DR. SAADU AYINLA ALANAMU v. FEDERAL REPUBLIC OF NIGERIA & ORS
(2019)LCN/12876(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/IL/C.135/2018
RATIO
APPEAL: THAT THE APPELLATE COURT HAS THE RIGHT TO PRESUME CORRECT THE DECISION OF THE LOWER COURT
“Invariably, the law is well-settled, that where the decision of a Court of competent jurisdiction is not apparently illegal or erroneous, the appeal Court would be right to presume that the decision appealed against is correct or rightly made until the contrary is established. See IN RE DIAMOND BANK LIMITED (2002) 17 NWLR (Pt. 795) 120 @ 134 paragraphs G – H; DENTON-WEST VS. MUOMA, SAN (2007) LPELR 8172 (CA) @ 15 paragraphs D – E.”
COURT AND PROCEDURE: EVERY COURT IS THE GUARDIAN OF ITS OWN RECORD
“The law is settled that rules of court made for a particular Court cannot apply to or bind another Court. See Nneji & Ors. vs. Chukwu & Ors. (1988) LPELR-2058 (SC), where Oputa JSC held that: ‘Every Court is the guardian of its own records and the master of its own practice – Cursus curiae est lex curiae – the practice of the Court is the law of the Court. As I observed in Tukur v. Government of Gongola State (1988) 1 N.W.L.R. 39 at p.50, the law and the Rules of practice made for one Court cannot be binding on another Court either higher or lower in the judicial hierarchy.'” PER BALKISU BELLO ALIYU, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT CAN ASCRIBE PROBATIVE VALUE TO EVIDENCE
“The law is now trite that a Court cannot ascribe probative value to the evidence adduced by merely stating ‘I believe’ or ‘I don’t believe’. See Morka V. The State (1998) LPELR-563 (CA) where the point was made thus:. It was in the course of carrying out of evaluation of the evidence adduced in the trial within trial that I found as a fact that the 1st defendant for reasons that I stated was not a credible witness. I do not see how the 1st defendant and Mr. Olomu can elevate this comment to commenting on the substantive case. It is speculative in the extreme to suggest that because the Court found the evidence of the trial within trial to be incredible, the Court cannot conduct the trial dispassionately. Courts of law deal with hard facts and not speculation as was pointed out in AKAH V. ABUH (1988) SC (PT. 11) 355 at 374 when the Court stated thus.” PER BALKISU BELLO ALIYU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
DR. SAADU AYINLA ALANAMU Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. SALMAN SULAIMAN
3. NAMYLAS NIG. LTD Respondent(s)
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the ruling of the Kwara State High Court Ilorin division, delivered on the 26th June, 2018 by Hon. Justice M. AbdulGafar. The Appellant was the 1st accused who was arraigned on an eight (8) counts charge No: KWS/56C/2017 filed against him alongside the 2nd and 3rd Respondents (as 2nd and 3rd accused persons), by the office of the Attorney General of the Federation.
The background facts of the case are that the Appellant was the chairman of the Governing Council of the Kwara State Polytechnic Ilorin. He was also the Chairman of the Tender?s Board of the Polytechnic. He was alleged to have, in his capacity as an employee of the Polytechnic, conferred corrupt advantage on himself by receiving the sum of N5million from the 2nd and 3rd Respondents who were awarded a contract in the Polytechnic. The offences were said to be contrary to various sections of the Corrupt Practices and other Related Offences Act, 2000. The Appellant and 2nd and 3rd Respondents pleaded not guilty to the charge. In proof of the charge, the prosecution called its witnesses including investigation officers from the ICPC office that investigated the case. In the course of the prosecution, the counsel sought to tender the statements of the Appellant, which he wrote at the ICPC office, but the Appellant through his counsel objected to the admission of the statements on the ground that he wrote them under duress. Consequent upon the objection, the trial judge ordered a trial within trial to determine the voluntariness or otherwise of the statements of the Appellant.
In the trial within trial, the prosecution called evidence in proof of the voluntariness of the statements and the Appellant testified in his defence. At the end of the trial within trial, the learned trial Judge in a considered ruling found that the statements were made voluntarily, overruled the objection of the Appellant and admitted them in evidence. Thereafter the main trial proceeded until the prosecution closed its case and adjourned for defence.
