the Federation) no leave is required. The holding of the learned trial judge to that effect (at page 77 of the record) is said to be right and proper. The case of Ikomi vs. The State (supra) heavily relied upon by the appellant’s counsel is also said to be inapplicable to the present case which was initiated by the filing of a charge rather than an information. The appellant’s contention based on the authority of that case is said to be misconceived. It is pointed out in the 1st respondent brief that no leave of a Magistrate is required under the law for initiating a summary trial before the Magistrate Court.
Under another heading of its brief on the 1st issue the 1st respondent raises the question of whether the issuance of summons is mandatory for an accused person who is already in custody. The question is answered in the negative and the emphasis placed by the appellant’s learned senior counsel on the need or necessity for the learned trial judge to issue a summons to compel the appearance of the appellant at the trial court and issue a summons in order to secure the attendance of the said appellant in accordance with section 81 of the CPA is said to be uncalled for or misconceived. Reference is made in the brief to section 78 (b) of the CPA which provides for the proceeding in the Magistrate Court where it is stated that an accused person who has been arrested without a warrant can easily be brought upon a charge or on a charge sheet containing some particulars. It is argued that the particulars required to be on the charge sheet under that provision have all been supplied or complied with by the prosecution (1st respondent) in the present case and there was therefore no need for the trial judge to issue any summons to compel the appearance of the appellant who was already in custody. It is stated in the brief that the issuance of summons or warrant of arrest is meant to compel or secure the attendance of an accused person in the court and even when they are not issued, that failure will not affect the validity of the proceedings or the jurisdiction of the court – see Okotie vs. C.O.P. (1959) 4 FSC 125 cited in support of the 1st respondent’s above argument. On the suggestion of the appellant’s counsel (at p. 11 of his brief) that the trial court should interpret or modify the provision of section 59 of the CPA by substituting the word “Magistrate” used therein with the word “Judge”, the 1st respondent criticizes that suggestion as being contrary to the golden rule of interpretation of statutes or statutory provisions which are clear and unambiguous and the courts are enjoined to give them their ordinary meaning. The courts are also prohibited by the said golden rule from importing into the legislation or statutory provision words or meanings not intended by the legislature – see Fawehinmi vs. I.G.P. (2000) 7 NWLR (PT. 665) 481 at 529 cited in support of the preposition. The 1st respondent’s brief also points out that the appellant’s argument relating to issue 1 before the lower court concentrated on the failure of the prosecution to obtain the leave of the trial judge before filing the charge against the said appellant. The decision of the lower court is also said to be based on that issue or point as canvassed before it by the said appellant. In view of this, the 1st respondent argues in its brief that by now raising another issue or point on the trial court’s failure to issue a criminal summons against the said appellant, which issue was never raised at the lower court, the said appellant or his learned senior counsel are raising a fresh issue before this court as an appellate court. This is said in the 1st respondent brief to be contrary to the settled principle of law that a party wishing to raise such a fresh issue on appeal or before an appellate court which issue was not raised or canvassed at the lower court can only do so after or upon seeking and securing the leave of the appellate court to do so. See Kadzi International Ltd v. Kano Tannery Co. Ltd. (2004) 4 NWLR (PT 864) 545 AT 564 – 565, Ojabo vs. Inland Bank (Nig) Ltd (1998) 11 NWLR (PT 574) 433; and Akaare Jov. vs. Kutuku Dom (1999) 9 NWLR (PT 620) 538 cited in support of the above submission in the 1st respondent brief.
The 1st respondent finally urges this court to hold that the charge against the appellant in the instant case was initiated in substantial compliance with the provision of the CPA and the FHCA and to resolve the appellant’s issue No.1 (which also corresponds with the 1st respondent Issue 1) against the said appellant.
After careful consideration of the above submissions on the 1st issue in the two briefs filed in this appeal, the gravamen of the appellant complain under the issue is against the failure or refusal of learned trial judge to strike out the action for non-compliance with the procedural rules (under both the CPA and FHCA) by the respondent (the prosecution) in filing or initiating the said action. More properly put in other words, the appellant’s main grudge is against the refusal of the learned trial judge to strike out or quash the charges said to be wrongly brought before him by the prosecution for its non-compliance with the procedural rules under both the CPA and the FHCA. In order to resolve the issue it therefore becomes necessary to consider the manner or way of filing of criminal proceedings before the Federal High Court as provided for under the above mentioned rules of criminal procedure. It is both pertinent and relieving to note at the onset that parties have (in their briefs) agreed that the two sets of procedural rules (i.e. the CPA and the FHCA) and their relevant provisions are applicable and relevant as they both provide for or regulate the institution or initiation of criminal proceeding before the trial court (the Federal High Court) in the present case. All the detailed argument or submissions of the parties under the Issue have already been set out and they need not to be repeated. I will consequently go straight to the resolution of all the points raised from the submissions under the issue.
All the argument or submissions of the parties revolve on the interpretation of the relevant statutory provisions in the two laws on the institution or initiation of a criminal proceeding (or prosecution) before the High Court of a State vis or vis the Federal High Court. Interpretation of statutory provisions or legislation as raised under the issue is a subject or area in which our law reports are replete with a plethora of judicial decisions by our superior court (i.e. the Supreme Court and the Court of Appeal). The canons of statutory interpretation and the golden rule thereof have been restated on several occasions. These golden rules or principles governing the interpretation of statutory provisions have been succinctly summarized by the Supreme Court in its decision in the case of Ejuetami v s. Olaiya (2001) 18 NWLR (PT. 746) 572 at p. 593 as follows:-
“(1) that it is the intention of the legislature that is being sought (i.e. the intention of the writer of the document or the statute.
(2) that the intention is to be desired (or ascertained) from the words of the Act alone and not from other sources.
(3) that the words used are to be given their “ordinary and natural sense” (or meaning) i.e. the legislature is to be presumed not to have put a special meaning on words.
(4) that the court is not concerned with the result of its interpretation: it is not the court’s province to pronounce on the wisdom or otherwise of the Act but only to determine its meaning (see Pearce on Statutory Interpretation, page 13).” ((Italics is for emphasis).
In addition to or to supplement the above, there are other rules on statutory interpretation also developed by our superior courts as they relate to the duty of the court. For example where a party to a suit complains that the provision of a statute has been breached against him or the mandatory provision has not been complied with as in the present case, thus making the interpretation of a statutory provision an issue, it then becomes the duty of the courts (whether at the trial or appeal levels) to examine the act or acts complained of (by commission or omission) and compare it (or them) with the relevant statutory provision and resolve appropriately whether there was a breach, non-compliance or substantial compliance with the law in question. A statutory provision cannot therefore be waived but must be considered by the court and given effect to whether cited by the counsel or not – see Attorney General Adamawa State vs. Ware & Ors. (2006) All FWLR (PT 306) 860 at 871 – 872, (2006) 4 NWLR (Pt. 970) 399; Anzaku vs. Governor Nasarawa State (2006) All FWLR (PT 303) 308 at 339; Miscellaneous Offences Tribunal vs. Okoroafor (2001) 18 NWLR (PT 745) 295 at 355; IBWA V. Imano (Nig) Ltd (1988) 3 NWLR (PT 85) 633; Salami vs. Chairman LEDB (1989) 5 NWLR (PT 123) 539; Balogun vs. NCSB (2003) 2 NWLR (PT 804) 389 AT 397; Owena Bank (Nig) Plc vs. NSE Ltd (1997) 8 NWLR (PT 515) 1; Odua Investment Ltd. vs. Talabi (1997) 10 NWLR (PT 523) 1; Okereke VS. NDIC (2003) 2 NWLR (PT 804) 218 at 236; and General Muhammadu Buhari & Anor vs. Alhaji Mohammed Dikko Yusuf & Anor (2003) 6 SCNJ 344; (2003) 14 NWLR (Pt. 841) 446.
Although the main and relevant provisions in the two laws on which an Issue has been made in the present case have been set out verbatim in the two brief filed, it is worth while to repeat or re-state them in this judgment because of their importance to the resolution of the issue under review (i.e. issue 1). Accordingly sections 77, 78 and 277 of the CPA and section 33 of the FHCA provide or can be reproduced as follows:-
Section 77 CPA:
“77 subject to the provisions of any other enactment, criminal proceeding may in accordance with the provision of this Act, be instituted.
(a) in Magistrate Court, on a complaint whether or not on oath; and
(b) in the High Court-
(i) by information of the Attorney – General of the State in accordance with the provision of section 72 of this Act; and
(ii) by information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provision of part 36 of this Act; and
(iii) by information filed in the court after the accused has been committed for trial by a magistrate under the provision of part 36 of this Act; and
(iv) on complaint whether on oath or not.”
Section 277 CPA
“277. The provision of this Part of this Act shall apply to offences triable summarily, that is to say-
(a) to all triais in the High Court other than on information; and
(b) to all trials in the High Court in respect of offences by which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided; and
(c) to all trials in any magistrate court to the extent of the jurisdiction of the magistrate adjudicating; and
(d) for all offence declared by any written law to be triable summarily or on summary conviction or in a summary manner or by a magistrate.”
Section 78 CPA
“78. Where proceedings are instituted in a Magistrate’s Court, they may be instituted in either of the following ways-
(a) upon complaint to the court whether or not on oath, that an offence has been committed by any person whose presence the magistrate has power to compel, and an application to such magistrate, in the manner hereinafter set forth for the issue of either summons directed to, or a warrant of arrest to apprehend such a person; or
(b) by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed and the charge sheet shall be signed by the Police Officer in charge of the case.”
Section 33 of FHCA
“33. (1) Subject to the provisions of this section, criminal proceedings before the court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act, and the provisions of that Act, shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect or all matters falling within the jurisdiction of the court.
(2) Notwithstanding the generality of subsection (1) of this section, all criminal cases or matter before the court shall be tried summarily:”
The above provisions are in my view, very clear simple and unambiguous. They should therefore be given their simple, natural and ordinary meaning. The intention of the legislature in making the provisions is also very clear and easily ascertainable. In the case of the High Court, the intention is for the filing of an information with proof of evidence and the charge intended or sought to be preferred against the accused person so that he will have an advanced notice or knowledge of the case of the prosecution against him. It is also to give the judge before whom the information is filed or who is required to give leave to the prosecution to prefer or file the charge an opportunity to peruse those document and know whether a prima facie offence has been disclosed or made out against the said accused person before granting his leave to the prosecution to file the charges – see Egbe vs. State (1980) NCLR 341; Ikomi vs. State (1986) 3 NWLR (PT 28) 340; Abacha vs. State (2002) 11 NWLR (PT 779) 437; and Ohwovoriole vs. FRN (2003) 2 NWLR (PT. 803) 176 at 194 – 195, 208. Another rationale for the filing of an information and securing the leave of the judge is to ensure that an innocent person is not victimized, framed or persecuted rather than prosecuted before the High Court which is a superior court of record on merely false allegation or act which do not constitute any offence in law. It is very clear from the provision of section 77(a) and (b) of the CPA that the filing of an information or securing the leave of the judge for or before filing charges against an accused person is a procedure applicable only to or in the High Court proceedings. It has no application in the Magistrate Court where under subsection (a) criminal proceedings can be instituted on a complaint whether or not on oath. It is also to be noted that there may be some peculiar circumstances under which criminal proceedings before the High Court itself may be instituted just like in the Magistrate Court on a complaint whether on oath or not in accordance with subparagraph (iv) of section 77(b) i.e. section 77(b)(iv). The distinction in the procedure for institution of criminal proceedings before the Magistrate Court and the High Court under the provision of section 77 is deliberate and is intended by the legislature to make the institution or initiation of proceedings in the former court prompt, simple and less cumbersome.
Section 33 of the FHCA which provides that criminal proceedings before the Federal High Court shall be conducted substantially in accordance with the provisions of the CPA expressly makes the application of the said provision of the CPA or the substantial conduct of criminal proceedings in the Federal High Court subject to the provisions of the section (i.e. section 33 FHCA). Thus the application or invocation of the provision of the CPA in the conduct of criminal proceedings is only possible or permissible subject to or in the absence of any provision therefore in section 33(1) of the FHCA (supra). Therefore where a contrary provision is made in the FHCA different from that in the CPA, as regards the conduct of criminal proceeding, the former shall prevail. This is immediately followed by a provision or an exception in subsection (2) of section 33 FHCA (supra) which provides that notwithstanding the generality of subsection (1) of the section all criminal causes or matters before the court shall be tried summarily. This provision is also deliberately inserted or made in section 33 with the intention by the framers of FHCA to make the criminal proceedings before the Federal High Court more speedy easier and less formal or less cumbersome than those in the State High Court where the CPA is generally applicable. I agree with the learned senior counsel for the appellant that the provisions of section 77 and 340 CPA on the filing of information and securing the leave of the judge to prefer or file charges apply generally to the High Court in all the Southern States except Lagos State where the learned counsel himself agreed that the filing of information before a judge has been abolished by the Criminal Procedure (Amendment) Edict 1987. I am however unable to agree with the learned senior counsel in his assertion that the requirement for leave and the need for the Federal Attorney General to file a criminal information are still prerequisites under the CPA applying to criminal trials before or in the Federal High Court. My stand is based on the express proviso or exception made in subsection (2) of section 33 of the FHCA (supra) which provides in a mandatory term that criminal matters or causes before the court shall be tried summarily. It should also be emphasized that the provisions of section 77 upon which the appellant relies for his above assertion is itself made only applicable subject to the provision of any other enactment. Thus where there is another enactment or law as in the case of the Federal High Court (in its section 33 (2) or of Lagos State (in its Edict No.4 of 1979) the application of section 77 in the Lagos State High Court or the Federal High Court is clearly excluded (as in the instant case). The use of the words “shall be tried summarily” used in subsection (2) of section 33 (2) FHCA also prescribes or enjoins a summary trial of criminal cases before the Federal High Court similar to summary proceedings in the Magistrate Court as provided or in section 277 of the CPA. Clearly from the wording of the later section trials on information are excluded or are different from the concept or conduct of a summary trial. The submission of the appellant counsel to the effect that trials in the Federal High Court should be by way of information is therefore wrong and misconceived. The distinction sought to be drawn in the appellant brief between the manner of initiating criminal trials and how to conduct such trial should also be rejected as a mere rhetoric and academic rather than practical. In my humble view the manner of conducting trials and how they are initiated are interrelated and dependent on the other or cannot be separated. It is the attitude of this court and the Supreme not only to frown at an academic argument and hypothetical analysis as canvassed in the appellant brief on the point but also to disregard such arguments and analysis which are not based on the substance of the case – see Ariori vs. Elemo (1983) 1 SC NLR, Nkwocha vs. Governor of Anambra State (1984) 1 SCNLR 634, Coker vs. Olukoga (1994) 2 NWLR (PT 329) 648; UBN Plc vs. Sepok (Nig) Ltd (1998) 12 NWLR (PT 578) 439 at 480; and Agbo vs. State (2006) All FWLR (PT 309) 1380 at 1412; (2006) 6 NWLR (Pt. 977) 545. I therefore agree with the submission of the respondent’s learned counsel that all the requirement for the filing of complaint or charges in the Magistrate Court or for the institution of a criminal proceeding in Magistrate Court in accordance with Section 78 of CPA have been substantially complied with in the present case. Consequently the case was instituted in a summary manner or by way of a summary trial procedure as recommended in section 33 (2) of FHCA.
The two types of trials “full” and “summary” are provided for in the CPA and they are designed as such under the said Act irrespective of their manner of initiation, institution and conduct. Thus a summary trial is and remains so in both its manner of initiation institution and conduct and is distinct from the full trial (on information) which also has its peculiar characteristics and different pre-requisites in both its manner of initiation, institution and conduct. It will therefore be wrong and contrary to the letter and spirit of the law (i.e. the CPA) to differentiate between the manner of initiating a summary trial and the way it is conducted. Similarly, we cannot differentiate on how a full trial on information can be commenced or initiated from how it will be conducted. Thus a summary trial is or remains as such from its inception to its conduct and conclusion in the same way as a full trial on information also remains with its full characteristics from its inception conduct and conclusion as recommended by the law and it would be a double standard to mix them up or to expect such a full trial to (on information) be commenced or be initiated summarily and be conducted or concluded fully (or as a full trial). In the same manner a summary trial cannot be expected to commence fully and be conducted or concluded summarily. It is very clear from the wording of the provision in subsection (2) of section 33 of the FHCA (supra) that all criminal causes or matter before the Federal High Court shall be tried summarily. The provision does not differentiate between the manner of initiation or the conduct of the said trials. Consequently, the intention is to make summary procedure (with all its ramifications) applicable in criminal trials before the Federal High Court irrespective of their stages contrary to the suggestion of the appellant’s counsel.
In the last arm of his submission the learned Senior Counsel for the appellant refers (in the brief) to the provision of section 33(1) of FHCA which provides that criminal proceedings before the Federal High Court shall be conducted substantially in accordance with the provision of the CPA which should have effect in the said court with necessary modifications to bring it into conformity with the FHCA, and suggested that the provision of section 81 of the CPA which provides the procedure for the filing of a complaint before a Magistrate shall be modified by substituting the word “Magistrate” in the section with the words “judge of the Federal High Court.” With due respect to the learned Senior Counsel I find it difficult to agree with or accept his suggested amendment or modification to the law or statute (i.e. CPA). To do so or to accept the suggestion of the learned counsel which would amount to importing into the said statute words that are not intended by the legislature in order to give it (i.e. the provision) the meaning that will suit purpose of the appellant. The suggested amendment or modification is also contrary to or against the rules of interpretation of statute set out and adumbrated above. In particular, one of those cardinal rules is that the words used in the statute or law alone are to be considered and be given their ordinary and natural meaning without importing other words from other sources or without giving them any special meaning not intended by the legislature – see Ejuetami vs. Olaiya (supra); Miscellaneous Offences Tribunal vs. Okoroafor (supra); and Aqua Ltd vs. Ondo State Sport Council (1988) 4 NWLR (PT 91) 622. It is also not the function of a judge to import into any legislation word that have not been employed by the legislature and which will give a different meaning to the of the law so promulgated by the legislature. The judge must not bring to bear his personal feeling or prejudices as to what the law should be but rather to what it is from the clear wordings used by the legislature – see Fawehinmi vs. IGP (2000) 7 NWLR (PT 665) 481 at 529; and Major and St. Mellons Rural District Council vs. Newport Corporation (1952) A.C. 189 at 199 cited in the respondent brief.
