COL. MOHAMMED SAMBO DASUKI (Rtd.) v. FEDERAL REPUBLIC OF NIGERIA & ORS
(2018)LCN/12453(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2018
CA/A/159c/B/2017
RATIO
COURT AND PROCEDURE: WHETHER THE COURT CAN MAKE DECISION ON ACADEMIC QUESTION
“…it is settled law that the power of the Court to make binding declarations of right is discretionary and the Court will refuse to exercise such jurisdiction to determine academic or hypothetical questions: see Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edn, p. 384. The cases of Chukwuma v. Shell Petroleum Development Co. of Nig. Ltd (1993) 4 NWLR (PT 289) 512 @ 553 (S.C), and Plateau State v. A.G. Federation (2006) 3 NWLR (PT 967) 346 @ 419 (S.C.) referenced by learned senior counsel for appellant are also inapplicable as there were at all times live issues for determination in those cases.” PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
COL. MOHAMMED SAMBO DASUKI (Rtd.) Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. OLISA METUH
3. DESTRA INVESTMENTS LIMITED Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment):
This interlocutory appeal by appellant, a subpoenaed witness, is against the 25/10/2017 ruling of Okon Abang, J., of the Federal High Court, Abuja Judicial Division. In the said ruling, the learned trial judge refused to grant appellant’s motion for him to set aside the subpoena ad testificandum (subpoena to testify) issued against appellant by him on the orders of this Court to testify on behalf of second respondent in Charge No FHC/ABJ/CR/05/2016 pending in the Federal High Court against 2nd and 3rd respondents. Appellant sought in the alternative an order to suspend the execution or further execution of the said subpoena. Abang, J., declined granting the prayer and rather struck out the motion on the grounds that he lacked the jurisdiction to review the said judgment of this Court of 29/09/2017 in Appeal CA/A/159C/2017- OLISAH METUH & ANOR. V. F.R.N., which had incidentally overturned His Lordship’s own ruling and had ordered that the appellant was a compellable witness at the instance of 2nd respondent, and that appellant as a non-party to the charge ought to have sought and obtained leave of Court to bring his application.
Being dissatisfied with the said ruling, the appellant lodged the instant appeal on three grounds on 26/10/2017.
It is worthy of mention that, it is common ground that appellant has since after the filing of this appeal testified for 2nd respondent in the said case in obedience to the subpoena and even long discharged. He nevertheless trudges on with this appeal.
From his three grounds of appeal appellant framed the following two issues for determination by this court:
1. In consideration of the Order made by the Court of Appeal in Appeal No. CA/A/159C/2017 and the divergent circumstances presented in the motion filed by the appellant on 20/10/2017, whether it was appropriate for the trial Court to decline jurisdiction on the said motion, especially on the ground that there was no live issue in it and same had the tendency of urging for a review of the Court of Appeal?s decision.
2. Given that failure to honour a subpoena of Court attracts penal consequences, and in view of the fact that same was issued by the trial Federal High Court on 3rd October 2017 against the appellant’s interest, whether the leave of Court is required for the appellant to consequently bring an application to challenge the said subpoena.
First and second set of respondents also framed two similar issues each for determination. As their issues are hardly different from those of appellant even in choice of words, I deem it unnecessary to set them out here.
In arguing appellant’s issue 1, his counsel Raji Ahmed, S.A.N., first referred us to the Order of this Court in CA/A/159C/2017 as shown in the lead judgment of Ige, J., where in upturning the earlier ruling of Abang, J., and refusing 2nd respondent’s application to issue subpoena on appellant, had held that:
AN Order is hereby further made by way of executing the subpoena already filed at the lower Court as aforesaid directing the Director General, Directorate of State Security Services to produce and ensure the attendance at the Federal High Court, the Court trying the appellant, Colonel Mohammed Sambo Dasuki (Rtd.) the former national Security Adviser currently in custody of the Directorate of State Service on the date to be specified in the subpoena aforesaid and any other subsequent date or dates of adjournment to testify as a witness for the 1st defendant in this charge.