However on the adjourned date, the Appellant informed the Court that he had written a petition to the Chief Judge of Kwara State requesting that the case be transferred from the trial Court to another Court on the ground that in the ruling of the trial Judge in the trial within trial, His Lordship had commented that the Appellant was not a credible witness. The Appellant claimed that the learned trial Judge?s comment in the ruling means that the trial Judge had virtually convicted him for the offences he was standing trial for. The Hon. Chief Judge declined the request of the Appellant and instead directed him to make his application before the trial Court. The Counsel of the Appellant thus made the application orally praying for the transfer of the case, and learned counsel relied on the case of Charles Vs. F.R.N. (2018) LPELR-43922 (CA) in support of his application.
The 1st Respondent?s counsel opposed the application and argued that the excuse given by the Appellant, as ground for the application was not tenable, and that if the Appellant had any grouse against the ruling of the Court in respect of the trial within trial, he should appeal against that ruling. The learned trial Judge in a considered ruling refused the application to transfer the case and dismissed it.
The Appellant felt aggrieved with the ruling refusing his application for the transfer for transfer of his case to another Judge, and filed his notice on the 10th October, 2018 in compliance with the order of this Court made on that date pursuant to his motion No: CA/IL/C.M. 77A/2018. The record of appeal was transmitted on the 29th October, 2018, while an additional record of appeal was further transmitted on the 13th December 2018. The Appellant?s brief of argument settled by Abdulfatai Salman Esq., was filed on the 12th December, 2018 in which he submitted a single issue for determination of the appeal as follows:
Whether the learned trial Judge can rely on S. 98(2) of the Administration of Criminal Justice Act to decline the transfer of the case. (Grounds 1 and 2).
The 1st Respondent?s brief of argument settled by Mrs. P. N. Arocha was filed on the 21st December, 2018, wherein the learned counsel submitted the following two issues for determination of the appeal:
1. Whether the trial Court was right in relying on the provision of Section 98(2) of the Administration of Criminal Justice Act 2015 in dismissing the Application of the Appellant for the transfer of the matter to another Court. (Distilled from ground 1).
2. Whether in the ruling delivered on the 17th of April 2018 by the trial Judge on the admissibility of the statements of the 1st defendant, the trial Judge formed opinion that the Appellant is not worthy of any believe (ground 2).
On the 31st January, 2019, when the appeal was called for hearing, A. D. Ahmed Esq., leading S. H. Ajumobi Esq., adopted the Appellant?s brief of argument in praying the Court to allow the appeal and to set aside the ruling of the trial Court. Mrs. P. N. Arocha also adopted the 1st Respondent?s brief of argument in urging the Court to dismiss this appeal in its entirety. The 2nd and 3rd Respondents did not file any brief.
In arguing the Appellant?s lone issue, Abdulfatai Salman Esq., submitted that the Administration of Criminal Justice Act, 2015 (hereinafter referred to as ACJA 2015) is not applicable to the High Court of Kwara State because it had not been ?domesticated? by the State. That ACJA 2015 is applicable only to Federal Courts and the High Court of the Federal Capital Territory Abuja. We were referred to this Court’s decision in Aleshe Vs. F. R. N. (2018) ALL FWLR (pt. 952) 40 at 89 where it was held that ACJA 2015 has replaced the C.P.A. and C.P.C. in all Federal Courts and the FCT High Court in criminal trials. The learned counsel submitted that assuming without conceding that the ACJA 2015 were to be applicable to the High Court of Kwara State, the comment of the learned trial Judge in the ruling in the trial within trial that the Appellant was not a person worthy of belief was a ruling on the substantive matter (main trial). This means that the learned trial Judge had formed an opinion that the Appellant is not worthy of belief, and nothing the Appellant would say in his defence at the main trial that the trial Judge will believe. It was further contended that the learned trial Judge had jumped into the conclusion that the Appellant was guilty of the offence charged before he was allowed to give evidence, thereby infringing the right to fair hearing of the Appellant as provided by Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
We were also referred to this Court’s decision in Charles Vs. FRN (2018) LPELR-43922 (CA), to the effect that the comment of the trial Federal High Court Judge in the trial within trial that the evidence of the Appellant leaves much to desire was a pronouncement on the substantive matter before the Court. It was also the contention of the learned counsel that the comment of the learned trial judge in this case against the Appellant who was yet to testify in his defence amounted to adjudging the Appellant guilty of the offence charged. That even if Section 98(2) of ACJA 2015 is applicable to the proceedings before the trial Court, that section cannot override the Constitutional provisions enshrined in Section 36(1)(6) which guarantees the Appellant’s right to fair hearing. The learned counsel further referred to and relied on the cases of FRN Vs. Akubueze (2011)ALL FWLR (pt. 555) 204 and Victino Fixed OODS Ltd Vs. Ojo (2010) ALL FWLR (pt. 524) 25 in praying the Court to allow the appeal.