I will consequently not grant the modification to the CPA suggested or requested by the appellant’s learned counsel which I regard as a desperate ploy on the part of the said counsel aimed merely to suit his client purpose or interest. If any modification is to be allowed at all by this court, it should be against the insistence or agitation of the said appellant that all the formalities required for the filing of complaints before the Magistrate under section 59 of CPA including the form (Form No.3) of the criminal complaint used in the Magistrate Court (reproduced in the appellant brief) must be satisfied or complied with by the 1st respondent (the prosecution) in the instant case. It is my humble view that such strict formalities can be modified or even waived in the present case which is before a Federal High Court. Such a modification or waiver is covered by or will be justified under the provision of section 33(1) of FHCA which provides that the provisions of CPA shall have effect subject to or with such modification as may be necessary to bring them into conformity with the provision of the FHCA. Thus in the modification exercise it is the provision of the CPA that should give way to or be modified to be in conformity with those of the FHCA. (supra) in order to give effect to the later law or statute. To do otherwise (as we are requested by the appellant) is contrary to the express provision of the later law (i.e. the FHCA) and therefore illegal.
I agree with the submission in the respondent’s brief on the formalities required for commencement of a summary proceeding in the Magistrate Court under section 78 of the CPA. It is very clear from the provision of the section that the formalities of filing of formal or written complaint, and an application for the Magistrate to issue a summons or warrant to compel the attendance of the accused person or to apprehend him only arise or are applicable where the accused person is already in custody (or in detention), as in instant case, there is no need for any application by the prosecution for the issuance of summons or warrant to compel his attendance. All that is required is for the prosecution to produce or bring him before the court upon a charge contained in a charge sheet in accordance with the provision of section 78(b) of the CPA. There is no also no need to apply for or secure the leave of a Magistrate before the filing of a complaint or a charge (which terms are used synonymously) under the above provision of the CPA (see also section 81 CPA cited and reproduced in the appellant’s brief).
I also uphold the submission in the respondent’s brief which is not controverted by the appellant who did not file a reply brief that the issues or points relating to the failure of the 1st respondent to apply for the issuance of a criminal summons or warrant before the lower court, are a fresh or new issues which were not raised or considered at the lower court.
The trite principle of law that a party cannot raise such fresh or new issues at the appellate court except with leave of the said appellate court as well as the authorities cited by the respondent under the principle are apposite. The fresh issues raised without leave by the appellant cannot or will not be entertained by the appellate court. In the instant case even though I have already, considered the submissions on those issues because the 1st respondent’s objection against them appear at the last lap of their submission under issue 1, they can still be disregarded or discountenanced. Luckily and coincidentally, my above consideration of the fresh issues does not favour the appellant who raised them without the requisite leave at this level.
From my above consideration of issue No.1 of the appellant’s brief (which corresponds with Issue 1 of the 1st respondent) It must be answered in the affirmative and resolved together with its related ground 6 of the appeal) against the said appellant. It is accordingly hereby so resolved. Thus, the criminal proceeding or action instituted or commenced by the 1st respondent in the present case was in substantial compliance with the provision of the CPA and FHCA.
As stated earlier, the 2nd and 3rd issues of the appellant’s brief are interrelated as they are both dealing with the admissibility or otherwise of some documentary exhibit annexed or attached to the affidavit in support of the appellant’s motion for stay of proceedings before the lower court. These documents are Exhibit OD1-OD3 which are copies of the civil suit or actions filed by the appellant in Bayelsa State High Court and the Federal High Court, Abuja challenging his removal or impeachment from office as the Governor of Bayelsa State on the one hand, and Exhibit OD4 which is a copy of the letter from the Appellant’s counsel to the Attorney General of the Federation informing the later of the pending civil suits of the appellant and urging him to stop or halt the criminal proceedings against the said appellant until his civil suits or action are determined by the two courts. It is therefore convenient to deal with the two issues together (i.e. issues 2 and 3) as they are both challenging the decision of the learned trial judge on the admissibility or otherwise of the two set of documentary exhibits which he held to be inadmissible. For the above reason, I will deal with issues 2 and 3 of the appellant together while also considering the relevant reply to the two issues in the 1st respondent’s brief which merges all the remaining 4 (four) issue of the appellant (i.e. issues 2, 3, 4 and 5) into one and argues them together.
Under his issue No 2, the appellant begins his submission by an admission that Exhibit OD1-OD3 are public documents copies of which are required by law to be certified before they can be tendered or admitted in evidence. It is however argued by the appellant that the stage or time at which the objection to the admissibility of the said document (or exhibits) was made in the instant case was premature as it was at a preliminary stage. The learned senior counsel for the appellant relies on two Supreme Court decisions and the decision of this court for this submission. These are Adejumo v. Military Governor of Lagos State (1970) All NLR (PT 1) 183; and Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT 135) 688; and Adebayo vs. FCDA (1998) 6 NWLR (PT 552) 118 at 129-130 in all of which it was held that documents annexed or attached to an affidavit must not be objected to at a preliminary stage but until the substantive action comes up for hearing when all the facts are put before the court. The appellant’s brief also refers to the case of Jadesimi vs. Okotie-Eboh (unreported) Appeal No. CA/L/233/84 relied upon by the learned trial judge on his decision in the present case regarding the admissibility of Exhibit OD1 – OD4 and it is submitted that the later decision of this court (in the unreported case) was arrived at per incuriam as it was made or arrived at without consideration of the earlier Supreme Court decision to the contrary in Adejumos case (supra). Thus in their subsequent decisions both the Supreme Court (in Nwosu vs. Imo State supra) and this court (in Adebayo vs. FCDA (supra) applied the correct principle or approach by holding that an objection against the admissibility of such documentary exhibit annexed to an affidavit cannot be taken or allowed to be taken at a preliminary stage until the substantive action comes up for hearing.
In his submission on Exhibit OD4 under his 3rd issue, the appellant argues that there is no way in which a letter written by a solicitor to the Attorney-General can be treated as a public document under the criteria based in section 109 of the Evidence Act (Cap 112), LFN 1990. In the above submission in the appellant’s brief, the learned senior counsel for the said appellant cites and relies on the definition of a public document given in Aguda on “law of Evidence” (2nd Edition) page 277-278; and No 306 – 308. This court is finally urged under issues 2 and 3 to hold that the trial court was in error in its holding that Exhibit D1-D4 (particularly Exhibit 4) are public documents and the objection against their admissibility was not premature.
The 1st respondent’s reply to the above submissions of the appellant on issues 2 and 3 is contained in pages 15 – 24 of the respondent’s brief. In a brief nutshell, the 1st respondent’s submission under issue 2 which begins by emphasis on the appellant admission on the inadmissibility of Exhibit OD1-OD3 under the Evidence Act (supra) describes the appellant’s submission under the Issue as contradictory as it is in the form of approbating and reprobating. Thus by admitting that the documents which were required to be certified before being admissible and were not so certified, it was a contradiction and wrong for the appellant’s counsel to insist that the trial judge or court should have admitted or placed reliance on those inadmissible documents. It is also argued by the 1st respondent that objection to admissibility of documents can be properly taken in appropriate cases or stages of the suit. Thus once the court’s attention is alerted on the admissibility of the document in a proceeding conducted by affidavit evidence as in the instant case, the court should consider and rule on their admissibility or other wise under section 97 (2) (c) of the Evidence Act (supra) – see Fawehinmi vs. IGP (2000) 7 NWLR CPT 665) 481 at 525 cited in the brief in support of the pre position. The cases cited and relied upon by the appellants are said to be inapplicable in the present case as they are not on all fours and the point canvassed thereat are different from those now being canvassed by the appellant’s counsel. The principle in the two cases of Adejumo vs. Governor of Lagos State (supra) and Nwosu vs. Imo State Environmental Sanitation Authority (supra) is said to be only applicable where there is a substantive suit and interlocutory application and the objection is taken or raised on a mere technical ground. Where on the other hand the objection relates to a mandatory provision of the law of evidence as in the instant case, and the document on their face value violate the requirement of the law, the court can be alerted and will properly refuse to look at or rely on the document. It is also submitted by the 1st respondent that in the above authorities (supra) the court allowed an objection to be raised against the admission of document where all the facts are put before the court.
As regards to Exhibit OD4 the 1st respondent submits that the said exhibit was rightly held by the learned trial judge to be a public document under section 109 (b) of the Evidence Act (supra). It is said to come under or be covered by the subsection as “a public record kept in Nigeria of private documents.” It is said that the original of the letter in Exhibit OD4 is kept as a public document in the Attorney General’s Office and only a copy of it is in the possession of the appellant and has to be certified in order to be admissible under section 97(2) (c) of the Act (supra) – see Fawehinmi vs. IGP (supra) cited in support of the above submission. The 1st respondent brief finally urges this court to uphold the finding of the lower court on Exhibit OD4 as a public document that has not been certified under the principle laid down in Aduku vs Adejoh (1994) 5 NWLR (PT 346) 582 at 597 cited in support of the 1st respondent’s final submission. In my consideration of the above submissions from the two briefs under issues 2 and 3 (together), my starting point should be on the admission of the learned counsel for the appellant that Exhibits OD1 -OD3 are public document which are required, under the law, to be certified before they can be tendered or admitted in evidence. This admission and the fact that the appellant has not filed any reply brief to contradict or answer the submission of the 1st respondent that Exhibit OD4 is also qualified as a public document under section 109 (b) (reproduced in the appellant’s brief) show that the said appellant has no reply to proffer against the 1st respondent’s submission on the true nature of Exhibit OD4. Consequently I will treat or regard all the Exhibits (i.e. OD1 – OD4) as public document which have been conceded by both parties as requiring certification before they can be tendered or admitted as Exhibit in cases where affidavit evidence is used. This is in line with the provision of section 97. It is to be noted that the documentary exhibits (Exhibits OD1 – OD4) in the present case were copies of the proceedings in the two courts where the civil cases filed by the appellant are pending as well as a copy of the letter his counsel had sent to the Federal Attorney-General. Thus the documents exhibited in the supporting affidavit to the appellant’s application at the lower court were secondary as opposed to primary documentary evidence (see the definition of the two terms under section 95 of the Evidence Act (supra). The Act allows such secondary evidence of document to be given only in certain circumstance as enumerated under section 97 (1) (a) – (g) of the Act. A further classification of documentary exhibit (5) provided in the Act (supra) which also affects their admissibility filed which is the bone of contention in the present case is between public and private documents. The Act defines only public document in section 109 leaving all other document which are not in the category of public documents as (or to be) private document under section 110 of the Act. Exhibits OD1 – OD3 are conceded to be covered by or to come under section 109 (a) (iii) as public document as they are acts or records of acts of a public officer, whether legislative, judicial and executive and whether of Nigeria or elsewhere. In the case of Exhibit OD4 in the instant case even if it is not regarded as coming under the above provision, it is in my view covered under subsection (b) of section 109 as a public record kept in Nigeria of a private document. I therefore agree with and accept the submission of the 1st respondent counsel to that effect. It is only certified true copy (CTC) of a public document properly issued by a public office that is admissible in evidence under section 111 of the Act. There is no provision in the Act making ordinary photocopies or copies of public document without certification as admissible – see Aina vs. Jinadu (1992) 4 NWLR (PT 233) 91, Jules vs. Ajani (1980) 5 -7 SC 96; Ojo vs. Adejobbi (1978) 3 SC 65; Cardoso vs. St. Mathew Daniel (1966) 1 All NLR 25; Raymond Iheonu & Anor vs. Simon Obiukwu (1994) 1 NWLR (PT 322) 594; and Esso West Africa Incorp vs. Alli (1968) NMLR 414; International Merchant Bank (Nig) Ltd. vs. N. Abiodun Dabiri & 2 Ors. (1998) 1 NWLR (PT 533) 284 at 298. Even in the case of Jadesinmi vs. Okotie-Eboh (1986) 1 SC 479; (1985) 2 NWLR (PT 10) 909 cited by the appellant counsel which has gone on appeal to the Supreme Court it was held that photocopies of the writ of summon, attached to a process or an affidavit which were not certified were not admissible in evidence. see also Afe Babalola on “Law & Practice of Evidence in Nigeria” pages 209 – 214.
In the present case the heavy whether being made or raised by the appellant’s counsel is not on the admissibility or otherwise of the documentary exhibit (in Exhibit OD1 – OD4) but rather on the flimsy reason or ground as to the stage at which the objection as their admissibility may be raised. With due respect to the learned SAN he appears to have left the substance and he is merely pursuing the shadow of the crucial point of the objection raised by the 1st respondent which is on the admissibility of the uncertified public documents which he has conceded are in law inadmissible. How then will he expect the learned trial judge to close his eye or overrule the objection of the 1st respondent which is on a solid legal ground or point? I therefore regard the appellant’s argument or submissions under the issue as also technical and merely academic in nature. Consequently I agree with the 1st respondent that the cases of Adejumo & -Anor vs. Governor of Lagos State (1970) All NLR (pt. 1) 183 as well as the two other cases of Nwosu vs. Imo State Environmental Sanitation mental Sanitation Authority (1990) 2 NWLR (PT 135) 688 at 735; and Adebayo vs. FCDA (1998) 6 NWLR (PT 552) 118 at 130 – 131 cited and relied upon by the appellant in his lame submission under the issues cannot help or avail the said appellant as the 1st respondent’s objection was raised at an appropriate time or stage during the substantive hearing of the appellant’s motion for striking out the charges against him or staying the criminal proceedings before the trial court. Thus all the facts relating to the two prayers in the appellant’s motion had been put before the trial court and it would have granted either of the appellant two prayers but for the 1st respondent’s objection. There was no better or more appropriate time or stage for the 1st respondent to raise its objection before the charges are likely to be struck out thereby terminating the criminal prosecution of the appellant or the criminal proceeding before the lower court be suspended for a considerably long period.
It is to be emphasized here that there is a difference between criminal and civil proceeding in relation to an application for their stay pending appeal. While in the case of civil proceeding nobody is being seriously jeopardized or, incarcerated or having his liberty curtailed, the same cannot be said in a criminal proceeding.
Consequently there is a conventional need to have a quick and speedy trial in the later proceeding as dictated by public policy. It is therefore a pity and unusual to observe that in the present case instead of the prosecution to cause delay in the criminal proceeding which some time may attract some chastising remarks or threat to discharge an accused person by the trial judge, it is rather the accused person himself (i.e. the appellant) who embarks on delaying tactics and is capitalizing on technical rather than substantial grounds to delay and stall the criminal proceeding against him at the trial court. This is despite the fact that the said appellant is still under detention and in custody of the security operatives uptil this time. Since in criminal trial or proceeding as in the instant case the courts are guided by public policy and the need for a speedy trial and fair hearing within a reasonable time as enjoined in section 36 (4) of the Constitution of the Federal Republic of Nigeria, 1999 it is the duty of all parties (including the appellant) and the court to ensure that justice and the proceeding are not unnecessarily delayed in the present case – see Odo vs. COP (2004) 8 NWLR (PT 874) 46; Solomon Ogbo & Anor vs. The Federal Republic of Nigeria (2002) 4 SCNJ 199 (2002) 10 NWLR (Pt. 774) 21; and Sokoto State Government vs. Kamdax (Nigeria) Ltd (2004) 9 NWLR (PT 878) 345. The provisions made in the Evidence Act (supra) on the admissibility of documentary evidence (which cover section 91 – 113 of the Act are primarily meant to apply only in civil proceeding rather than in criminal proceedings. This is because of the phrase used at the beginning of section 91(1) or (2) to wit “in any civil proceeding”. It is my humble view that by the above phrase the issue raised in the appellant’s brief that an objection against the admissibility of documentary exhibits or document annexed to an affidavit cannot be raised at an interlocutory stage or cannot be taken until when the substantive matter comes up for hearing is only applicable in civil cases and not in criminal cases. This is why all the authorities cited and relied upon by the appellant’s counsel where the Supreme Court and this court made the holding or stated the principle canvassed by the said counsel are civil as opposed to criminal cases. Thus the authorities of Nwosu vs. Imo State Environmental Sanitation Authority (supra); Adejumo vs FCDA (supra) are only applicable to or in civil cases and they are not relevant or applicable in the present case which is a criminal case. The submission as well the authorities cited by the appellant in support thereof are consequently inapposite and misconceived. I have already stated the golden rules of interpretation of statutory provision one of which is that in its function or duty of interpretation of such provisions, the court must confine itself to the express wording of the statute and should not go outside it in order to find or give it a different meaning. Another corollary rule is that it is not the function or duty of the court to amend the legislation in question merely to achieve a particular object or result as the appellant’s learned counsel is seeking or attempting to do in the present case. In other words, the courts merely interpret and apply the express words or language used by the legislature (to ascertain the later intention) and have no power to make or amend the law – see Fawehinmi v. IGP (2000) 7 NWLR (Pt.665) 481 at 529 cited in the respondent’s brief. Where there is an express provision of a statute, as in the instant case the courts (including the apex court) cannot make or give a decision to the contrary. To do so will be against the law and the court will be seen as derogating from its traditional function of interpretation of the law and will encroach into the arena of the legislature by making or amending the said law. The position of the law in view of my above discourse is or should be that in criminal cases, all the technicalities on the admissibility of documents arising from the provision of the Evidence Act (supra) which are only relevant to civil proceedings may be shunned or disregarded by the court in a criminal trial and the main consideration will be to achieve the interest of justice in the case or avoid or miscarriage of it.