Learned senior counsel argued that having regard to what he called ‘the very hard facts on record’ in this case it was inappropriate of the lower Court to invoke the provisions of Section 287 of the 1999 Constitution of this Country making judgments and Orders of this Court binding on the lower Court to decline jurisdiction, consequently ‘the straitjacket principle’, as he put it to the effect that a lower Court cannot review the decision of a higher Court did not apply in this case. Learned senior counsel admits recognizing the reason upon which the Order of this Court earlier reproduced was made but argued further nevertheless that the making of the said order by this Court may have been traceable to the one-way presentation of facts before it by 2nd respondent on need for appellant to give evidence in the charge pending against him at the lower Court. No consideration, counsel argued, was given to the fact that appellant currently stands trial in different Courts on charges the substance of which forms the predicate offences in the amended Charge No: FHC/ABJ/CR/05/2016 upon which 2nd respondent stands trial. The Order of this Court to the lower Court to issue subpoena against appellant, counsel complained, also failed to take into account appellant?s appeals pending before the Supreme Court in SC.617/2016 and SC. 618 contained and shown in the records of this appeal. Counsel submitted that all these complaints were presented to the lower Court but it was un-persuaded by them on the ground mainly that this Court had directed so there could no departure given the provisions of Section 287 of the 1999 Constitution. He reproduced the reasoning of the trial Court which was as follows:
‘From the argument of the learned senior counsel for the applicant, it seems to be that the applicant is dissatisfied with the order of the Court of Appeal compelling him to attend this Court to give evidence at the instance of the 1st defendant. If this is the position, then the applicant Col. Dasuki is expected to know what to do and where to go, certainly not to come before this Court with an application of this nature that is fundamentally and foundationally deficient. The application has the tendency of urging this Court to review the judgment of the Court of Appeal. This is a legal impossibility. Again, I have no jurisdiction to entertain this application. I completely agree with the learned counsel for the prosecution that an attempt to do this will amount to judicial anarchy. Signing a witness summons was made pursuant to the Order of the Court of Appeal which this Court is entitled to under provisions of Section287(2) of 1999 Constitution (as amended).’
Learned counsel submitted that the learned trial judge was wrong as deciding appellant’s motion on its merit would not have amounted to reviewing the Order of this Court, because the said motion was dissimilar to the Judgment and Order of this Court. He referred to the charges against 2nd respondent in the lower Court as well as that against appellant before the Federal Capital Territory High Court in Charge No FCT/CR/42/2015. Counsel cited some decided cases to submit that the Court has power to distinguish cases and the trial judge should have done so in this case. Learned counsel next reproduced the subpoena issue by the lower Court and argued that it was not directed to appellant but rather to the Director-General of the State Security Service commanding him to ensure the attendance of appellant at the Federal High Court. Counsel argued that since there was no subpoena on appellant despite the decision of this Court that appellant was a compellable witness, appellant was under no legal obligation to appear before the lower Court to testify neither would he be liable to penal consequences if the subpoena was flouted, for which counsel referenced Section 253(1) of the Evidence Act 2011. Where a statute has provided for a particular procedure for doing a thing, counsel argued, no other procedure can be adopted. Counsel finally prayed us to resolve this issue in favour of appellant.
On issue 2, counsel argued that a subpoena to compel appellant to testify would directly affect his constitutional right to fair trial and hearing in the charges against him in the High Court as well as his appeals at the Supreme Court. Counsel argued that it was not quite correct that appellant was not a party to the charge against 2nd respondent.
He reproduced the contribution of Agim, JCA, in Appeal No: CA/A/159C/2017 to submit that the charges against 2nd respondent in the lower Court mentioned appellant by name so he was ‘a co-accused in disguise’. Citing Annah & Ors v. Uso & Ors (2010) LPELR-3777 (C.A.) counsel argued that parties include not only those on record but also those who have direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and join as a party but chose not to do so, or were contented standing-by and seeing their interest in the suit fought by someone else, or even testify in the case as witness. It was thus submitted that even though appellant is not a party to the charge before the lower Court, there was no need for him to seek leave to bring his 20th October 2017 motion since that Court made an order that affected his constitutional right to fair hearing under Section 36 of the 1999 Constitution. It was therefore not correct to suggest that appellant was busybody. Counsel not only urged us to resolve this issue too in favour of appellant, he also prayed us to allow the appeal and go further to exercise the powers of rehearing vested on this Court by Section 15 of the Court of Appeal Act 2004 to hear and determine on its merits appellant’s said motion of 20th October 2017 since parties had exchanged affidavits and addresses and the lower Court had also earlier directed that there was no need to even file written addresses.
In opposition, first and second respondents in their briefs both argued that the lower Court was right in its decision that it lacked jurisdiction to entertain appellant’s motion as it was bound by rules of stare decisis and Section 287 of the 1999 Constitution of this country to comply with the 27th September 2017 judgment and Order of this Court. The lower Court lacked the power to review it, they both submitted. They reminded us that appellant has not even appealed the said judgment of this Court which remains binding. Appellant, it was also argued, was not a party to the charge before the lower Court. At best they submitted, he was an accomplice, but certainly not a party with a right to directly make an application to set aside an order. First respondent in particular reminded us that appellant has already testified in the lower Court and discharged so this appeal is now spent and a mere academic exercise. Both respondents urged us to dismiss the appeal for lacking in merit.