On her part, the learned counsel for the 1st Respondent submitted on issue one, that the learned trial Judge rightly relied on Section 98(2) of the ACJA 2015 in dismissing the application of the Appellant, because that sub-section is a proviso to Sub-section (1) of the Section 98, and provides for the chief judge?s power to transfer a criminal case from the trial judge to another shall not be exercised where the prosecution has called witnesses in the case.
In response to whether the ACJA 2015 is applicable to the High Court of Kwara State, the learned counsel submitted that the Appellant was standing trial for breach of the provisions of the Corrupt Practices and other Related Offences Act, 2000, an Act of the National Assembly, therefore by the provisions of Section 2(1) of the ACJA 2015, its provisions are the extant and exclusive operative rules of practice and procedure regulating criminal trials for such offences established by an Act of the National Assembly, such the Corrupt Practices and Other Related Offences Act 2000, on which the Appellant was standing trial at the Court lower Court. It was thus concluded that by the combined effect of Sections 2(1) and 98(2) of the ACJA 2015, its provisions are applicable to the lower Court in this case. See also Section 286(1)(c) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which also support the application of the ACJA 2015 provisions in trial of Federal offences before the State High Courts. We were referred to the case of A.G. Ondo State Vs. A.G. Federation (2002) FWLR (Pt. 111) 1927 at 2036, where the Supreme Court held that laws of the National Assembly will prevail over laws of the State where found to be inconsistent. It was submitted that the learned trial Judge was right in relying on the provisions of Section 98 (2) of ACJA 2015 to dismiss the application for the transfer of the case, because the prosecution had closed its case.
On the authority of the case of Alashe Vs. F. R. N. (supra) referred to by the Appellant in his brief of argument, the learned 1st Respondent’s counsel was of the view that the case is not relevant to this case because this Court did not decide that Section 2 of ACJA 2015 or the Act in general is not applicable to State High Courts with respect to the offences created by the Federal Legislature such as in this case. It was submitted that the principle was applied in the case of A. G. Ondo State Vs. A. G. Fed & 36 Ors (supra) where the Supreme Court held that the Court cannot control the manner in which the Attorney General of the Federation chooses to exercise his powers under Section 174 of the Constitution as an agency of the Government nor can he be prevented from exercising his functions on the ground that his jurisdiction does not extend to any other particular state in Nigeria.
In arguing the 1st Respondent?s issue two, the learned counsel referred us to the ruling of the lower Court at pages 5 to 17 of the additional record of appeal, which was the ruling of the lower Court in the trial within trial, and by which the statements of the Appellants were admitted in evidence, and was submitted that the learned trial Judge properly evaluated the evidence before arriving at the decision to admit the statements of the Appellant in evidence, but instead of appealing the ruling, the Appellant chose to write a petition for the transfer of the case to another Judge on the ground that he believed he had been convicted in the ruling. It was further argued that the decision in Charles Vs. FRN (supra) relied upon by the Appellant is not relevant to his application because the issue in that case was not for the transfer of the case, but an appeal against the ruling on the trial within trial, where this Court held that the trial Judge had made a comment in the substantive charge of conspiracy in the ruling on the trial within trial, while the present case is an application to transfer the case to another Court.
In conclusion, the learned 1st Respondent’s counsel submitted that it is against the interest of justice to allow this appeal because the prosecution had closed its case on the 26th April 2018, while the Appellant refused to open his defence, but sought for an adjournment, in order to delay the conclusion of the trial. It was posited that the application for the transfer of the case was part of the delay tactics of the Appellant to get the case transferred to another Court to start de novo, thereby frustrating the case of the prosecution. Counsel called in aid this Court?s decision in FRN Vs. Hon. Farouk Lawal (2018) LPELR-43973 (CA), to the effect that ACJA 2015 was promulgated to stop delay in criminal trials. We were urged to dismiss this appeal for lacking in merit and to affirm the ruling of the lower Court.