In the present case the interest of justice requires that the documents attached to the supporting affidavit which were not certified and which the appellant counsel has himself admitted as requiring such certification under the law should not be allowed to be used to defeat the criminal proceeding instituted against the appellant at the trial lower court or to stay or stall the said proceedings for an indefinite time. To allow this to happen will not be in the interest of justice as it will terminate the proceeding in lamine or cause it an unnecessary long delay.
On the above consideration of the 2nd and 3rd issues of the appellant brief which correspond with some parts of or heading of the 1st respondent’s 2nd issue, the said issues, and their related grounds of appeal (ground 1, 2, 4 and 5) must also be answered in the affirmative and resolved against the appellant.
Under Issue No.4 of the appellant’s brief, the gravamen of the appellant submissions is hinged on the contention that having struck out or having discountenanced the exhibits attached to the affidavit in support of the appellant’s motion the learned trial Judge should have gone ahead or further to consider the facts as deposed to in the said affidavit which are said to be sufficient to entitle the said appellant to the grant of the reliefs sought for in the application. The appellant relies on his above submission on the similar approach by the Supreme Court and this court in Nwosu vs. Imo State Environmental Sanitation Authority (supra) and Jadesimi vs. Okotie-Eboh unreported (supra). The relevant part of the later case is extensively quoted in the appellant’s brief to show that after rejecting the exhibit attached to the affidavit in support this court proceeded to consider the other facts relevant or in support of the grant of the relief sought for in that case. It is pointed out that the 1st respondent in the present case did not file any counter-affidavit to counter or contradict the facts deposed to in the supporting affidavit which we are urged to regard as unchallenged and uncontradicted and therefore to hold that the learned trial judge was wrong in not considering or acting on the said averment in his refusal to grant the appellant application. The relevant averments in support of the appellant’s application before the lower court are said to be contained in paragraphs (3), (4), (5), (6), (8) and (9) which have been quoted or reproduced in the brief. The 1st respondent’s reply to the above submissions under issue No 4 are contained in pages 23 – 24 of its brief. It is conceded that the 1st respondent did not file any counter-affidavit at the lower court to challenge or contradict the appellant’s supporting affidavit but based its objection solely on point of law. Despite its non-filing of a counter-affidavit, the 1st respondent submit that it is not in every situation that the absence of a counter-affidavit will amount to an admission. Also the fact that none of the paragraphs in the supporting affidavit was stuck out by the learned trial judge does not automatically mean that his prayers should be granted – see Ejefor vs. Okeke (2000) 7 NWLR (PT 665) 363 at 381; and Arunlola vs. Adeoye (1995) 6 NWLR (PT 401) 338 at 353 cited in support of the above preposition where this court (Enugu and Ibadan Divisions) decided in line with the 1st respondent’s above submission. It is stated in the brief that the 1st respondent did not file a counter-affidavit because it was unnecessary for it to do so as the averment in the supporting affidavit were self contradictory and even if accepted as true they are not sufficient to sustain the appellant’s prayers at the lower court. The 1st respondent finally urges this court to hold so.
After my due consideration of the above submissions on issue No 4 and my perusal of the relevant parts of the ruling of the learned trial judge (at pages 93-94 of the record of appeal), I am of the humble view that under the general rule on affidavit evidence, an unchallenged and uncontradicted fact or averment is deemed admitted and the court should rely or act upon it. I therefore agree with the appellant’s submission that the failure of the 1st respondent to file a counter affidavit to challenge or contradict the factual averment is an admission of the facts as deposed to or averred in the said supporting affidavit – see Agu vs. NICON Insurance Plc. (2000) 11 NWLR (PT 677) 187; Uko vs. Ukpai (1998) 9 NWLR (PT 567) 705 at 707; Leadway Assurance Co Limited vs. Zeco Nigeria Limited (2004) 4 SCNJ 1, (2004) 11 NWLR (Pt. 884) 316; Nigerian Navy vs. Garrick (2006) 4 NWLR (PT 969) 69 at 112; and Ezeja vs.State (2005) 6 NWLR (Pt. 921) 235: (2006) All FWLR (Pt.309) 1535 at 1563 and Agbo vs. State (2006) All FWLR (PT 309) 1380 at 1400; (2006) 6 NWLR (Pt. 977) 545. I am however of the view that despite the 1st respondent admission of the facts deposed to in the supporting affidavit, it is a settled principle of law that before a court can rely and act upon those uncontroverted or unchallenged facts so deemed admitted, it has to consider them and ensure that they are credible. The Supreme Court and this court have held in a plethora of recent decisions that such an unchallenged and uncontroverted evidence is inconsequential when it is hallow, empty or bereft of any substance or sinfully or corruptly false, incredible, improbable or fall short of the required standard as no court or tribunal will act on it. In such a situation, the court can overlook or ignore or discountenance the unchallenged averment because they are not credible or not sufficient to sustain the relief sought by the plaintiff or applicant – see Neka BBB Manufacturing Co. Ltd. vs. African Continental Bank Ltd. (2004) 1 SCNJ 193, (2004) 2 NWLR (Pt. 858) 521; Provost, Lagos State College of Education & Ors. vs. Dr. Kolawole Edun & Ors (2004) 2 SCNJ 156, (2004) 6 NWLR (Pt. 870) 476; Adelakun vs. Oruku (2006) 11 NWLR (Pt. 992) 625 (2006) All FWLR (PT 308) 1360 AT 1372, (2006) 11 NWLR (Pt. 992) 625; Nsirim vs. Omuna Const. Co. Ltd.(1994) 1 NWLR (PT 318) 1 at 23; O. Arabambi & Anor vs. Advance Beverages Industries Limited (2005) 12 SCNJ 331 at 359; Unity Life and Fire Insurance Co. Ltd. vs. International Bank of West Africa Ltd (2001) 7 NWLR (PT 713) 610, and Imana vs. Robinson (1979) 3 – 4 SC 1; (1979) 12 NSCC 1 at p. 5.
The immediate question that comes to mind from the above principle is whether the fact deposed to in the supporting affidavit of the appellant in the present case are credible and sufficient to sustain the reliefs he claimed at the lower court. In this regard it is worthwhile to reproduce the 6(six) paragraphs relied upon by the said appellant in establishing his reliefs at the trial court (see page 21 of the appellant’s brief). These are paragraphs 3, 4, 5, 6, 8 and 9 and they read as follows:-
“(3) That I am informed by the 1st Accused that he was the Executive Governor of the Bayelsa State Government until he was unconstitutionally removed as Governor.
(4) That the 1st Accused is challenging his removal as Governor and has filed two actions challenging his removal. Now shown to me and marked as Exhibit OD1 and OD2 are copies of the actions filed on behalf of the 1st Accused by Professor A.B. Kasunmu (SAN).
(5) That I am informed by Professor A.B. Kusunmu (SAN) that with respect of the suit filed in the Federal High Court, Abuja he has misplaced the filed copy of the originating summons but pending applications filed after the said originating summons are attached herewith and marked as Exhibit OD3.
(6) That I am informed by the 1st Accused that he is entitled to immunity from arrest and prosecution by virtue of his being Executive Governor of the State.
(8) That unless proceeding are stayed to await the trial of the cases pending before the courts in Abuja and Yenogoa, the 1st Accused would have been (sic) prejudiced by being forced or compelled to go through trial in this case.
(9) That I am informed by Prof. A.B. Kasunmu (SAN) and I verily believe him that the prosecution has not complied with the mandatory provisions for the commencement of criminal proceeding before the Federal High Court, Lagos.”
In considering the credibility and sustainability of otherwise of the above averments, I will consider them individually. Accordingly the 1st averment in paragraph 3 which asserts that the appellant was the ex-Governor of Bayelsa State also States that he was removed as the Governor of that State. No any reason or detail is given for his removal except the ipse dixit of his counsel that the removal was unconstitutional. Clearly the averment in paragraph 3 apart from being self-contradictory as rightly held by the learned trial judge (in his judgment at page 93 of the record) it is also self-assuming and has no relevance to the appellant’s reliefs for striking out the charges or for stay of proceedings. The next two paragraphs (of the above quoted averments (i.e. paragraphs 4 and 5) are hinged or based on Exhibit OD1 – OD3 which have been discountenanced or struck out by the learned trial judge for being uncertified and inadmissible. Consequently, they do not have any effect or evidential value to support or sustain the appellant’s reliefs as aforesaid. Paragraph 6 of the above averments is predicated on paragraph 1 which has been found to be self-contradictory and self-assuming. In other words, the Immunity relied upon under paragraph 3 only applies to the 1st Accused (appellant) for his being and remaining to be the executive Governor of Bayelsa State. But since the appellant has been removed from the governorship (as per his paragraph 3) he cannot claim or rely on the immunity as he seeks to do under paragraph 6. The averment in the later paragraph is therefore incredible and unreliable and a deliberate distortion of the true position or fact. It is also bereft of any substance and a falsehood based on the personal view or ipsit dixit of the appellant. I will defer my comment on paragraph 8 above which states that the appellant will be prejudiced if the criminal proceeding against him are not stayed. This is because it is the subject-matter of the next issue of the appellant yet to be considered (i.e. issue NO.5). The last paragraph of the above reproduced deposition (paragraph 9) has been dealt with by me in my treatment of the 1st issue where the fallacy and incredibility of the averment (also based on the personal view of the appellant counsel) are clearly shown.
From my above analysis of all the paragraphs or averments relied upon by the appellant in support of his motion before the lower court it becomes very clear that they are incredible, devoid of any substance, hallow and falling short of the required standard as no court or tribunal can act or rely on them in granting the reliefs sought. The averments are also not sufficient to sustain or support the reliefs sought by the appellant before the trial court. Consequently, I am inclined to agree with and accept the submission in the 1st respondent brief that the learned trial judge was right in his refusal to countenance the said averment or paragraphs (which he ignored) in his consideration of the appellant application for stay of proceeding. In other words with his rejection of Exhibits OD1-OD4 and with the remaining paragraphs in the supporting affidavit which have been found to be hallow and shallow and insufficient to sustain the reliefs claimed by the appellant the learned trial judge had no other credible evidence or materials adduced or furnished by the appellant to sustain his application. Issue No.4 of the appellant together with its related ground of appeal (ground 3) must consequently also be answered in the positive and resolved against the said appellant. It is hereby so resolved.
Under his last issue (Issue No.5), the appellant stated that the criminal proceeding against him in the present case was filed after his removal or Impeachment from the Gubernatorial Office of the Bayelsa State. He could not have been prosecuted before then because of the constitutional immunity he enjoyed under section 308 of the 1999 constitution. It is conceded by the appellant that the immunity is or can only be enjoyed during the period he remains as the Governor. It is however pointed out in the appellant’s brief that his impeachment from the office of the Governor of Bayelsa State and the consequences that followed are the basis of the civil action he filed at both the Federal High Court, Abuja and the High Court of Bayelsa State. After filing the charges in the instant criminal proceeding against him the prosector/1st respondent was duly informed or notified (by Exhibit 4) of the civil action in Abuja and a pending motion for interlocutory injunction “to restrain him from initiating a criminal proceedings (sic).” The appellant’s brief cites and relies on the authority of The Governor of Lagos State vs. Ojukwu (1986) 1 NWLR (PT. 18) 621 and submits that under the principle of the case and the above circumstance of the present case, the criminal charges in the present case ought not to have been filed until the determination of the pending motion or application for injunction before the Federal High Court Abuja. The learned senior counsel for the appellant then made the following statement in the brief:
“No matter how frivolous and unmeritorious that application might be the prosecutor should not have gone ahead to file criminal charges in court. On that ground alone the trial judge should either have struck out the charge or at least stayed proceedings.” The case of Akilu vs. Fawehinmi (supra) is again cited and relied upon on the above submission. It is also submitted by the appellant that there is nowhere in the ruling of the learned trial judge where he held or found that the 1st accused/appellant would not be prejudiced. It is finally submitted in the appellant’s brief under issue No.5 that since the only reason given by the trial court for the refusal to grant the appellant’s application is based on the inadmissibility of the exhibits annexed or attached to the affidavit, this court is asked or urged to order the stay of proceeding on it’s finding in favour of the appellant on any of the issues earlier canvassed (i.e. issues 1 – 4) and that if issue 1 is decided in the appellant’s favour, the entire action (or the charge against him) should be struck out.
The 1st respondent’s reply to the above submission of the appellant under the 5th issue can be found under the last heading of its brief covering pages 25-27 thereat. A question is posed in the brief as to whether the mere fact that a civil suit or action is pending in the court is enough to sustain the prayer for stay of proceeding in a criminal case? In answer to the above poser, the learned counsel for the 1st respondent pointed out that the poser which seems to be based or the rule in Smith vs. Selwyn (1914) 3 KB 98 is in fact the reverse of the said rule. In any case it is submitted in the brief that the rule in Smith vs. Selwyn (supra) has been held to be no longer applicable in Nigeria- see Veritas Ins. Co. Ltd vs. Citi Trust. Inv. Ltd. (1993) 3 NWLR (PT 281) 349 at 364 – 365, A. G. Fed vs. Dawodu (1995) 2 NWLR (PT 380) 712 at 723; and James vs. IGP (2005) All FWLR (PT 274) 313 at 335 cited in the brief in support of the above preposition. It is submitted that with the abolition or abrogation of the rule in Smith vs Selwyn the position now in Nigeria is that both the criminal and civil proceedings arising from the same transaction can go on or proceed simultaneously. The authority of Akilu vs. Fawehimni (No.2) (supra) cited and relied upon by the appellant is also reviewed in the 1st respondent’s brief with the conclusion that the case or authority is not applicable to the present case where the suit purportedly instituted by the appellant against his removal from governorship are civil in their nature while the action in the present proceeding which the appellant sought to be stayed is a criminal action. It is pointed out that the parties in the two set of actions are also different. Thus under the criteria set out in Akilu’s case (supra) the two set of proceeding do not amount to a duplication that can necessitate a stay of one set pending the determination of the other. It is also further distinguished in the brief that the criminal proceeding in the present case involves money laundering offences while the purported pending suits relates to the removal or impeachment of the appellant from governorship of Bayelsa State and his arrest and alleged extradition. These are said to be completely different in nature and have nothing in common to the criminal charges in the present case. Finally, the 1st respondent’s brief urges this court not to stay the criminal proceedings pending at the lower court against the appellant.
Issue No 5 as set out above relates to ground 7 and is the only issue dealing with the appellant’s prayer for stay of proceeding at the lower court which was refused by the learned trial judge. All the other four (4) preceding issue are related to his other prayers for striking out the criminal action or charges filed against the said appellant. I have duly considered the submissions in the two briefs under the issue. While I agree with the introductory remark at the beginning of the appellant’s submission wherein it is conceded that the criminal proceeding against the appellant can only be filed or instituted after his removal or impeachment from governorship of Bayelsa State because of the constitutional immunity under section 308 of the 1999 Constitution enjoyed by him and other person occupying the office of a State Governor, I am however to emphasize that the immunity can only be enjoyed by the appellant during the period he is or remains a State Governor under section 308 of the 1999 Constitution. Thus the immunity is only enjoyable by the person holding or occupying the office and terminates or ceases when the person ceases to hold the office of a State Governor. During the incumbency of the governor as the beneficiary of the constitutional immunity, he cannot even waive it as it is inchoate to his incumbency in office. When faced with the interpretation or the constitutional provision in section 308, this court pronounced in line with the above position or statement which has been admitted or conceded in the appellant’s brief in Tinubu vs. IMB Securities Ltd (2001) 16 NWLR (PT 740) 670; and Chief DSP Alamieseigha vs. Chief Saturday Teiwa & 3 others (unrep) Judgment of this court in CA/A/51/m/2000 delivered on 12/7/01. In the later case which incidentally involved the present appellant this court (Abuja Division) held at page 10 of the judgment (per Oduyemi JCA) as follows:
“It is also trite that immunity need not be expressly claimed; that it existence rendered the exercise of jurisdiction null and void – R VS Madan (1961) 2 Q.B.
However in the sense that the immunity terminates when the person who enjoys the immunity ceases to hold the office by which he enjoyed immunity the constitutional provision concerned could be classified as procedural making the immunity merely, inchoate or in suspense during the beneficiary’s incumbencys in the office – Empson vs. Smith (1966) 1 QB 426.”
The above pronouncement applies to the appellant in the present case and since it is a common ground that he had ceased to be the Governor of Bayelsa State at the time when the criminal proceedings were instituted or filed against him the immunity under section 308 will not avail him and the criminal charges filed against him at the lower court cannot be terminated or stayed.
As regard the letter in Exhibit 004 which the appellant counsel wrote to the 1st respondent, I agree with the appellant submission that the principle in the Governor of Lagos State vs. Ojukwu (supra) and Akilu vs. Fawehinmi (supra) will ordinarily apply to the 1st respondent where he has the notice of a pending matter in the court and he goes ahead to take action to frustrate or render nugatory the outcome of the pending action.
However on the facts of the present case as disclosed in the affidavit in support of the appellant’s motion before the lower court, there is nothing to show that the 1st respondent was actually served with the letter in exhibit 004 before the commencement of the criminal proceeding at the lower court. The said letter is dated on 14/12/05 while the charges against the appellant were filed on 19/12/05. There is no indication of when the 1st respondent was served with the said letter and in the supporting affidavit, it is merely stated in paragraph 6 thereof that:-
“(6) That Professor A. B. Kasunmu, SAN, of counsel to the 1st accused, upon filing the said suit at the Federal High
Court, Abuja (exhibit OD1) did promptly send advanced copies of the processes thereto to the Honourable
Attoney-General of the Federation so as to put him on notice. Attached hereto and marked exhibit 004 is a copy of the covering letter with which the said processes were so forwarded.”
The above averment does not state the actual date or time when the letter was served on the Hon. Attorney-General or when he became aware of it. There is no endorsement whatsoever on the letter in exhibit OD4 to show that it was received by or on behalf of the recipient. Moreover the fact of the present case are different from those in Governor of Lagos State v. Ojukwu (supra) in that the Attorney-General was not a party to the civil suit said to be filed by the appellant at the Federal High Court, Abuja and the High Court of Bayelsa State (i.e. exhibits OD1 & OD2). He cannot therefore flout any order or frustrate the civil action in the said court the proceeding of which were separate and district from the criminal proceedings in the present case.