Mr. Ahmed Raji, S.A.N. filed replies to the arguments of respondents but only largely succeeded in using same to do a recap of his earlier arguments. The only extra argument of note he made in those briefs was to say that even though appellant has testified, this appeal was not academic as issues of public policy had been raised in the appeal. Besides, he argued, declaration could be made even when the reliefs have been rendered unnecessary by lapse of time of the action, if at the time the action was brought it raised substantial issues of law. He cited the cases of Chukwuma v. Shell Petroleum Development Co. of Nig. Ltd (1993) 4 NWLR (PT 289) 512 @ 553 (S.C) and Plateau State v. A.G. Federation (2006) 3 NWLR (PT 967) 346 @ 419 (S.C.) in support of the last point and urged us to discountenance 1st respondent’s arguments on this issue.
There is no doubt that shorn of embellishments and gloss, the central issue in this appeal revolves around the execution of the judgments and Orders of this Court by Courts below it, in this case the Federal High Court.
The issue before the lower Court was whether given the Order of this Court in its Judgment of 29/09/2017 in Appeal No: CA/A/159C/2017- OLISAH METUH & ANOR. V. F.R.N., that ‘An Order is hereby further made by way of executing the subpoena already filed at the lower Court as aforesaid directing the Director General, Directorate of State Security Services to produce and ensure the attendance at the Federal High Court, the Court trying the appellant, Colonel Mohammed Sambo Dasuki (Rtd.) the former national Security Adviser currently in custody of the Directorate of State Service on the date to be specified in the subpoena aforesaid and any other subsequent date or dates of adjournment to testify as a witness for the 1st defendant in this charge,’ Abang J. had any discretion in the matter than to obey it. His Lordship said he did not have any jurisdiction than to act as directed by this Court. He said as follows in dismissing appellant’s motion:
‘From the argument of the learned senior counsel for the applicant, it seems to be that the applicant is dissatisfied with the order of the Court of Appeal compelling him to attend this Court to give evidence at the instance of the 1st defendant. If this is the position, then the applicant Col. Dasuki is expected to know what to do and where to go, certainly not to come before this Court with an application of this nature that is fundamentally and foundationally deficient. The application has the tendency of urging this Court to review the judgment of the Court of Appeal. This is a legal impossibility. Again, I have no jurisdiction to entertain this application. I completely agree with the learned counsel for the prosecution that an attempt to do this will amount to judicial anarchy. Signing a witness summons was made pursuant to the Order of the Court of Appeal which this Court is entitled to under provisions of Section 287(2) of 1999 Constitution (as amended).’
This reasoning cannot be faulted at all, for not only is that Court bound by the doctrine of judicial precedents to follow the decisions of this Court, Section 287(1) of the 1999 Constitution of this Country further requires that:
S. 287(1) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Court of Appeal.
The Federal High Court in issue one is such Court with subordinate jurisdiction to this Court enjoined by this provision to enforce the orders of this Court. His lordship therefore had no option than to obey the said 29/09/2017 Order of this Court earlier reproduced without any alteration. To that extent it even seems to me that the application of appellant before the lower Court and even this appeal, I dare say, all border on frivolity and abuse of process of Court as they have no iota of law to support them. They all seem designed to put the lower Court in collision course with this Court. If the appellant feels he is affected by, and so is a person interested in the judgment of this Court commanding the lower Court to issue subpoena on him, he ought to know what to do rather than go to the lower Court and urge it to disobey the order of this Court, which is the direct purport of his motion, shorn of sugarcoating.
I am also in complete agreement with respondents that in so far as appellant has testified before the lower Court in obedience to the subpoena and even discharged, this appeal is spent and has become academic. His argument that the appeal involves public policy issues and that the Court can make declaration even when the relief sought has been rendered unnecessary by lapse of time is also of no avail too. Not only was a declaration not sought by appellant in his 20th October 2017 motion, as what he simply sought there was an order setting aside the order to subpoena on him, but even if a declaration was sought, it is settled law that the power of the Court to make binding declarations of right is discretionary and the Court will refuse to exercise such jurisdiction to determine academic or hypothetical questions: see Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edn, p. 384. The cases of Chukwuma v. Shell Petroleum Development Co. of Nig. Ltd (1993) 4 NWLR (PT 289) 512 @ 553 (S.C), and Plateau State v. A.G. Federation (2006) 3 NWLR (PT 967) 346 @ 419 (S.C.) referenced by learned senior counsel for appellant are also inapplicable as there were at all times live issues for determination in those cases.
In the final analysis, I see no merit whatsoever in this appeal and accordingly dismiss it in its entirety.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO JCA was kindly made available to me in draft. I wholly agree with the reasoning and conclusion reached therein. I fail to seem any scintilla of merit in the appeal, and accordingly dismiss the same.
Appearances:
Adeola Adedipe Esq. with him, Miss Idongesit Antai, Dolapo Alege Esq. and A. Ogbonna Esq.For Appellant(s)
Sylvanus Tahir Esq. with him,
Funke Durojaiye Esq.,
Raheematu Usman Esq. and Victor Ubaka Esq.- for 1st Respondent.
Obinna Onyia Esq. – for 2nd Respondent.
Onwe Francis Esq. – for 3rd Respondent.For Respondent(s)