DETERMINATION OF THE APPEAL
It is pertinent to note that the Appellant’s issue one is exactly the same with the 1st Respondent’s issue one, which means that the parties are in agreement with this issue for determination. Though the 1st Respondent submitted additional issue two, but in determining this appeal, I will adopt the lone issue raised by the Appellant, which is also the 1st Respondent’s issue one.
The Appellant’s issue raised the question whether the learned trial Judge was right in relying on the provisions of Section 98(2) in refusing to transfer the case to another Court for trial. In arguing this issue, learned counsel for the Appellant questioned the applicability of the ACJA 2015 to the criminal proceedings of the lower Court. My Lords, as a background observation, it is pertinent to note that the issue of applicability of the ACJA 2015 was not raised or canvassed before the lower Court, and there was therefore no pronouncement made by the lower Court on it. The obvious reason being that the application to transfer the case was made orally, and it is contained at pages 169 to 170 of the record of appeal thus:
4/5/18
Accused in Court.
I. S. Ezeana (ACLO)
ICPC for prosecution
B. Olomo (with A. Salman and S. Ajumobi for 1st accused
H. Buhari (with B. A. Gegele) for 2nd and 3rd accused Olomo: The case is for defence. On behalf of the 1st accused I apply to have this case transferred to another Court for the trial because the accused delivered (sic, believed) he has been convicted in the ruling of the trial within trial where he was described as not credible. The 1st accused had writer (sic) a petition to the Chief Judge to transfer the case but the chief Judge directed that we apply to the Court.
Ezeana: There is no valid reason for the transfer. The excuse that he has been convicted in trial within trial is not tenable. They ought to appeal against the ruling. The 1st accused is prejudging these (sic) matter. The application is brought in bad faith to delay the trial
Buhari: we leave the issue to the Court
Olomu: The reason given is that the comment against the 1st accused touches on the substantive matter. See Charles Vs. F.R.N. (2018) LPELR-43922 CA.
Court: The case is adjourned to 26/6/18 for Ruling.
Sgd.
Hon. Justice M. Abdul Gafar
Judge
4/5/18.
In his ruling on the application, the learned trial Judge relied on Section 98(2) of the ACJA 2015 as one of the reasons to dismiss the application, as shown at page 174 of the record of appeal, wherein the learned trial Judge held as follows:
The next point to address is whether I have the power to grant the application. It appears to me that this application has been made on gross inadvertence to the position of the laws and protocols that govern the present case. The provisions of Section 98(2) of the Administration of Criminal Justice Act 2015 makes it clear beyond peradventure that once the prosecution has called witnesses, the Chief Judge who is vested with the power to transfer the case can no longer exercise the power. How much less the Court that is hearing the case.
The prosecution has not only called witnesses but has indeed closed its case. It was when it was the turn of the 1st defendant to enter his defence that Mr. Olomu who had taken the date to open the defence told the Court at the end of the proceedings that he would not be able to proceed on 27th April 2018 because he had an hospital appointment. It turned out it was a deception practiced on the Court to enable him and his client perfect the strategern (sic, strategy) or writing the petition to have the case transferred. The conclusion I have come (sic, to) is that this Court lacks the vires to transfer this case at its present stage.
It is clear from the above, that the rules of procedure adopted by the trial Court were the ACJA 2015. Section 98 (1) and (2) of the ACJA 2015 provide that:
98-(1) ?The Chief Judge of a High Court may, where it appears to him that the transfer of a case will promote the ends of justice or will be in the interest of the public peace, transfer any case from the Court to another:
(2) The power of the Chief Judge referred to in Subsection (1) of this section shall not be exercised where the prosecution has called witnesses.
Thus, by the above provisions in Subsection (2) of the ACJA 2015, the Chief Judge cannot exercise this power to transfer any case in which the prosecution has called witnesses, whereas the complaint of the Appellant in this appeal is that the trial Judge was in error to rely on the above provisions to refuse the application to transfer the case. The Lagos division of this Court had the opportunity to pronounce upon the applicability of the ACJA 2015 to the Federal Offences that are triable by the State High Courts in Wagbatsoma Vs. FRN (2018) LPELR-43644 (CA), where it held, Per Garba JCA that:
The community effect of the provisions of Section 286(1)(b) and (c) of the Constitution and Section 2 (1) in line with Section 86 of ACJA is that in the trial of federal offences by the State High Courts, the rules of procedure provided by state laws for those Courts, shall be applicable and are to apply.