It is trite that the power of Attorney-General under Section 191 of the Constitution to institute and undertake criminal proceeding or to discontinue with it at any stage is only subject to his own conscience and good faith and in its exercise, he is required to have regard to the public interest, the interest of justice and the need to prevent an abuse of justice. Thus the Attorney-General is not under any control whatsoever judicial or otherwise in the exercise of his function or power except the risk of loosing his job if he offends his political master (i.e. the Governor or the President) – see State v. Ilori (1983) 2 SC 155; Akilu v. Fawehinmi (1989) 3 NWLR (Pt.112) 685 at 702; State v. Obasi (1998) 9 NWLR (Pt.567) 686 at 691 – 692; Edet v. The State (1988) 4 NWLR (Pt. 91) 722, (1988) 12 SCNJ (Pt.1) 79; Anyebe v. The State (1986) 1 SC 87. (1986) 5 NWLR (Pt. 42) 530; and A.-G., Kaduna State V. Hassan (1985) 2 NWLR (Pt. 8) 483.
Instead of the appellant’s learned counsel to convince this court by stating in his brief tangible reasons or principles for the grant of stay of proceedings under the issue he made a very unimpressive statement which I reproduced or quoted above when setting out his submission under the issue. I was very amazed and dumb founded by that outrageous statement coming from a very senior member of the legal profession to the effect that no matter how frivolous or unmeritorious the appellant’s application might be the prosecutor should not have filed the criminal charges against him in court. I have already stated the factors that are to be taken into consideration by the Attorney-General in discharging his function or power in the institution, control and undertaking of criminal proceeding before the court which include his regard to the public interest, the interest of justice and the need to prevent an abuse of justice. I will add another factor or consideration by adopting the language of the Supreme Court in Latifu Gbadamosi v. The Queen (1959) 4 FSC 181 at 183 wherein it is stated as follows:-
“It does great disservice to the administration of justice, and to public respect for the law, when a guilty person
escapes justice for a reason such as this ….”
Thus in the A-G’s power to institute or terminate a criminal proceeding against any person charged with an offence as in the instant case, he must have regard to the public respect for the law and ensure that an accused person or a person suspected on strong grounds of committing an offence should not be allowed to escape justice on merely technical grounds. Consequently, in the instant case a merely informal letter (exhibit OD4) from the counsel to an accused person is not enough to be relied upon by the trial court or by the Attorney-General (1st respondent) and to stay or suspend the criminal proceedings against the appellant. The description by the appellant’s counsel to their application at the lower court in the above quoted statement (i.e. frivolous and unmeritorious) is self defeating and is stating the truth and obvious nature of his application at the lower court. The question posed by the appellant’s counsel as emanating from the Supreme Court in Akilu v. Fawehinmi (supra) namely whether there is a real danger of causing injustice to the appellant should therefore be answered in the negative. Thus there is no any danger of causing injustice to the said appellant merely by the refusal of the learned trial Judge to stay the criminal proceeding against him.
I agree with and accept the respondent’s submission on the abrogation of the archaic rule in Smith v. Selwyn (1914) 3 KB 98 or its inapplicability in Nigeria for its being a “clog in or to the wheel of administration of justice” – see Veritas Insurance Co. Ltd. v. City Trust Investment Ltd. (supra); James v. IGP (supra) and A.-G., Fed v. Dawodu (supra) cited in the 1st respondent’s brief. I will however add that even if the rule in question (supra) is applicable in Nigeria, it will not avail the appellant because by his present application, for stay of proceeding he is asking for the reverse of the rule. In other words words while under the rule it is the civil right of the citizen that should be stayed until the hearing and determination of the criminal proceeding arising from the same transaction the appellant in his present application is asking for the reverse situation which is in apparent conflict with the principle in the rule (supra). I therefore accept the 1st respondent’s submission on the new trend under which both the civil and criminal proceedings arising from the same transaction can go on side by side or simultaneously.
In the last lap of the appellant’s submission under issue NO.5 it is stated that the only reason given by the learned trial Judge for refusing the appellant’s application before him is based on the inadmissibility of the exhibits annexed to the affidavit in support of the application. The appellant on or for that reason urges this court to order a stay of proceedings upon it’s finding in his favour under any of his preceeding issues (i.e. issues 1-4). It is also argued that
should this court find in favour of the said appellant under his first issue (i.e. issue No.1) the entire criminal action or the criminal charges filed against him at the trial court should be struck out. It is my humble view that this final submission of the appellant is very shallow, weak and is based on his own helplessness and inability to proffer tangible reasons or legal grounds in support of his 5th and last issue for determination which is on the necessity or otherwise of an order for stay of proceeding in the instant case. It is also speculative. Unfortunately for the said appellant all the proceeding issues mentioned and relied upon by him in his above submission have been resolved against him and none has been decided or found in his favour. Consequently, his request for the order of stay or for
striking out the criminal action or charges cannot be granted. In view of my above consideration of issue No.5 of the appellant, the said issue should be answered in the negative and also be resolved against the said appellant.
On my overall resolution of all the five (5) issues of the appellant against him, his appeal must fail and be dismissed. The appellant appeal is a delaying tactic aimed at causing delay or frustrating the criminal action or charges filed against the said appellant at the lower court. Consequently, I find the appellant’s appeal as frivolous and
unmeritorious which I hereby dismiss. I affirm the ruling of the trial court dated 23/12/05 dismissing the appellant’s motion and the notice of preliminary objection. The criminal action and the charges or proceeding against the appellant and others which are pending before the lower court should go on or proceed promptly so that no further
delay will be caused or occasioned again by either party.
CLARA BATA OGUNBIYI, J.C.A.: Briefly, the back ground facts to the motion giving rise to this appeal emanated as a result of the complainant/1st respondent having filed charges against the 1st accused/appellant, (herein referred to as the appellant), and seven other corporate bodies to with the 2nd to 8th accused respondents at the Federal High Court on the 19th December, 2005. The said charges were filed following the impeachment and removal of the appellant as the Executive Governor of Bayelsa State on the 9th December, 2005 by the said same States House of Assembly. Following the appellant’s impeachment, therefore, he was subsequently arrested and criminal charge for money laundering and failure to declare or disclose asset under section 14(i) of the money Laundering (prohibition) Act and section 27(3) (c) and (d) of the Economic and Financial Crime Commission Act 2004 were relied on the 19th day of December, 2005.
The charge along with the proof of evidences were served on the appellant on the 19th day of December, 2005.
Also sequel upon the removal of the appellant as aforesaid he did file a motion on notice at the lower court on the 21st and dated 20th December, 2005.
The motion prayed for alternative prayers as follows:-
“(1) An order of this Honourable court staying proceedings of this trial pending the hearing and determination of the actions filed by the 1st Accused in the following suits namely:
(a) Suit No. FHC/ABJ/CS/622/2005 – His Excellency Chief Dr. D.S.P. Alamieyeseigha vs The Attorney General of the Federation and ors.
(b) Suit No YHC/173/2005 – His Excellency Chief Dr. D.S.P Alamieyeseigha vs Chief Judge of Bayelsa State and ors. Wherein the 1st Accused is challenging the validity and/or constitutionality of his removal as the Governor and Chief Executive of the Bayelsa State Government in the alternative of prayer 1 above
(2) An order of this court declining jurisdiction to hear the case against the 1st Accused until the 1st Accused claims to Immunity from arrest and prosecutions is determined in the two suits listed in prayer 1 above.
In the further alternative to prayers 1 and 2 above,
(3) An order striking out this action for want of compliance with the mandatory provisions of the Criminal Procedure Act LFN 2004 and the Federal High Court Act LFN 2004 regarding the commencement and Institution of Criminal proceedings in the Federal High Court.”
In support of the said motion is an affidavit of 11 paragraphs and to which Exhibits OD1 – OD4 were attached.
From all indications, alternative prayers 1 and 2 are seeking to kill the same bird but with two different stones. They are predicated one upon the other as to what they set out to achieve. The totality of the prayers in effect are two fold:- to stay proceedings in the criminal case pending the hearing and determination of the two cases filed in Abuja and Bayelsa. Also an order striking out the criminal case as not having been properly commenced in accordance with the provisions of the Criminal Procedure Act and the Federal High Court Act. Having regard to the prayers sought for, I am of the humble opinion that alternative prayer 3 should first have been prayed for as favourable exercise in respect thereof would have dispensed or either of prayers 1 and 2. This I say because by the nature of prayer 3, it presupposes the non-existence of any criminal charge against the appellant.
Be that as it may the appeal would be considered in the order set out by the appellant. The crux and gravamen of the application at the lower court is to the effect that the appellant as the applicant seek to challenge his removal as Governor of Bayelsa State. That unless the proceedings are stayed to await the trial of the cases pending before the courts in Abuja and Yenegoa, the appellant would have been prejudiced by being forced or compelled to go through trial in this case. The appellant sought to put his case in paragraphs 3 – 8 and also 10 of the affidavit in support of his application and same reproduced state as follows:-
“3. That I am informed by the 1st Accused that he was the Executive Governor of the Bayelsa State Government until he was unconstitutionally removed as Governor.
4. That the 1st Accused is challenging his removal as Governor and has filed two actions challenging his removal. Now shown to me and marked as Exhibits OD1 and OD2 are copies of the actions filed on behalf of the 1st Accused by Professor A.B. Kasumu SAN.
5. That I am informed by Professor A.B. Kasumu SAN that with respect of the suit filed in the Federal High Court, Abuja, he has misplaced the filed copy of the originating summons but pending applications filed after the said originating summons are attached herewith and marked as Exhibit OD3.
6. That Professor A.B. Kasumu SAN, of counsel to the 1st Accused, upon filing the suit at the Federal High Court Abuja, (Exhibit OD2) did promptly send advance copies of the processes thereto, to the Honourable Attorney-General of the Federation so as to put him on notice. Attached hereto and marked Exhibit OD4 is a copy of the covering letter processes were so forwarded.
7. That I am informed by the 1st Accused that he is entitled to immunity from arrest and prosecution by virtue of his being Executive Governor of Bayelsa State.
8. That but for the unconstitutional removal/impeachment of the 1st Accused person he is entitled to plead immunity from arrest and prosecution.
10. That I am informed by Professor Kasumu SAN and I verily believe him that the prosecution has not complied with the mandatory provisions for the commencement of criminal proceedings before the Federal High Court Lagos.”
The learned trial Judge Hon. Justice M. L. Shuaibu of the Federal High Court on the 23rd December, 2005 in his considered ruling dismissed the appellant’s application praying the lower court for stay of proceedings or an order striking out the charge for want of compliance with mandatory provisions of the Criminal Procedure Act regarding the commencement and institution of criminal proceedings. Being dissatisfied with the decision, the appellant filed a notice of appeal against same on the 4th and dated 3rd January, 2006, wherein seven grounds of appeal were filed. The appellant on the one hand, distilled five issues from the said grounds of appeal, while the 1st respondent on the other hand formulated only two issues arising from the grounds of appeal filed. The said issues are in my opinion all encompassing and adequate for the determination of this appeal. The issues reproduced are as follows:-
1. Whether the charge against the appellant was not initiated in substantial compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act.
2. Whether the lower court was wrong in refusing to stay criminal proceedings in charge No. FHC/L/328C/2005 pending the hearing and final determination of the two Civil Actions in suits Nos. FHC/ABJ/CS/622/2005 and YHC/173/2005.
It is significant to mention at this point that only two briefs are filed, that of the appellant and the 1st respondent upon which this appeal would be considered. The reference made to respondent therein therefore only refers to the 1st respondent.
For the consideration of the 1st issue raised, its genesis originated from the alternative prayer no 3 of the motion on notice reproduced supra.
It is relevant to restate that both counsel for the appellant and the respondent were agreed that criminal prosecution can only be initiated as provided for in section 77 of the Criminal Procedure Act. The learned trial judge by its ruling at page 96 of the record arrived at the following deduction wherein he said:-
“The next germane issue to consider is whether there is a compliance with the law in filing this charge. Both Professor Kasumu and Mr. Jacobs respectively for the 1st Accused and the prosecution are in agreement that section 77 of the Criminal Procedure Act regulates the methods of instituting Criminal Proceedings in this court.”
It is expedient to state that the charge sheet was filed in the court and served on the appellant on the same day. He was served while under arrest by the Economic and Financial Crimes Commission in Abuja. While the appellant’s counsel alleges non-compliance with the provision of section 77 of the Act relating to filing of Criminal information the respondent argues the contrary and in favour of substantial compliance.
The learned appellant’s counsel contended in effect that mere filing of a charge cannot amount to complying with the provision of the law. That there must be leave of the Chief Judge of the Federal High Court. Counsel argued that the court therefore ought to have struck out the action on the ground that same was not commenced in compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act. At page 97 of the record however the learned trial Judge thus ruled and said:-
“It is imperative to state categorically here that the provision of section 77 of the Criminal Procedure Act is made subject to the provisions of any other enactment to the contrary”..Thus, the cases of Akilu vs. Fawehinmi (No 2) supra, Nworie v. A.G. Ogun State (2002) 8 NWLR (Pt. 770) 559 and the Supreme Court decision in Ohwovoriole v. FRN (2003) 2 NWLR (Pt. 803) 176 having been decided on provisions of Criminal Procedure Law Cap. 30 Laws of Ogun State 1978 and Section 185(b) of the Criminal Procedure Code and not Criminal Procedure Act read in conjunction with Section 33(1) and (2) of the Federal High Court Act are in my view not applicable to the present case.”
From the foregoing lower court’s findings, there was in essence no need to obtain leave before filing or instituting a charge before the Federal High Court. The determination of this controversy would certainly require the interpretation of section 77 of the Act which both parties are agreed as being the Central focus to the issue at hand. The reproduction of the section states as follows:
“Subject to the provision of any other Act or any Law Criminal proceedings may in accordance with the provisions of this Act be instituted-
(a) in magistrates’ courts on a complaint whether or not on oath and
(b) in the High Court-
(i) by information of the Attorney-General of a State in accordance with the provisions of section 72, and
(ii) by information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provisions of Part 31, and
(iii) by information filed in the court after the accused has been committed for trial by a magistrate under the provisions of part 36, and
(iv) on complaint whether on oath or not.”
The said section clearly and unambiguously regulates the method of instituting criminal proceedings at the High Court. The relevant subsection is 77(b) and in particular and specifically 77(b)(i) which must be read along with section 72 of the same Act.
It is the appellants’ contention that only S.77 and no other applied to the procedure for the institution of a criminal proceedings in the Federal High Court. Counsel also submitted on his brief at page 7 and said:-
“whilst no leave is required for the Attorney General to file a criminal information in the Lagos High Court, leave of the judge is still a prerequisite under the Criminal Procedure Act applying to trials in the Federal High Court.”
Learned counsel sought to rely on the combined effect of sections 72, 77 and 340 of the Criminal Procedure Act.
The general principle of law governing the interpretation of statutes has been well enunciated by their Lordships of the Court of Appeal in the case of U.B.R.B.D.A v Alka (1998) 2 NWLR (Pt. 537) 328 wherein Opene JCA at pages 338 – 339 said:
“It is a fundamental principle of interpretation of statutes that ordinary words should be given a clear and unambiguous meaning and that the court should not introduce its own words in interpreting a statute. See “Mike Omhenke Obomhense v Richard Erhahon (1993) SCNJ 497 (1993) 7 NWLR (pt. 303) 22; Chief Johnson Imah & Ann v Chief Ajowele Okogbe Anor (1993) 12 SCNJ 57; (1993) 9 NWLR (pt.316) 159”.
From the foregoing authority it is needless to emphasis the extent and powers of the court on the interpretation of statutes especially where the provisions are clear and unambiguous. Courts are to interpret words in a statute only in accordance with the intendment of the legislature and not in a way that should either suit a party or otherwise. There should be no divergence but an ordinary meaning. To do other wise would amount to straying outside the designated arena of legislation. The case of Fawehinmi v IGP (2000) 7 NWLR (pt.665) 481 at 529 is relevant on the point wherein their Lordships held and said:-
“It is never part of the interpretative function of a judge to import into any legislation words that have not been employed by the legislature and which words will give a different colouration to the or the law so promulgated.
The judge must not bring to bear his personal feelings or prejudices as to what the law should be but what it is as served out in the wordings used by the legislature.”
It is not open for the court to import its own words in the process but rather to give a straight and an unaided ordinary meaning; to do so would amount to going on a frolic of its own. A further related authority is the case of Major and St. Mellons Rural District Counsel v Newport Corporation (1952) Act 189 at 191 where Lord Simmond for instance observed as follows:-
“The duty of the court is to interpret the words that the Legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly restricted.”
The said principle was well grounded and pronounced by their Lordships of the apex court in the case of Awolowo vs Shagari (1979) 6-9 SC 51.
In the light of the foregoing authorities, it is therefore of great significance to interpret the phrase “subject to the provisions of any other enactment.” By the use of the words “subject to” it implies the possibility of the section being prevailed upon by other relevant enactments. It puts a limitation on the said section which could fall short of being supreme, depending on the prevalent enactment bringing it under subjection. It would only apply without limitation in the absence of an existing limiting provision serving as an overriding authority. In otherwords, and in its present position, it could be put in a second place. The phrase “subject to” has been well expatiated in the decision of N.D.I.C. v Okem Ent. Ltd (2004) 10 NWLR (pt. 880) p. 107 at p.183 wherein their Lordships of the apex court per Uwaifo JSC had this to say:-
“The expression ‘subject to’ means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided; answerable for. See Blacks Law Dictionary 6th Edition page 1425. It must therefore be understood that ‘subject to introduces a condition, a restriction, a limitation, a proviso. See Oke v Oke (1974) 1 All NLR (pt.1) p.443 at 450. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section. See LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (pt.50) page 431 at 461, Aqua Ltd v Ondo State Sports Council (1988) 4 NWLR (pt.91) p. 622 at 655. The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provisions to which it is subject conditional upon compliances with or adherence to what is prescribed in the provision referred to.”
Contrary to the submission by the learned appellant’s counsel the supremacy of section 77 has been curtailed by the use of the phrase “subject to”. In otherwords, by the rigid interpretation of the section which seeks to exclude the subjecting measure, same has underrated the phrase “subject to”, which purpose must be to place a limitation there on the section.
This is obvious from their Lordships deductions in N.D.I.C v. Okem supra wherein the section, as rightly submitted by the learned respondent’s counsel, stands as subservient, liable, subordinate and inferior to the provisions of other enactments such as section 33 of the Federal High Court Act. The reproduction of the section is relevant as it determines the extent of the applicability of S.77 of the CPA. The said section 33 therefore states as follows:-
“(1) subject to the provisions of this section, Criminal Proceedings before the court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act, and the provisions of that Act, shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect of all matters falling within the jurisdiction of the court.
(2) Notwithstanding the generality of subsection (1) of this section, all Criminal causes or matters before the court shall be tried summarily.” (Italics is mine.)
Comparisons can be made of the two phrases: “subject to the provisions of any other Act or any law” and “subject to the provisions of this section” as provided in the two sections 77 of the CPA and 33 of the Federal High Court Act respectively.
In other words, while other external provisions are used to place a limitation on the former, the later is subjective to itself. That is to say unlike section 77 of the CPA, section 33 of the Federal High Court Act does not envisage total or strict applicability of the Criminal Procedure Act to the conduct of Criminal Proceedings before the Federal High Court.
It however provides for substantial compliance with the CPA which on the totality still remains subject to the Federal High Court Act by the use of the phrase “subject to the provisions of this section”. The far reaching effect of the phrase also serves an overriding authority over and above the extent and application of the CPA to Criminal Proceedings before the Federal High Court. The said court by subsection 33(2) although a court of summary jurisdiction, stands supreme and subjecting the provisions of the CPA to its conformity and application.
The concept or nature of summary trial Proceedings bas been defined by the Black Law Dictionary (sixth edition) at page 1204 as:-
“Any proceeding by which a controversy is settled, case disposed of, or trial conducted in a prompt and simple manners, without the aid of a jury without presentment or indictment, or in other respects out of the regular course of the common law. In procedure, proceedings are said to be summary when they are short and simple in comparison with regular proceedings.”
The 8th Edition of the Blacks Law Dictionary at page 1242 in the same spirit defines summary proceeding as:-
“A non jury proceedings that settles a controversy or dispose of a case in a relatively and simple manner.”
Section 2 of the Criminal Procedure Act also defines summary trial as follows:-
“Summary trial means any trial by a magistrate and trial by a judge in which the accused has not been committed for trial after a preliminary inquiry.”
From all indications it is obvious that the definition by section 2 of the CPA excludes the initiation of criminal proceedings in the High Court under section 77 (b)(ii) and (iii) which have been reproduced supra. The relevant and apt question to pose is:- what is the extent and scope of a summary trial? The provision of section 277 of the CPA would appear to provide the answer and its reproduction is as follows:-
“The provisions of this part shall apply to offences triable summarily, that is to say
(a) to all trials in the High Court other than on information, and
(b) to all trials in the High Court in respect of offences for which it is proved that a trial can be had in the High Court otherwise than on information and for which in special procedure is provided and
(c) to all trials in any magistrate’s court to the extent of the jurisdiction of the magistrate adjudicating and
(d) for all offences declared by any written law to be triable summarily or on summary conviction or in summary manner or by a magistrate” ((Italics is mine.).
Consequent to section 277 especially subsection (a) of the CPA read along with section 77(b)(ii) and (iii) of same, trial by information is generally excluded from summary trial proceedings. In the light of the foregoing deductions and with due consideration to section 33(2) of the Federal High Court Act, wherein all Criminal causes or matters before the court shall be tried summarily, it follows and as rightly submitted by the learned respondents’ counsel that criminal proceedings cannot be initiated or instituted at the Federal High Court by way of an information under section 77(b) (i, ii, & iii) therefore, as a consequential effect, criminal proceedings, can only be commenced at the Federal High Court in the same manner of initiating Criminal proceedings in the magistrate court under the summary trial proceedings. The conclusion arrived at would in my opinion hold reasonable especially with due regard to the definition of summary trial by section 2 of the CPA supra.
Further still, section 77(a) & (b) (iv) of CPA provides that Criminal Proceedings may be instituted under a Summary trial in the magistrate and High Courts, on a complaint whether on oath or not. Related to the said provision is section 78 of the said Act, which reproduced states as follows:-
“where proceedings are instituted in a magistrate’s court they may be instituted in either of the following ways:
(a) upon complaint to the court, whether or not on oath, that an offence has been committed by any person whose presence the magistrate has power to compel, and an application to such magistrate, in the manner hereinafter set forth for the issue of either a summons directed to, or a warrant of arrest to apprehend, such person; or
(b) by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed; and the charge sheet shall be signed by the police officer in charge of the case.”
The section applies to both situations where the accused is either in custody or not. In otherwords on the one hand, a charge can be brought upon complaint against a person not in custody by simply applying to the magistrate to either compel his appearance in court or for a warrant of arrest to apprehend him. On the other hand however, where the accused is in custody, or arrested without warrant, the prosecution is required under section 78(b) to bring him before the court upon a charge contained in a charge sheet. With the accused already being in custody, the issuance of a warrant is not needful, unlike subsection (3) to the section.
The next question to determine is:- what is a charge vis a vis a complaint? While section 77(b)(iv) of the CPA lays that criminal proceedings may be instituted “on complaint”, section 78 (b) lays that same be upon a charge contained in a charge sheet. The Black’s Law Dictionary 8th Edition again defines a complaint at page 303 as thus:
“A formal charge accusing a person of an offence.”
In the case of Okike v. LPDC (2005) All FWLR (Pt. 274) at 408; (2005) 15 NWLR (Pt. 949) 471 at 532, Pats-Acholonu JSC also in defining a charge had this to say:-
“In legal parlance what indeed is a charge. It is indeed a denouncement by which an authorized person or body invested by statutes could lay a complaint against someone tending to show that an offence or some form of breach of law or ethics of the profession has been committed”…
The characteristics of future of a charge do not lie in procedural formalism but rather in content of the unrighteous act being brought to the knowledge of the person so indicted in good lucid and readily understandable English as in the present case.”
Hon. Justice Akinola Aguda the author of the Criminal Law and Procedure of the Southern States of Nigeria (3rd Edition) at page 19 paragraph 116 said:-
“Although the definition of “charge” expressly refers to summary trial, part 33 of the Act, which deals with the procedure in summary trials, refers to the hearing of a “complaint” and treats the word as equivalent to charge.”
From the analytical deduction of the view points in the authorities supra, it is apparent that the words charge and complaint are used interchangeably. There is an exoneration and further support from section 2 of the CPA wherein charge is defined thus:-
“charge means that statement of offence or statement of offences with which an accused is charged in a summary trial before a court.”
Charge under the Criminal Procedure Act and following the definition, is, confined to a summary trial. The provision of section 33 (2) of the Federal High Court Act provides as seen supra that Federal High Court is a court of Summary Criminal jurisdiction. It is therefore regular and within the contemplation of the law as rightly submitted by the learned respondents’ counsel that a charge be filed at the Federal High Court as a means of initiating Criminal Proceedings in that court.
Oluwatoyin Doherty the author of the book Criminal Procedure in Nigeria Law and Practice at page 71 in vindicating the view point had this to say:-
“Criminal Proceedings in the Federal High Court are instituted summarily against an accused person. In other words, a charge, as distinct from an information is filed against the accused at the Federal High Court.”
The learned senior counsel for the appellant, largely in stressing his argument on the issue of non compliance of initiating summary proceedings, sought to rely on and reproduce the format of form 3 of the Criminal Procedure Act in respect of complaint. Counsel restated that a complaint must be made to a judge who is required to record the complaint and also sign it. The learned silk further contended, that leave of a judge is a pre-requisite to filing a charge under the Criminal Procedure Act. For purpose of recapitulation, leave is required only by reason of section 1 77(b)(1) of CPA where the initiation is by information of the Attorney-General. The applicable relevant subsection arrived at is, b (iv) of section 77 to the exclusion of sub-sections (i), (ii) and (iii) which cannot be brought under section 33(2) of the Federal High Court Act for summary trials. In the absence of any information filed by the Federal Attorney-General, the arguments advanced by the learned silk with all humility cannot hold solid ground. In otherwords, and as rightly submitted by the learned respondent’s counsel, what was filed was just a charge which for all intent and purpose is equivalent to a complaint and in respect of which no leave is required to file same. The learned trial judge’s findings on that premise therefore cannot be faulted wherein at page 97 of the record he said:-
“It is thus my view that in the light of section 33(i) and (2) of the Federal High Court Act leave of the judge to proffer a charge against the accused persons is not required in this court.”
The learned senior for the appellant relied on the Supreme Court’s authority in the case of Ikomi v The State (1986) 3 NWLR (pt.28) p.340 wherein that case, it was accepted that leave of court was necessary for the filing of information. The case was initiated by way of an information in the then Bendel State under-sections 72 and 77(b)(1) of the CPA. The case at hand is remarkably distinguishable from that authority in the absence of same not initiated by information under section 77(b)(1) of the Act. The authority does not aid the learned senior counsel’s case with all respect.
The learned appellant’s senior counsel also seriously contented and made an issue of the failure by the lower court in compelling the attendant of the accused pursuant to a summons in accordance to section 81 of the CPA. On the authority of Kadzi Int’l Ltd v. Kano Tannery Co. Ltd (2004) 4 NWLR (pt 864) 545 at 564 – 565, Salami JCA in delivering the leading judgment had thus to say:-
“An appeal, being a fresh suit, is generally limited to the consideration of the issue canvassed in the trial court with a view to determining whether if a careful consideration was given to the material placed before the trial court, it arrived at a correct decision on the issue. An appellate court is not a place to adduce fresh testimony nor to canvass new issues at large. Unimpeded or untrammeled argument is not permissible on appeal. To enable a party raise a fresh issue, on appeal, specific leave of the appellate court must first be sought and obtained before such point could be canvassed or argued.” Further related authorities are the cases of Ojabo v Inland Bank (Nig) Ltd (1998) 11 NWLR (pt.574) 433; and Akaaer Jor v. Kutuku Dom (1999) 9 NWLR (pt.620) 538.
As rightly submitted by the learned 1st respondent’s counsel, the question of whether Criminal Summons was issued or not is an issue of fact same from all indications had not been raised on the affidavit in support of the motion. The respondent was not disposed of the liberty and opportunity to have joined issue with the appellant on the point by filing a counter affidavit if it so desired. The provision of section 81 CPA relied upon by the appellant therefore does not avail him.
Taking for granted and even if the converse is the case, that is to say that the question of summons needed no leave, the situation would not have been different in the circumstance. In otherwords, on a careful perusal of the background of this case, the appellant was already in custody of the 1st respondent before his arraignment. The reliance sought by the appellant’s senior counsel on section 81 is therefore academic and of no useful purpose. In otherwords, it was very unnecessary for the lower court to have issued summons for purpose of securing the attendance of the appellant in court. The provision of section 78(b) of the Act is very succinct and explicit. From all indications and with the greatest respect to the learned senior counsel, there is a misconception of the general analysis and the overview of the provisions of sections 77(b), 78, 81 and 277 of the Criminal Procedure Act read along with section 33 of the Federal High Court Act.
From all indications and in the light of the foregoing deductions, arrived at, the 1st issue should and is hereby resolved against the appellant. In otherwords it is my humble view that the charge against the appellant was initiated in substantial compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act.
The 2nd issue is whether the lower court was wrong in refusing to stay Criminal Proceedings in charge No. FHC/L/328C/2005 pending the hearing and final determination of the two civil actions in suits Nos. FHC/ABJ/CS/622/2005 and YHC/173/2005. The said issue seeks to review the materials placed before the lower court by the appellant with a view to showing the rational behind the refusal of the application. It is conceded by both counsel that Exh. OD1 – OD3 are public documents and that the law requires the certification of such documents before they can be tendered and admitted in evidence. The senior counsel for the appellant in another tone also contended that the learned trial judge ought not to have determined the admissibility of the documents at the Interlocutory stage, as it was premature.
At page 93 of the record of appeal the learned trial judge held and said:-
“In other words, the only type of secondary evidence admissible is a certified true copy of the document irrespective of whether it is at trial or in an interlocutory stage.”
The learned appellant’s counsel heavily relied on the Supreme Court’s decision in the case of Military Governor of Lagos State v. Adejumo (1970) All Nigeria Law Report Part 1 page 183 in an application for an order of Certiorari to an issue made by way of motion on Notice and affidavit in support showing evidence upon which the applicant relied. The application was refused on the basis of the inadmissibility of the exhibits in support of the affidavit. It is of significance to restate that the respondent to that application, even without waiting for the motion to be moved, did raise the objection to the admissibility of certain paragraphs in the affidavit and the document annexed as exhibit E.
Learned appellant’s counsel further relied on the decision in the case of Adebayo v. FCDA (1998) 6 NWLR (Pt. 552) pages 118-130 per Opene JCA whereby his Lordship related closely to the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) P. 688; wherein the exhibits to which objection was taken at the hearing of a preliminary objection were uncertified copies of public documents attached to the supporting affidavit. At page 129 – 130 of the report in Adebayo’s case therefore, his Lordship had the following to say among others:-
“Issue No.2 is whether the learned trial judge was right when he ruled that documents in an affidavit must not be objected to until the substantive action comes up for hearing.
The learned trial Chief judge in his judgment at page 82 of the records observed:-
“On the report EXHIBIT “A” and all other Exhibits to the application I have no doubt that in view of the Supreme Court decision they are admissible in this application. In Nwosu’s case no report was submitted and court reached on other grounds that the Military Governor acted under the Decree and that was enough.”
In Nwosu v. Imo State Environmental Authority supra which is referred to by the learned trial Chief Judge, AGBAJE, JSC at pages 131 – 132 observed:-
“There is of course the decision in Adejumo v. Governor of Lagos State (1970) 1 ALL NLR 183 to the effect that documents in an affidavit must not be objected to until the substantive action comes up for hearing.” ((Italics mine).
In Adejumo v. Governor of Lagos State (1970) 1 ALL NLR 183 Ademola CJN has this to say:-
“But whether or not counsel’s address is evidence the question remains, at what stage should counsel object to the document being made use of in the case? Is it proper to object or to a paragraph of an affidavit, or a document exhibit in an affidavit before the substantive action is heard or before it is known to what use document would be put?
We think not. In our view objection should be taken when all the facts are put before the court and not at the preliminary.”
The law has been settled and these decisions show that a document should not be objected to before the substantive action is heard but when all the facts are put before the court and not at the preliminary stage.”
The objection in that case was not raised by way of a preliminary objection but during the reply by the appellant’s counsel on point of law to the address of respondent. The court found that the objection was raised when all the facts were put before the trial court and not at the preliminary stage. It was duty bound therefore to entertain the objection and rule on it.
Having regard to the authorities supra, what are the relevant deductions to be made therefrom and relating to the case at hand in this appeal? The answer to this question would greatly require the understanding of the legal effects of Exhibits OD1, OD2 and OD3 for now and also at a later stage Exhibit OD4.
In a further authority of Fawehinmi v IGP (2000) 7 NWLR (pt 665) 481 cited by both counsel, Oguntade JCA (as he then was) had the following to say amongst others at page 525:-
“..Whether or not a court would permit a public document not certified to be used as an exhibit in a motion or application should depend on the purpose sought to be achieved in exposing to the court the exhibit annexed to the affidavit. It seems to me that where the exhibit concerned is the primary evidence by which it is ought to prove the truth of a particular deposition in affidavit, the documentary exhibit must satisfy the requirements of section 97 of the Evidence Act. Otherwise it should be ignored or discountenanced.
Where on the other hand the truth or otherwise of the particular deposition depends on what view the court forms of the deposition independently of the documentary exhibit filed in support of it, the documentary exhibit which does not comply with section 97 becomes irrelevant and the court need not express any opinion concerning it, since the court is able to form an opinion of the fact in issue without placing any reliance on the documentary exhibit concerned.” (Italics is mine for emphasis.) The authority is very emphatic on the point that the court should be “able to form an opinion of the fact in issue without placing any reliance on the documentary exhibits concerned.” Thus the relevance of an exhibit has very much been relegated and its place is insignificant in determining the issue at hand.
At the lower court, the purpose of Exhibits OD1 – OD3 was to establish the fact of existing suits, being the reason for the stay of proceedings. Without the proof of such existence, there would be no purpose for a stay. The learned trial judge at page 88 of the record said:-
“The document annexed to the affidavit particularly, Exhibits OD1, OD2 and OD3 being public documents, same require certification in accordance with the provision of section 111 of the Evidence Act.”
The said exhibits OD1 – OD3 are primarily for proving the truth of a particular deposition in an affidavit, to wit the existence of civil suits; this is evident especially with due reference to paragraphs 4 and 5 of the affidavit in support of the motion at page 22 of the record wherein the significance of the exhibits are of paramount importance. In other words, in the absence of the physical exhibits, the information sought to be conveyed by the paragraph, would be far short circuited rendering the depositions of little or no help whatsoever. The reproduction of the said paragraphs 4 and 5 of the affidavit would give a clearer picture for better understanding as follows:-
“4. That the 1st accused is challenging his removal as Governor and has filed two actions challenging his removal. Now shown to me and marked as Exhibits OD1 and OD2 are copies of the actions filed on behalf of the 1st Accused by Prof. A. B. Kasunmu SAN.