In other words, even in the exercise of its jurisdiction conferred by any Act of the National Assembly creating a federal offence, a High court of a State is bound to apply its own criminal procedure rules and not the ACJA 2015. This is because by the provisions of Section 2(1) of ACJA 2015, the provisions of the Act are to apply to criminal trials in the Federal Courts and the High Court of the Federal Capital Territory only; and therefore they are not applicable to state High Courts. The law is settled that rules of court made for a particular Court cannot apply to or bind another Court. See Nneji & Ors. vs. Chukwu & Ors. (1988) LPELR-2058 (SC), where Oputa JSC held that:
“Every Court is the guardian of its own records and the master of its own practice – Cursus curiae est lex curiae – the practice of the Court is the law of the Court. As I observed in Tukur v. Government of Gongola State (1988) 1 N.W.L.R. 39 at p.50, the law and the Rules of practice made for one Court cannot be binding on another Court either higher or lower in the judicial hierarchy.”
Therefore the applicable Rules of procedure to the lower Court in this case is the Criminal Procedure Code Law, Cap. C23, Laws of Kwara State (CPCL), regardless of the fact that the trial before it was for a federal offence as defined by Section 286(1)(b) and (c) of the Constitution of Nigeria 1999 (as amended); and regardless of which agency of the Government is prosecuting the offence. This means the learned trial Judge fell in to error to have applied the provisions of Section 98 of ACJA 2015 as one of the reasons for dismissing the application to transfer the case.
However, that was not the only reason why the learned trial Judge refused and dismissed the Appellant?s application. At page 175 His Lordship held that:
Notwithstanding the above, I think I ought to ex abandatia cutela consider the merit of the application in the event that my position of the vires of this Court is not sustained. I have considered the case of Charles v. F.R.N. (supra) and it is clear to me that the same is not an application to transfer the case but an appeal lodged against the ruling in the trial within trial. The Court of appeal took the view that the trial Court in the course of the ruling on the trial within trial made comments on the count alleging conspiracy in the charge before the Court.
The law is now trite that a Court cannot ascribe probative value to the evidence adduced by merely stating ‘I believe’ or ‘I don’t believe’. See Morka V. The State (1998) LPELR-563 (CA) where the point was made thus:. It was in the course of carrying out of evaluation of the evidence adduced in the trial within trial that I found as a fact that the 1st defendant for reasons that I stated was not a credible witness. I do not see how the 1st defendant and Mr. Olomu can elevate this comment to commenting on the substantive case. It is speculative in the extreme to suggest that because the Court found the evidence of the trial within trial to be incredible, the Court cannot conduct the trial dispassionately. Courts of law deal with hard facts and not speculation as was pointed out in AKAH V. ABUH (1988) SC (PT. 11) 355 at 374 when the Court stated thus.
Though the learned trial Court did not refer to it, but Section 147 of the Criminal Procedure Code Law of Kwara State actually empowers the lower Court to transfer a case before it, which was perhaps the reason why the Hon. Chief Judge in responding to the petition of the Appellant directed him to make his application before the lower Court. That Section 147 of the CPCL provides that:
?If an offence of which a Court takes cognizance ought properly to be inquired into or tried by another Court or if in the opinion of the Court taking cognizance thereof the offence might be more conveniently inquired into or tried by another Court, it shall send the case to such other Court.
Therefore the learned trial Judge was empowered and was right to consider the merit of the application of the Appellant. Similarly the analysis made in his ruling of the case of Charles Vs. F.R.N. (supra) was also correct. That case was indeed an appeal lodged against the ruling of the Federal High Court Lagos division, in respect of the trial within trial it conducted. The Lagos division of this Court held, inter alia, that the trial Judge’s comments in his ruling appeared to determine the yet to be concluded substantive trial. The Court cautioned that a trial Court must ensure that it does not make pronouncement or observation at the preliminary stage, which might appear to touch or determine the substantive matter. It is also noteworthy that in that case, the trial Federal High Court evaluated the content of the statement which voluntariness the trial within trial was meant to determine. The trial Judge after evaluation of the the content of the statement (yet to be admitted in evidence), commented that it tallied with the evidence before the Court, upon which he concluded that the statement was a retracted confessional statement.
The question now arises whether the circumstances of this case are the same with the facts in Charles Vs. F.R.N. (supra).