5. That I am informed by Prof. A. B. Kasunmu SAN that with respect of the suit filed in the Federal High Court, Abuja, he has misplaced the filed copy of the originating summons but pending applications filed after the said originating summons are attached herewith and marked as Exhibit OD3”.
From the said paragraphs, Ex-facie, the mere mention of exhibits without stating what are contained herein do not rely on any material fact worthy of consideration. For instance the names of the parties and the suit numbers as well as the courts of institution are not known. It is trite law that a court is not allowed to speculate or stray on a frolic of its own.
To do so would amount to acting without jurisdiction and of no legal effect.
In the same authority of the case of Fawehinmi V IGP reference supra this court also had this to say at page 525.
Hearing in a substantive suit offers a more convenient and better opportunity to contest the admissibility of a document than in proceedings conducted by affidavits in which parties just freely annex all sorts of exhibits which may be otherwise considered inadmissible at proceedings in substantive hearings. However the court when alerted as to the inadmissibility of a document in proceedings conducted by affidavit evidence should rule that a public document not certified as laid down in section 97(2)(c) of the Evidence Act cannot be looked at or relied upon for any purpose.”
In the absence of section 96 of the Evidence Act, the provision of section 97 and in particular sub-section 2(c) is relevant to the issue at hand which relates to a public document within the meaning of section 109 of the Act. By the said section 97 (2)(c) it states:-
(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) of this section is as follows:-
…………………….
…………………….
(c) in paragraph (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;…”
The objection in the matter at hand relates to mandatory provisions of the act consequent to which the documents ought to meet the requirements of the law before the court could act thereon. On the uncontradicted nature of the affidavit it is trite law that an uncontradicted affidavit per se does not guarantee the court’s favour to an applicant. The duty lies on the applicant to prove the merit of his application and not to rely on the weakness of the respondent’s case. It is also trite that the granting of the order sought for, is not a matter of course. It is an order made subject to a judicious and judicial exercise of discretion by a court, having regard to due consideration of all materials placed before it.
It is not in controversy by both counsel that Exhibits OD1 – OD3 are public documents and which the law by section 109 of the Evidence Act requires their certification, to be admitted as secondary evidence. The learned silk though he conceded the nature of the document and its admissibility as public document, he however objected same as being premature of this interlocutory stage.
The learned trial court at page 93 of the record said:-
“In other words, the only type of secondary evidence admissible is a certified true copy of the document irrespective of whether it is at trial or in an interlocutory stage.”
In the case of Adejumo & other v Governor of Lagos State (1970) All NLR 183 the consideration was not made at a preliminary stage. In Jadesimi v Okotie Eboh CA/L/233/84 (unreported) and delivered on the 18th March, 1985, the objection was not grounded on the fact that admissibility, should not be entertained at the interlocutory stage of the proceedings. Rather it was argued that public documents exhibited to an affidavit in interlocutory application need not be certified which argument the court rejected and held that there was no authority cited in support thereof. The learned appellant’s counsel heavily relied upon Nwosu v Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688, wherein Adejumo’s case was cited with approval. Their Lordships of the apex court among others had this to say per Agbaje JSC at page 735.
“.The main issue in this appeal turns on the point whether on the facts disclosed in the affidavits and the documents exhibited in them, the preliminary issue was properly ordered or not, and if so whether the defendant’s preliminary issue was properly ordered or not, and, if so whether the defendant’s preliminary objection was properly upheld.”
The facts deposed to, on the affidavit, play a great significance in the determination of the propriety or not in upholding the application. In my own view, it was not the preliminary nature of the interlocutory application that mattered but whether there was in fact sufficient materials warranting the exercise of discretion in favour at that stage without the need of certification and thus making same immaterial.
Where an affidavit does not depose to material and relevant facts sustaining an application it would serve no purpose that the respondent should file any counter affidavit.
In the case of Ejefor v Okeke (2000) 7 NWLR (pt. 665) 363 at 381 the Court of Appeal Enugu Division held that:-
“The Statement of the law that there is a presumption that unchallenged and uncontraverted averments are deemed admitted does not hold in all situations. Where averments in affidavit in support of an application are contradictory or if taken together are not sufficient to sustain the applicant’s prayers, a counter-affidavit in challenge of such averments would manifestly become unnecessary. There is no rule of law that makes the filing of a Counter-Affidavit to an application a sine qua non in every case.”
A further authority in the case of Orunlola v Adeoye (1995) 6 NWLR (pt. 401) 338 at 352 is also relevant on the same proposition. The applicant in the matter at hand did not adduce sufficient facts in support of the motion to prove the existence of any pending suits at the lower courts as alleged. In the absence of certification, the exhibits are also not of any probative value. The respondent cannot be compelled to file any counter affidavit therefore.
In a further related findings in the case of Jadesimi supra and cited by the senior counsel to the appellant, their Lordships of the Court of Appeal had this to say among others:-
“from above two paragraphs of the affidavits to which there was no counter, and Exhibits B, a signed copy, there were some other materials apart from the photocopy of the writ before the learned Chief Judge from which he ought to have considered whether it had been satisfactorily shown before him that there had been filed in the same court another writ seeking to uphold the will of the deceased. No doubt, such a claim if truly filed and eventually successful would have the effect of knocking the bottom of the claim before him based as it was on the letters of administration of the estate of the same deceased person. On principle, deciding that the photocopy of the writ was not admissible did not preclude the learned Chief Judge from considering whether there were other admissible piece of evidence on the point: See section 226 of the Act: also Ajayi vs Fisher (1956) 1 FSC 90; and also Timitimi & ors. v Amabebe & Anor (1953) 14 W.A.C.A. 374. This point was therefore well taken.”
(Italics is mine for emphasis). Their Lordships in that case laid emphasis on the need for the trial court to have considered whether there was other admissible piece of evidence on the point.
In the case at hand and under consideration, the other materials before the lower court were also not admissible and the reason which same is very much distinguishable from Jadesimi’s case therefore. The issue before us is not only to the effect that the exhibits attached are inadmissible, rather, that whether even if without the exhibits there would still be sufficient subsisting facts in support and which would sustain the application. With the greatest respect to the learned senior counsel for the appellant, he appeared to have gotten the point all wrong especially on the principles laid down in Jadesimi’s case.
That case I am afraid, was not decided on a different principle but basically the same. The differences in the outcome was a result of the availability of materials, in that case, on the facts deposed to even in the absence of the exhibits. The same cannot be said of the situation at hand wherein the materials on the facts cannot independently substantiate existing suits. Basically therefore, the position of the law has not changed as sought to be portrayed by the learned senior counsel.
In otherwords, there is no departure from the basic and ordinary rule relating to admissibility of public documents. It follows therefore that for secondary evidence to be admissible, it must be certified whether at the trial or at an interlocutory stage.
The reason for the application seeking a stay of proceedings was predicated on the two pending suits at the Federal High Court and Bayelsa State High Court. In the absence of an evidence of any pending suits challenging the constitutionality of the appellant’s removal as alleged, the very foundation and substratum of the application is lacking. The Exhibit OD4, graphically relied upon by the appellant clutchingly, is a copy of the covering letter with which advance copies of processes were forwarded to the Hon. Attorney General of the Federation, intimating him of the pending civil suits and the need to exercise restraint in prosecuting the appellant. The said document has to be considered in the light of section 109(b) of the Evidence Act.
As rightly submitted by the learned respondents’ counsel, as soon as the Attorney General received the document, same had formed part of his official record. The document therefrom qualified as public record of private document under section 109(b) of the Evidence Act. The said section provides:-
“109. The following documents are public documents (a) documents forming the acts or record of the acts …
(b) public records kept in Nigeria of private documents”.
It is therefore subject to certification. In the case of Aduku v. Adejoh (1994) 5 NWLR (Pt 346) 582 at 597 it was held “that an uncertified exhibit attached to, annexed to or exhibited in an affidavit has no authenticity.” The document in possession of the appellant’s counsel had become the secondary evidence with the original being a public document in the Attorney General’s office. Exhibit OD4 being, a secondary evidence therefore required certification under section 97(2) of the Evidence Act. Relevant in point is the case of Fawehinmi v. IGP under reference supra. The findings by the lower court on the nature of exhibit OD4 being public document cannot be faulted. In other words, the learned trial court was right in refusing to place any reliance or probative value on the documents for not satisfying the requirement of section 97 of the Evidence Act. This I hold because the purpose for which the documents were attached was to show the truth of the deposition in the appellant’s affidavit. See Aduku v. Adejoh supra.
There was no material before the lower court to have sustained the application in the absence of any reason for the application. Courts do not act in a vacuum but on facts placed before it. The Supreme Court’s decision in the case of Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) p. 621 relied upon by the learned appellant’s senior counsel does not help his case. The same also applies to Akilu v. Fawehinmi (1989) 1 NWLR (pt. 102) 122 on the question of whether “there is a real danger of the causing of injustice” to the accused/appellant which does not in this circumstance arise.
In the absence of any danger therefore and with both counsel conceding the existing judicial authorities that the two cases could go on side by side, I hold the considered opinion that the findings of the learned trial judge cannot in anyway be faulted but is accordingly affirmed.
In the result and on the totality of the conclusions arrived at in the lead judgment by my brother Adamu JCA, I also allying myself with him in affirming the decision of the lower court and thus dismissing this appeal as it lacks merit. I abide by all orders made therein the lead judgment.
MOHAMMED LAWAL GARBA, J.C.A.: After a reading of the lead judgment, in draft, written by my learned brother ADAMU, JCA, I am in agreement with the conclusions reached therein. Purely for emphasis and support I wish to chip in a few words on the issues involved in the appeal.
The two (2) issues formulated by the learned Counsel for the 1st Respondent in his brief of argument, set out in the lead judgment, are in my view, the real and vital issues that call for determination in the appeal. The consideration of and decisions on the two (2) issues would fully and adequately dispose of the five (5) issues raised by the learned Senior Counsel for the Appellant in his brief of arguments.
The first of the issues was whether or not the charge against the Appellant in the lower Court was initiated in compliance or substantial compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act.
Both learned Counsel to the parties agree, and I join them, that the provisions of the Criminal Procedure Act and in particularly Section 77 thereof, applies to the case in the Court below. Section 77 of the Criminal Procedure Act, provides for the manner, mode or procedure for the initiation of criminal proceedings generally in the Magistrate as well as the High Courts. In brief, the pith of the Appellant’s complaint against the charge in the Court below was that it was filed without the consent of the Chief Judge of that Court as required by the combined effect of Sections 77(1) (b), 72 and 340 of the Criminal Procedure Act. For the 1st Respondent, the submission was that Section 77 of the Criminal Procedure Act was made subject to the provisions of the Federal High Court Act and that by virtue of Section 33(1) and (2) thereof, no leave was required before the charge could be filed in the Court below. In addition, learned Counsel for the 1st Respondent had also challenged the propriety of the Appellant’s raising a fresh issue in this appeal, i.e. issue of failure to issue criminal summons by the lower Court without leave of this Court. This challenge by the learned Counsel is on firm terrain as it is supported by the record of appeal before us. The objection of the Appellant to the initiation of the proceedings or filing of the charge against him in the Court below was entirely based on the failure to obtain the consent of the Chief Judge of that Court which was said to be non compliance with mandatory provisions of the Criminal Procedure Act. In paragraph 10 of the supporting affidavit to the motion filed by the Appellant in the Court below, which was set out at page 85 of the record of appeal, it was averred thus:-
“10. That I am informed by Professor Kasunmu SAN and I verily believe him that the prosecution has not complied with the mandatory provisions for the commencement of criminal proceedings before the Federal High Court, Lagos.”
Learned Senior Counsel for the Appellant had, while arguing the motion before the lower Court on 21/12/05, submitted as follows:
“I therefore submit that prayer 3 is predicated on Section 77 (b) (1) of Criminal Procedure Act and I contend that mere filing of a charge cannot be said to be complying with the provision of the law. I submit that there must be leave of the Chief Judge of the Federal High Court. I urge the court to grant our prayer.”
The ruling of the Court below on the objection from which the present appeal was filed was that no such consent was required for the filing of the charge or initiation of the proceeding against Appellant. It is therefore clear, that no issue of failure by the Court below to issue criminal summons was raised or canvassed by the Appellant and none decided or pronounced upon by that Court in the ruling appealed against. Accordingly the issue is being raised as a fresh or new issue in this Court by the Appellant. The law is now common place that an issue not submitted and pronounced upon by a trial Court can only be raised at this stage with the leave of this Court, sought and obtained, See YUSUF V UNION BANK OF NIGERIA (1996) 6 NWLR (Pt.457) 632, BAMGBOYE V UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) 290, OFORLETE V STATE (2000) 12 NWLR (Pt.681) 415, OKEKE V STATE (2000) 10 NWLR (Pt.675) 423; ARCHIBONG V THE STATE (2004) 1 NWLR (Pt.855) 488, SHELL PET. DEV. CO. V TIEBO VII (2005) 3-4 SC 137; (2005) 9 NWLR (Pt 931) 439.
There is no record before us to show that the Appellant had sought for and obtained the leave of this Court before raising the issue in both ground 6 on the Notice of Appeal and in the submissions on issue NO.1 as contained in the learned Senior Counsel for the Appellants’ brief of arguments. The issues of consent of a judge to prefer the charge/s or imitate the criminal proceedings in the Court below and the issuance of criminal summons by such judge are entirely two (2) different requirements under the Criminal Procedure Act. They cannot properly be taken and argued together in the present appeal since the primary issue is whether or not the consent of the Chief Judge was required by law before the charges can be filed or criminal proceedings initiated in the Court below. In the absence of the leave of the Court permitting the Appellant to raise the fresh issue of failure by lower Court to issue criminal summons in this appeal, all submissions of the learned Senior Counsel for the Appellant would be of no moment in the determination of the appeal. They are accordingly discountenanced.
Now the provisions of Section 77 of the Criminal Procedure Act, (set out in the lead Judgment), which are at the center of the dispute between the parties, appear to me straight forward, clear and unambiguous. Section 77 (b) (i) put shortly, says that subject to the provisions of any other statute or law, the Attorney General may institute criminal proceedings in the High Court, (for our purposes the Court below) by information in accordance with Section 72 of the Act. The ordinary, grammatical and simple intendment and meaning of these provisions is that the exercise of the discretion given to the Attorney General to initiate criminal proceedings in the Court below was made to depend on, subordinate to, be controlled by or restricted, limited to or confined by the provisions of any other law by the use of the words “subject to” in the opening sentence of the section. Put another way, the Attorney General was to exercise the discretion only in accordance with or as provided or permitted by any other statute or law on the initiation of criminal proceedings in the Court below. It is the duty of the Court to interpret and give ordinary, plain meaning to the words of a statute that are clear, precise and unambiguous within the con of the statute – AFRICAN NEWSPAPERS (Nig.) Ltd. V FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (Pt.6) 137, SALAMI V CHAIRMAN, L.E.D.B. (1989) 5 NWLR (PT.123) 539, OGBONNA V ATTORNEY GENERAL, IMO STATE (1992) 1 NWLR (Pt.220) 647.
The expression “subject to” used by the legislature in enacting statutes or laws has been defined and interpreted in several judicial decisions as demonstrated by the learned Counsel for the 1st Respondent in his brief of arguments. In addition to the cases cited by him, the words “subject to” was defined in the following cases:- OLUSEMO V COP (1998) 11 NWLR (Pt.575) 547, COMPTEL INT’L. SPA V DEXSON LTD (1996) 7 NWLR (Pt.459) 170, LABIYI V ANRETIOLA (1992) 8 NWLR (Pt.258) 139, TUKUR V. GOV. OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517 and YUSUF V OBASANJO (2003) 16 NWLR (Pt.847) 554. The definitions and interpretations of the phrase in all these cases put it beyond contention that whenever it was used in a statute, the intention, purpose and legal effect was to make the provisions of the section inferior, dependent on limited and restricted in application to the Section to which they were made subject to. In other words, the provision of the latter Section shall govern, control and prevail over the provisions of the Section made subject to it. See FEDERAL REPUBLIC OF NIGERIA V OSAHON (2006) 5 NWLR (Pt.973) 361 at 429-30. In this con, the entire provisions of Section 77 of the Criminal Procedure Act are to be applied to the extent allowed or permitted by the provisions of any other enactment on the subject. Accordingly, criminal proceedings may be instituted in the Court below in accordance with the provisions of any other enactment, law or statute that make provision for that purpose and the provisions of Section 77 of the Criminal Procedure Act would only apply in such a situation as provided or allowed by that other enactment.
Consequently the institution of criminal proceedings in the Court below in accordance or compliance with Section 77 of the Criminal Procedure Act can only be in the manner, mode or procedure provided for, permitted or allowed by any other enactment to which it was made subject.
The other enactment relevant to the appeal is the Federal High Court Act. In particular, Section 33(1) and (2) of that Act were singled out and relied on by the Court below in its ruling on the objection taken on the procedure for the initiation of the proceedings against the Appellant. For ease of reference, the provisions are as follows:-
“33.(1) subject to the provisions of this Section, criminal proceedings before the Court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act, and the provisions of that Act, shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect of all matters falling within the jurisdiction of the Court.”
“(2) Not withstanding the generality of subsection (1) of this Section, all criminal causes or matters before the Court shall be tried summarily.”
In his ruling, the learned Judge of the Court below had held inter alia, at page 97 of the record of appeal thus:-
“It is thus my view that in the light of Section 33 (1) and (2) of the Federal High Court Act, leave of the Judge to prefer a charge against the accused persons is not required in this Court.”
The learned Senior Counsel for the Appellant had argued that the provisions of Section 33 (1) and (2) set out above refer to the manner of conducting criminal trial in the Court below being a summary trial and do not deal with how to initiate the trial. At a glance, the contention of the learned Senior Counsel appears attractive as it glitters over the provisions of Section 33(1) and (2). However on a second and close look, one would easily see that the learned Senior Advocate and Professor of Law has conceded that by the provisions of subsection (2), the proceedings against the Appellant in the Court below were criminal causes or matters which shall be tried summarily. Since it is now common ground that all criminal causes or matters in the Court below are to be tried in a summary manner or procedure as provided in subsection (2), the vital question that should agitate the mind of the learned Senior Counsel is whether or not the criminal proceedings against the Appellant in the Court below were initiated in accordance or compliance with the procedure provided for the institution of summary trials by the Criminal Procedure Act.
In answering this question regard ought to be had to the provisions of Section 227 of the Criminal Procedure Act which say:-
(a) to all trials in the High Court other than on information, and
(b) to all trials in the High Court in respect of offences for which it is proved that a trial can be had in the High Court otherwise than on information and for which in special procedure is, provided and
(c) to all trials in any Magistrate’s Court to the extent of the jurisdiction of the magistrate adjudicating and
(d) for all offences declared by any written law to be triable summarily or on summary conviction or in summary manner or by a Magistrate.”
What appears crystal clear in the above provisions is that by paragraph (a) trials commenced, initiated or instituted by way of or on information in the High Court are excluded or exempted from the procedure for summary trials provided in the Section. It is worthy to note at this stage that the proceedings initiated or instituted against the Appellant in the Court below were not by way of an information, but by the filing of charges. So the procedure in summary trials as provided in Section 277 is applicable.
In this regard, I find myself in agreement with the learned Counsel for the 1st Respondent that on the authorities cited by him in the brief of arguments as well as Section 2 of the Criminal Procedure Act, complaint as used in the Criminal Procedure Act means and includes a charge in the form of a statement setting out details of offence/s with which a person is/are accused of before a High Court or a Magistrate Court.
It may be recalled that Section 77 (a) and (b) (iv) provide for, allow and permit the institution of criminal proceedings in both Magistrate and High Court by way of or on complaint whether or not on Oath.
From a community reading of the provisions of Sections 77 (b) (iv), 277(a) of the Criminal Procedure Act and 33 (2) of the Federal High Court Act, I am convinced that the criminal proceedings instituted or initiated in the Court below against the Appellant were commenced and instituted in compliance and in accordance with the provisions and intendment of the Criminal Procedure Act and Federal High Court Act. My humble understanding of the above named Sections of the two statutes is that no leave of the Judge of that Court was required before the filing of the complaint in the form of charges against the Appellant. I accordingly resolve this issue against the Appellant.
The 2nd issue is on stay of proceedings. The attack by the Appellant on the ruling of the lower Court in respect of the issue was grounded on the following reasons.
(i) that though Exhibits OD1, 2 and 3 attached to the sworn affidavit of the Appellant’s motion are conceded to be copies of public documents, no certification was required on them to be admissible in evidence in determining the motion.
(ii) that Exhibit OD4 also annexed to the Appellant’s sworn affidavit for the motion, was not a copy of public document that required certification.
(iii) that without the exhibits attached to the affidavit in support of Appellant’s motion, there was sufficient evidence in the affidavit to warrant the grant of an order for stay of the proceedings of the lower Court.
I would briefly comment on the grounds as set out above.
Now Exhibits OD 1, 2 and 3 being copies of papers, documents or processes purported or said to have been filed in Courts at Abuja and Yenegoa are undoubtedly secondary evidence of public documents. Ordinarily by the provisions of Section 96 of the Evidence Act, Cap. 112, Laws of Federation of Nigeria, 1990, documents must be proved by primary evidence except in the cases provided for and set out in Section 97. Paragraphs (e) and (f) of Section 97 are the relevant situations or cases for the purposes of the appeal. These paragraphs allow certified copies of public documents to be given in evidence and subsection 2 (c) of Section 97 make the following terse provisions:-
“97.(2) (c) in paragraph (e) or (f) certified copy of the document, but no other kind of secondary evidence is admissible (Italics provided for emphasis).”
The above provisions were considered and pronouncements made thereon in many cases by the Courts that the principle of law established in all of them has now become elementary. The cases include NZEKWU V NZEKWU (1989) 2 NWLR (Pt.104) 373, MINISTER LANDS WESTERN (NIG.) V DR. NNAMDI AZIKIWE (1969) 1 ALL NLR 49, SHELL PETROLEUM V NWOLU (1991) 3 NWLR (Pt.180) 496 at 504-5, I.M.B. V DABIRI (1998) 1 ALL NWLR (Pt.533) 284, ONOBRUCHERE V ESEGINE (1986) 1 NWLR (Pt.19) 799, C.C.B. LTD V ODOGWU (1990) 3 NWLR (Pt.140) 646 and ONWUMELU V DURU (1997) 10 NWLR (Pt.525) 377. The provisions were given their clear and precise meaning that only certified copies of public documents are admissible in evidence in all the cases they were considered.
The learned Professor and Senior Counsel had submitted that the admissibility of the Exhibits OD1, 2 and 3 and indeed OD4 should not be the concern of the lower Court at the stage of the motion which is interlocutory in the proceedings. He relied on the MILITARY GOVERNOR OF LAGOS STATE V ADEJUMO (1970) ALL NLR 1 AT 183, NWOSU V IMO STATE ENVIRONMENTAL SANITATION AGENCY (1990) 2 NWLR (Pt.135) 688, ADEBAYO V FCDA (1998) 6 NWLR (Pt.552) 118 and AKILU (1994) 6 NWLR (Pt.351) 387. With all the respect due to the learned Senior Counsel, these cases did not lay down any hard and fast rule or principle of law to the effect that an objection cannot be taken to the admissibility of documentary exhibits attached to an affidavit in interlocutory applications. None of these cases is an apt authority for the contention that the learned Judge of the court below should not concern himself with the admissibility of the documentary exhibits annexed to the affidavit in support of the motion and relied on by the Appellant to secure an order for the stay of proceedings he sought for. Sight should not be lost of the fact that by the nature of the motion, facts and circumstances of the proceedings against the Appellant in the Court below, the reliefs sought in the motion depended entirely on the consideration of the affidavit evidence (along with all Exhibits attached thereto) adduced and placed before the Court by the Appellant. It was the legal duty of and the burden was on the Appellant who sought the exercise of the Court’s discretion in his favour to place before it, materials sufficient to satisfy the Court that he was entitled to the reliefs sought. On its part the Court below, in the judicial and judicious exercise of that discretion must consider all the evidence placed before it and relied on by the Appellant in support of the reliefs he sought. In that exercise, the primary concern of the Court below was to consider in all legal ramifications, the evidence relied on as well as the peculiar facts and circumstances of the motion. Part of the evidence adduced and relied on were the Exhibits annexed to the affidavit in support. The Exhibits clearly seek to and were meant by the Appellant to show and establish the truth of the averments in paragraphs 4 and 5 of the affidavit in support of the motion.
The paragraphs and the Exhibits were all placed before the Court below to convince or satisfy it to the effect that the Appellant had indeed filed the cases indicated therein which was the only basis on which the Appellant grounded the application for stay of the proceedings against him. In the above circumstances, the Court below was not only entitled to consider and concern itself with the admissibility of the Exhibits, but had a duty to do so and was not bound by any previous decisions in the exercise of its duty and discretion to do so. See ODUSOTE V ODUSOTE (1971) 1 ALL NLR 219, ANYAH V AFRICAN NEWSPAPERS OF NIGERIA (1992) 6 NWLR (Pt.247) 319 at 334, LONG-JOHN V BLAKK (1998) 6 NWLR (Pt.555) 524 at 543, ATIKU V STATE (2002) 4 NWLR (Pt.757) 265 at 278 and IKHAZUAGBE V COP (2004) 7 NWLR (Pt.872) 346 at 365, GBERE V ALLI-OWE (2000) 11 NWLR (Pt.678) 294.
The Court below can only properly exercise its discretion on, the application by using, acting and relying on legally admissible evidence alone. OJUYA V NZEOGWU (1996) 1 NWLR (Pt. 427) 713, FAWEHINMI V INSPECTOR GENERAL OF POLICE (2000) 7 NWLR (Pt.665) 481, ARAKA V EGBUE (2003) 17 NWLR (Pt.848) 1, NIGERIA CUSTOMS SERVICE V BAZUAYE (2006) 3 NWLR (Pt.967) 303. The facts and circumstances of the Appellant’s case are different to those in all the cases cited by learned Senior Counsel. In line with all I have said so far, my firm view is that the procedure adopted and the finding by the learned trial Judge on the Exhibits OD1, OD2 and OD3 cannot and have not been legally faulted in the present appeal. I endorse the finding on the said Exhibits.
The learned Senior Counsel for the Appellant had also argued in his brief of argument that Exhibit OD4, copy of a letter written by him to the Federal Attorney General on the purported institution of the cases indicated in Exhibits OD1, 2 and 3, is not a public document under the provisions of Section 109 of the Evidence Act. Learned Counsel for the 1st Respondent after setting out the relevant part of Section 109 of the Evidence Act, had contended that Exhibit OD4 is a copy of what has become a public document by virtue of subsection 2 of Section 109 by its being sent to the office of the Attorney General of the Federation. This latter submission appears more viable in law because the letter sent by the learned Senior Counsel to the Attorney General of the Federation was sent to him in his official capacity and as a party to the processes said to have been filed by the Appellant.
The letter was meant for the Attorney General of the Federation’s official information and action in respect of the subject mentioned therein. That being so, the letter sent had become public record of a private document as envisaged by the provisions of subsection (2) of Section 109 of the Evidence Act. Exhibit OD4 being secondary evidence of what is now a public document, requires certification for it to be admissible under Section 97(2)(c) of the Evidence Act.
Once again, the Court below can only use, act or rely on legally admissible evidence placed before it in the exercise of the discretion one way of the other.
In the absence of the necessary certification as required by law, Exhibit OD4 suffers the same fatally terminal defect of being inadmissible in the proceedings before the Court below. I accordingly agree with the finding of the learned trial Judge on Exhibit OD4.
The issue was also raised by the learned Senior Counsel for the Appellant whether there was sufficient evidence apart from or if Exhibits OD1 – OD4 are excluded from the affidavit of the Appellant in support of the motion to warrant the order for stay of proceedings.
From the onset, I would like to point out that an order for a stay of proceedings before a Court of law is a very serious, grave and fundamental interruption in the right of a party to prosecute his case without unnecessary delay and an impediment to the expeditious disposition of cases by the Court in line with the guaranteed constitutional right to a fair hearing within a reasonable time. It is for this and other reasons that the Courts have over the years held the position that an applicant for an order of stay of proceedings must show that in the peculiar circumstances of his case, it would be unjust or inequitable not to grant the order. Put another way, the applicant must satisfy the Court prima facie that the proceedings ought not to be allowed to continue in the interest of justice of the case. STATE V AJAYI (1996) 1 NWLR (Pt.423) 169, DAILY TIMES (NIG.) PLC V MAGORO (1999) 7 NWLR (Pt.612) 592, ANAMCO LTD. V FIRST MARINA TRUST LTD. (2000) 1 NWLR (Pt.640) 309, UNITED SPINNERS (NIG.) LTD. V CHARTERED BANK LTD. (2001) 14 NWLR (Pt.732) 195, ABACHA V STATE (2001) 7 NWLR (Pt.713) 551, KABO AIR LTD. V INCO BEVERAGES (2003) 6 NWLR (Pt.816) 323 and AYENI V ELEDO (2005) 12 NWLR (Pt.939) 368.
It is worthy of note that the motion filed by the Appellant in the Court below seeking for inter alia stay of proceeding, was not for a stay of proceedings pending the determination of an appeal in respect of the proceedings, before that Court. The application was for an order staying proceedings pending the trial of the cases the Appellant was said to have filed at Abuja and Yenegoa.
The motion which was dated the 20/12/05 and filed on the 21/12/05 in the Registry of the Court below sought orders as follows:-
“(1) An Order of this Honourable Court staying proceedings of this trial pending the hearing and determination of the actions filed by the 1st Accused in the following suits namely:
“(a) Suit No. FHC/ABJ/CS/622/2005 – His Excellency Chief Dr. D.S.P. Alamieyeseigha Vs. The Attorney General of the Federation and Ors.
(b) Suit No. YHC/173/2005 – His Excellency Chief Dr. D.S.P. Alamieyeseigha Vs. Chief Judge of Bayelsa State & Ors. Wherein the 1st Accused is challenging the validity and/or Constitutionality of his removal as the Governor and Chief Executive of the Bayelsa State Government.’
In the alternative to Prayer 1 above
(2) An Order of this Court declining jurisdiction to hear the case against the 1st Accused until the 1st Accused claims to immunity from arrest and prosecution is determined in the two suits listed in Prayer 1 above.
In the further alternative to Prayers 1 and 2 above,
(3) An Order striking out this action for want of compliance with the mandatory provisions of the Criminal Procedure Act LFN 2004 and the Federal High Court Act LFN 2004 regarding the commencement and institution of criminal proceedings in the Federal High Court.”
The eleven (11) paragraphs affidavit in support of the above prayers sworn to by one Vincent Obianoyi, a legal practitioner in the chambers of the learned Senior Counsel for the Appellant, are all in line with the said filing of and pending cases as the basis for the application.
Now with the finding of the Court below rejecting and discountenancing Exhibits OD1 – OD4 for being inadmissible in law, the paragraphs are rendered impotent, barren, insipite and puny. What was left on the affidavit after the rejection of the Exhibits OD1 – OD4 annexed thereto were mere phantasm of the deponent which do not merit any challenge by way of counter affidavit before the Court below could jettison them. Put simply, without Exhibits OD1-OD4 nothing was left in the supporting affidavit in the form of cogent and sufficient evidence to warrant or justify a grant of the order staying proceedings by the Court below.
With the rejection and exclusion of the Exhibits from the affidavit in support, the foundation, basis or bottom of the Applicant motion crumbled and collapsed completely leaving no materials for the Court below to consider in the exercise of its discretion to either refuse or stay its proceedings.
No valid reason whatsoever has been adduced or shown by the Appellant in this appeal to convince me that any evidence sincerely existed or was left in the supporting affidavit after the exclusion of Exhibits OD1-OD4 for the grant of an order for stay of proceedings. Consequently, I find no reason to interfere with the decision of the Court below on the Issue.
On the whole, the Appellant has not discharged the Legal burden of showing that the established situations for interference by this Court with the exercise or the discretion by the Court below, exist in the appeal. In the final result, for the reasons given above and the fuller and more pungent ones adumbrated in the lead judgment, I agree that the appeal lacks merits, I dismiss it in all the terms of the lead judgment.
SOTONYE DENTON-WEST, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, now delivered and I have the following contribution in respect of the judgment.
The present appeal is against the Ruling of the Federal High Court (Lagos Division) of the 23rd day of December, 2005, which Ruling disposed of the two applications challenging the jurisdiction of the trial Court filed by the 1st Accused person and the 2nd, 3rd, and 4th Accused/Respondents respectively.
The application of the 1st Accused person before the trial court had three prayers, each in the alternative of the other. The first prayer is in the High Court of Bayelsa State and another in the High Court of the Federal Capital Territory. The second prayer is for an Order declining Jurisdiction on the same grounds as the first prayer, while the third is a prayer to strike out the Action at the lower court for noncompliance with the provisions of the Criminal Procedure Act and the Federal High Court Act.
The 2nd, 3rd and 4th Accused/Respondents filed a Notice of Preliminary Objection at the lower court urging the court to strike out the charges against the 2nd, 3rd and 4th Accused persons in the suit and further discharge them in that their management had not been summoned before the court and in law cannot be tried in abstention.
Learned Counsel for the 5th, 6th 7th and 8th Accused/Respondents relied on the submissions of the learned Senior Advocate of Nigeria; (Professor A. B. Kasunmu), in his argument of the 1st Accused person’s Application. The fate of the 5th – 8th Accused/Respondents in this appeal is therefore tied to that of the 1st Accused person more so that the 5th – 8th Accused/Respondents have failed to file any brief in the present appeal.
In his Ruling contained at pages 81 – 98 of the Record of Appeal, the Learned trial judge formulated two issues for consideration in the case, they are;
(1) whether or not the 1st Accused person has made out a case for the grant of stay of proceedings in this case
(2) whether or not this court has the competence and or jurisdiction to take the accused persons plea respecting the charge filed against them in this case.
In his consideration of the first issue the learned trial judge dwelled on the Affidavit evidence in support of the Motion on Notice filed by the first Accused person. The said Affidavit exhibited court processes in the alleged cross actions in the High court of Bayelsa State and the Federal Capital Territory (i.e. Exhibits OD1, OD2, and OD3). In his well considered Ruling the learned trial Judge held that the authenticity of the suits allegedly filed in those courts largely depends on the said Exhibits. Since It was not contested that the said Exhibits failed the test for admissibility under Section 111 and 112 of the Evidence Act the said Exhibits being public documents, the prayer for a stay of proceedings consequently failed and so the first issue was resolved against the Appellants.
In his consideration of issue No. 2, the lower court upheld the submissions of the 1st Respondent; that the position of the Civil Procedure Rules as it concerns the issue of service is not applicable to the present case and that the applicable law is the Criminal Procedure Act L.F.N. 2004 at Section 89 thereof. The lower court held that Section 77 of the Criminal procedure Act being a subjective provision must be read conjunctively with Section 33 (1) and (2) of the Federal High Court Act. The court held finally on the issue of compliance, that there was no legal and or procedural inhibition to the arraignment of all the eight Accused persons listed on the Charge before the lower court. See page 97 of the Record of Appeal.
On the issue of non service raised by the 6th – 8th Accused/Respondents the lower court held that it behoved on the 6th – 8th Accused/Respondents to establish their claim of non-service other than by Counsel’s averment from the bar.
In total the lower court dismissed both the Motion on Notice of the 1st Accused person and the Notice of preliminary Objection of the 2nd, 3rd and 4th Accused/Respondents. See pages 97 and 98 of the Record of Appeal.
The first Accused person filed the Notice Appeal dated the 3rd day of January, 2006 and raised seven grounds of Appeal therein;
GROUND ONE:
The learned trial judge erred in law in holding that exhibit OD4 is a public document which has to be certified when the said document is not a public document within the provision of the Evidence Act and which document is sufficient evidence of the filling of suit FHC/ABJ/CS/622/2005 before the Federal High Court, Abuja.
GROUND TWO
The learned Trial judge erred in law in holding that since the Exhibits attached to the affidavit in support of the Motion on Notice dated 20th December, 2005 are inadmissible, the application of the 1st Accused must fail when;
(a) The affidavit evidence before that court as to the filing of the said suits were not controverted by the state as no counter affidavit was filed to controvert the facts deposed to in the said affidavit.
(b) The uncontroverted fact in the affidavit without the exhibit are enough evidence as to the filing of said suits.
GROUND THREE
The learned Trial Judge erred in law in holding that since the Exhibits attached to support the application of the 1st Accused are inadmissible in law, no legal obligation is imposed on the state to file any counter affidavit to controvert the averment of facts deposed to in the affidavit of the Accused.
GROUND FOUR
The learned trial judge erred in law in determining the admissibility of the exhibits attached to the Affidavit in support of the Motion on Notice dated the 20th December, 2005 at the interlocutory stage of the action contrary to the binding decision of the supreme court in NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt 135) 688 at 735 that documents in an Affidavit must not be objected to until the substantive action comes up for hearing.
GROUND FIVE
The learned Trial Judge erred in law in holding that even though the application before the court was an interlocutory application Exhibit OD1 – OD4 being public document must be certified.
GROUND SIX
The Learned Trial Judge erred in law in dismissing the objection of the 1st Accused/Appellant that the action was not initiated in strict compliance with the provisions of the Criminal Procedure Act 2004 and the Federal High Court Act 2004.
GROUND SEVEN
The Learned Trial Judge erred in not staying proceedings before him to abide the decision in either of the two cases referred to on the Motion Paper.
The Appellant subsequently raised five issues for determination in its Brief of Argument filed on the 9th day of February, 2006 the issues are:
1. Should the trial judge not have struck out the action on the ground that the same was not commenced in compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act.
2. Was the trial judge right in refusing to countenance and or place any reliance on the documents Exhibited to the Affidavit in support of the Application of the 1st Accused on the ground that they are inadmissible
3. was the trial judge right in holding that Exhibit OD4 is inadmissible if he was right in so holding what should have been the effect of this on the application of the 1st Accused.
4. having refused to countenance the Exhibits attached to the Affidavit evidence should the judge not have considered the uncontradicted facts in the Affidavit as sufficient to grant the relief sought?
5. should the criminal proceedings before the trial court be stayed
All of the issues formulated were distilled out of and related to the grounds of appeal raised in the Notice of Appeal filed by the Appellant.
The 1st Respondent in its Brief of Argument filed on the 20th of February, 2006 formulated only two issues for determination in the present Appeal.
Issues No 1 formulated by the 1st Respondent is distilled out of ground 6 of the Notice of Appeal while the 2nd issue is distilled out of grounds 1, 2, 3, 4, 5, and 7 of the Notice of Appeal.
In the present Appeal the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Respondents filed no Brief of Argument.
Before I proceed to consider the issues formulated, I want to quickly observe that the learned Senior Advocate of Nigeria for the Appellant (Professor A.B. Kasunmu) admitted before the trial court at page 9 of the supplementary Record of Appeal that Exhibits OD1 – OD4 are public documents but that certification of them was unnecessary at the interlocutory stage of the case at the lower court. I was therefore surprised that the learned silk for the Appellant turned around and argued fervently in his Brief that Exhibit OD4 is in fact not a public document under issue No.3 of the Appellant’s Brief of Argument at pages 17, 18 and 19 especially the last paragraph of page 18.
In arguing the first issue formulated by the Appellant the provision of Section 77 of the Criminal Procedure Act was reiterated. In fact it was reproduced. In my consideration, I will lay emphasis on the main paragraph of the said Section 77 which provide thus;
“Subject to the provisions of any other Act or any law Criminal proceedings may in accordance with the provisions of this Act be instituted ;” (the Italics mine)
The above provision is certainly clear and unambiguous and so should ordinarily not require any adventure in jurisprudence to interpret.
The learned trial judge in his Ruling drew attention to the subjective nature of Section 77 of the Criminal Procedure Act and rightly pointed out that it must be read conjunctively with Section 33 of the Federal High Court Act. The argument of the Appellant in insisting that the court must follow the provisions of the said Section 77 of the Criminal Procedure Act does not persuade me at all, especially when it was suggested that legislative amendments ought to change the con of the Criminal Procedure Act to expressly mention the Federal High Court instead of the Magistrate Court, I find this submission to be academic and extrinsic to the present appeal. The responsibility of the court is to interpret the laws and not to usurp the duties of the legislature by writing or amending the laws of Nigeria.
On issue No.2 formulated by the Appellant which borders on the admissibility of Exhibits OD1-OD4 tendered at the lower court, the Appellant canvassed a very germane point. When learned counsel argued that the Affidavit evidence being uncontradicted ought to have been admitted with or without the Exhibits. The Appellants stated that the Exhibits were admissible despite that they were uncertified secondary evidence of public documents. It was the Appellant’s contention that at the interlocutory stage of this case the admissibility of the Exhibits should not have arose. The appellant relied on the case of MILITARY GOVERNOR OF LAGOS STATE V ADEJUMO (1970) ALL NLR PT. 1, P. 183 and NWOSU -V- IMO STATE ENVIRONMENTAL SANITATION AUTHORITY all of which cases are unsupportive of the Appellant’s case in my consideration.
I have gleaned meticulously at the facts of the case before the lower court and I have also read the brilliant submission of the learned silk on the present issue and I am struck by the realization that while the authorities cited by the Appellant relates to Exhibits annexed to Preliminary Objections, the Exhibits in question in the present Appeal are not annexed to the preliminary Objection in this case they are attached to the Affidavit in support of the Application for stay of proceedings.
The nature of the Applicant’s application before the court below differs from that of a Preliminary Objection. The Existence of a cross action must be proved by the Applicant to merit the grant of the said application. The Appellant cannot rely on the weakness of the Respondent’s case and obtain a stay of proceeding as a matter of course.
While I am alive to the wisdom of the Supreme Court in discouraging the objection to documentary evidence at an interlocutory stage, I observe that the flexibility demonstrated in the precedents sought to be relied upon by the Appellant is not elastic enough to bind him into the category he seeks refuge with. The said flexibility obviously is not intended to undermine the well established position of our law as enshrined in the Evidence Act.
Under the circumstance of the present case unlike the precedents cited by the Appellant if the Respondent was disallowed to object to the Exhibits attached at the interlocutory stage, those Exhibits not being part of the pleadings in the substantive action, the Court would have irreparably found the Evidence Act.
On issue No. 3 formulated by the Appellant, I have earlier on observed that the learned counsel conceded in the court below at page 9 of the Supplementary Record of Appeal that Exhibit OD4 is a pubic document, the learned silk has apparently reversed from that position and now persuades this court to hold that Exhibit OD4 is not a public document. The learned Senior Advocate of Nigeria referred to NWADIALO on Evidence at pages 307 and 308 and also AGUDA on Evidence at pages 227- 278. The authorities draw a difference between ordinary official letters which do not qualify as public document and documents which because of their purport qualify as public document. The authorities of NWADIALO and AGUDA do not persuade me and of course are not binding on this court. I refuse to prefer the said authorities to the well considered finding of the lower court.
On 4th issue formulated by the Appellant, I shall now dwell on the said issue together with issue NO.5, more so because both issues touch on grant of stay of proceedings pending appeal and whether the trial judge’s consideration of the uncontradicted facts in the affidavit warrant the grant of stay of proceedings which is the relief sought in the appeal. In EKPENKHIO vs. EGBADON (1993) 7 NWLR (Pt. 308) page 717 at 744, “In this instance the plaintiff in the court below has complained that he was wrongfully and unconstitutionally removed as a Speaker of Edo State House of Assembly and has brought an action against the said House of Assembly and functionaries thereof. There were two uncontroverted facts in the affidavit evidence and pleadings. First, the plaintiff was removed by a two-thirds majority of all members of the House in compliance with Section 4(2)(c) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 50 of 1991 which provides inter alia thus:
(2) The Speaker or Deputy Speaker shall vacate his office:-
(a) If he is removed from office by a resolution of the House of Assembly by the votes of not less than two-thirds majority of all members person.”
The second uncontroverted fact was that the plaintiff was present and voted, but was in the minority. If he had attracted a two-thirds majority votes in his favour, this action would not arise. Prima facie, therefore, the procedure for his removal was in accordance with the law.” Although in the instant appeal, the learned trial judge in view of the annexed exhibits refused to admit the affidavit in support of the application, averments in the affidavit in support of the application in the lower court was not controverted nor challenged by the respondents as even observed by trial court itself who further observed that even though the averments in the affidavit was not challenged the annexed exhibits OD1, OD2, OD3 and even OD4, had made it inadmissible.
Many times, the reason for applying to stay the proceedings in a case at the trial court is always because of an interlocutory appeal which might affect the proceedings of the case, however, sometimes like in the present appeal, it is due to the filing of cross actions or related actions where the determination of one will have a direct effect on the determination of the other. This court has persistently held that in all such cases the court has a duty to exercise its discretion judiciously and judicially in the interest of justice. In criminal cases the reason why the courts are usually reluctant to stay proceedings is always the interest of the accused persons, who sometimes are not admitted to bail (as in the present case) and who stands to benefit from the speedy prosecution of the case See; AROYEWUN -V- C.O.P (2004) 16 NWLR 899 AT 414 P. 426 F – H. See also OGBORU -V- PRESIDENT, COURT OF APPEAL (No.2) (2005) 18 NWLR (PT. 956) at 80. In the present case it is the accused persons who have asked the court to stay proceedings. What agitates my mind therefore is how the stay of proceedings would jeopardize the prosecution knowing very well that the statute of limitation is inactive against crimes. The Affidavit in support of the Motion for Stay of Proceedings averred that actions were filed in the High Courts of Bayelsa and the Federal Capital Territory. This fact is not in issue. I also agree with and accept the respondent’s submission on the abrogation of the archaic rule in Smith vs. Selwyn (1914) 3 KR 98 or it inapplicability in Nigeria for its being a “clog” in or to the wheel of administration of justice”.
I have noticed with concern, that the issues involved in the present appeal are the very technical fundamentals of our law. I have always demonstrated in my judgments that the technicality of the law should never be allowed to override justice and I continue to be encouraged in that position by the apex court of this jurisdiction. See ADELUSOLA -v. AKINDE (2004) 8 MJSC AT 33; (2004) 12 NWLR (Pt. 887) 295.
The judiciary has a fundamental role to play as the protector and guardian of the Constitution. They further have the mandate to curb the excesses of overbearing executive and legislative acts by their judicious pronouncements. See EKPENKHIO vs. EGBADON (1993) 7 NWLR (Pt. 308) page 717 at 744, LEKWOT vs. JUDICIAL TRIBUNAL (1993) 2 NWLR (Pt. 276) page 410.
Consequently the following observations stems out of natural and common sense of justice, based on judicial notice. The facts of the present appeal informs me, that the Appellant intend to stall the criminal charges filed against him at the lower court and hopefully regain his apparently lost immunity by the judgment of the High Courts of Bayelsa and the Federal Capital Territory, if those courts find in his favor, thereby allowing him to escape any culpability he might have incurred. Indeed, if the first and fifth issues formulated by the Appellant were herein resolved in his favor it would create that effect.
The immunity enjoyed by the executive heads of government at the State and Federal levels by virtue of our constitution is not intended to foster corruption or make the beneficiaries of such immunity impudent and above the law. It is certainly not the purport of that provision, for the beneficiaries of the said immunity to hide behind the constitution and offend the law.
To the contrary, it is intended to protect the beneficiaries from the hindrance of frivolous court actions and from litigation aimed to victimize them for actions taken in public interest against any individual interest. It is to allow the executives function without fear or favor in the discharge of their duties. I make bold to say, that it is even in the furtherance of the independence of the executive arm of government from the caprice and unrestrained control of the judiciary and legislature, otherwise I must wonder how the law allowed such immunity to elude the members of the legislative houses who made the laws.
Should I not then say, that to whom much is given much is expected. The executive arm of government should strive to fulfill the intention of the immunity clause rather than unduly exploit it, whilst its beneficiaries should also not abuse it by hiding under the cloak of immunity to commit heinous crimes in our society. For indeed there seems to be some sacred cows amongst the governors who hide behind the cloak of immunity to commit atrocities. Therefore devoid of any political interest, I would like to sound a note of warning to such governors and other executive officials, especially the elected politicians to desist from such acts. Our superior courts have persistently held that litigation is not like a game of chess, and so does not depend on the dexterity of advocacy to achieve justice. Instead it is the sincere presentation of facts and the application of the law thereto which attains substantial justice.
In this light, our executive must wake up and realize that the law is not a political instrument that should be circumvented to score political goals in the game of politics. The executive must know that he who comes to equity must come with clean hands. The government must not only respect the law, it must in fact submit to the law in total. The government may not rightly choose which law to abide by and which law to flaunt or when to abide by the law and when not to be law abiding. The executive ought at all limes to respect the law and follow legal procedures. It is the challenge of the government to govern by example.
In my view, the attitude of the Appellant and 1st Respondent to the law, as demonstrated in the facts of the present appeal and the facts of the suits at the lower court from which this appeal arose even though not the facts of the present appeal, are condemnable acts and I discourage it in the strongest of terms. The fight against corruption is our collective responsibility as a society. Our acts of corruption, bribery and other acts of injustice have rendered our people homeless, hungry, sick, ignorant and defenseless. We should all therefore strive and eschew corruption.
Notwithstanding, I refuse to allow the obiter above to affect my consideration of the issues formulated for determination in the present appeal, which are strict issues of law. Therefore legally issues 4 & 5 are so resolved in favour of the respondent.
The grant of an application for stay of proceedings by a court is discretionary and always judicial; it is based on the facts of a case and the interest of justice. In my firm view, it is not in the interest of justice to grant a stay of the proceedings in the present case, as the essential facts necessary to support the application for example the issue of immunity etc is not in issue on the appeal before the court. I refer to the decision of this court in the case of, BILBIS -VS- A.G. ZAMFARA STATE (2003) 9 NWLR (PT 826) 624 AT 641 E-F where it was held on the nature of grant or refusal of stay of proceedings pending appeal:-
“The grant or refusal of an application for stay of proceedings pending appeal is entirely an exercise of judicial discretion on the basis of the peculiar facts of each case as presented to the court which will take into account what the justice of the case demands.”
Further in the interest of justice which must not be unduly delayed, the appellant should not be further deprived the access to justice or speedy trial in an appropriate court, for justice delayed is justice denied. Finally, I affirm the decision of the lower court and also dismiss the appeal.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment of my learned brother Adamu JCA, which has just been delivered I agreed with the reasoning and conclusion therein.
Section 77 of the Criminal Procedure Act 2004 regulates the method of instituting criminal proceedings at the High Court. For avoidance of doubt let me reproduce the provision of S. 77 of the Criminal Procedure Act as follows:-
“Subject to the provisions of any other enactment, criminal proceedings, may in accordance with the provisions of this Act be instituted
(a) In Magistrate’s Courts on a complaint whether or not on oath; and
(b) In the High Court-
(i) by information of the Attorney-General of the suite in accordance with the provisions of S.72 of this Act, and
(ii) by information filed in the Court after the accused has been summarily committed for perjury by a Judge or magistrate under the provisions of part 31 of this Act, and
(iii) by information filed in the Court after the accused has been committed for trial by a Magistrate under the provisions of part 36 of this Act, and
(iv) on complaint whether on oath or not.”
The opening words of this section clearly show that its provisions are not absolute. They are subject to the provisions of my other enactment. This position is further strengthened by the use of the words ‘may’ in the opening paragraph of the said section. Even at the risk of repetition let me reproduce the opening paragraph thus:-
“Subject to the provisions of any other enactment, criminal proceedings may in accordance with the provisions of this Act be instituted…”(Italic is mine)
The Federal High Court Act among other things regulates the conduct of criminal trials at the Federal High Court and Section 33 (i) of the said Act, brings the provisions of the Criminal Procedure Act into conformity with the provisions of the Federal High Court Act. Subsection 2 of the said Section 33 of the Federal High Court Act provides for trial summarily or all criminal causes or matters before the Federal High Court. By summary trial, an accused person can be arraigned for trial at the Federal High Court on charges or complaints.
The Appellant having been arraigned on a forty (40) counts charge at the Federal High Court was so properly arraigned in substantial compliance with S.77 of the Criminal Procedure Act.
On the Issue of whether the lower Court was right to have refused to stay or strike out the suit before it to allow the conclusion of the constitutional matters pending before the High Courts in Bayelsa and Abuja respectively to be concluded, the Appellant attempted to prove through exhibits OD1-OD4 that he had challenged his removal as Governor of Bayelsa State. Exhibits OD1 – OD4 are public documents which were not certified. The Court below rightly refused to accord them any semblance of legality. Since these exhibits were the only connecting factors to the alleged pending cases in Yenagoa and Abuja, it follows that there was no proof that the Appellant had pending matters at Yenagoa and Abuja. The Court below was therefore right to have refused to stay the criminal case pending before it.
This and the more detailed reasons contained in the lead judgment, I too dismiss this appeal and affirmed the ruling of the lower Court which was delivered on the 23rd day of December, 2005.
Appearances
Prof. A. B. Kasunmu, SAN (With him, Tunde Osundare) – for the 1st Accused/AppellantFor Appellant
AND
Rotimi Jacobs (with him, A. Adeniyi, O. Odebowale, and A. M. Akaniga) -for the 1st Respondent
Steven I. Oke (holding brief for Chief Mike Ozekhome) (with him, Mohammed S. Ali, C. Ifengwen and J. E. Aghidi) -for the 2nd – 4th Respondents
Nkwem Anedu (Mrs.) – for the 5th – 8th RespondentsFor Respondent