As I have earlier stated, in this case, there is no appeal against the ruling of the lower Court on the trial within trial that was delivered on 17/4/2018, though that ruling is before us through the additional record of appeal, and it is contained at pages 5 to 17 thereof. What is before us, and in contention in this appeal is whether or not the learned trial Judge was right in his decision (quoted above), to refuse and to dismiss the oral application of the Appellant for the case to be transferred to another Court. I have already held that by the provisions of Section 147 of CPCL of Kwara State, the learned trial Judge has the power to transfer the case to another Court.
I find the Supreme Court’s decision in Babarinde & Ors. Vs. State (2013) LPELR- 21896 (SC) relevant to the facts of this case. The Appellants in that case were charged before the Kwara State High Court for the offences of conspiracy and armed robbery. In the course of the trial, the trial Court conducted a trial within trial to determine the voluntariness of the extra judicial statements of the Appellants. In his ruling on the trial within trial, the learned trial Judge commented that, The accused persons in their tortured (sic) position of wandering around their adhered style of telling lies in a desultory fashion and what could be observed on the 3rd accused (DW2) is an improved style of telling lies to block some loop holes created by his comrade in crime. The Appellants contended before the Supreme Court that the trial court referring to them as ‘comrade in crime’ and ‘liars’ was highly prejudicial and demonstrated that they had little or no chance of enjoying the benefit of doubt that they would otherwise be entitled to, thus likelihood of bias existed, which taints the entire proceedings.
Though the Apex Court disapproved of the language used by the trial Court, but it disagreed that the choice of language used by the trial Judge in his ruling on the trial within trial showed likelihood of bias against the Appellants in respect of the substantial trial. The Court held, Per Kekere-Ekun JSC that:
It is necessary to re-iterate that a trial within trial is a complete process in itself within the substantive trial. The trial Court halts the main trial to conduct a mini trial specifically to determine whether or not a confessional statement allegedly made by an accused was made voluntarily. The witnesses in the trial within trial are re-sworn, testified or call additional witnesses if necessary to tender exhibits and the witnesses are subjected to cross-examination and at the conclusion counsel address the Court. The Court delivers its ruling. In the course of delivering that ruling, the Court which had listened to and observed the witnesses on both sides is obliged to give reasons for the conclusion reached. This will include the Court’s opinion on the credibility of the witnesses.
The circumstances in this appeal are similar to the above case of Babarinde & Ors. Vs. State (supra), because it was in the course of analyzing the evidence from the prosecution and the Appellant at the trial within trial that the learned trial Judge disbelieved the evidence of the Appellant who had testified as TWTD1. There was no way that the trial Judge could have arrived at the decision to admit or reject the statements of the Appellants without analyzing the evidence proffered from both sides and ascribing probative value to the evidence based on his observation of the witnesses as they testified. Certainly one side would have more credibility than the other, which will form the basis of the conclusion reached by the lower Court. See FRN Vs. Iweka (2011) LPELR-9350 (SC) where it was held that:
“The evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity of seeing, hearing and assessing witnesses?.? Per GALADIMA, J.S.C (P. 59, paras. A-C)
The timing for the application to transfer the case is also pertinent. At page 174 paragraph 5 of the main record of appeal, the learned trial Judge noted that the prosecution had already closed its case and the Appellant was to enter his defence when the application was made. It is also noteworthy that the ruling on the trial within trial in respect of the statements of the Appellant was delivered on the 17th April 2018 as shown at page 162 of the main record of appeal. Thereafter, the main trial continued, with the PW1 concluding his evidence. The prosecution proceeded and called PW2, PW3 and PW4 who all testified and were duly cross-examined by the Appellant?s counsel, before the prosecution closed its case. It was only then that the counsel for the Appellant sought for adjournment to open the Appellant’s defence only to come back on the adjourned date with the application to transfer the case when the Appellant’s petition to the Chief Judge did not succeed. See the holding of the trial Judge quoted supra at pages 10 to 11 of this judgment.
The Appellant did not make his application to transfer the case after the ruling on the trial within trial he complained of was delivered; nor did he appeal against the said ruling. He participated in the continuation of the main trial and cross-examined three more witnesses called by the prosecution. In these circumstances, I agree with the learned counsel for the 1st Respondent that the application was an afterthought and made in bad faith aimed as frustrating the conclusion of the case.
Let me conclude with the apt observation of Ogakwu J.C.A. in Ecobank (Nig.) Ltd Vs. Anchorage Leisures Ltd & Ors (2018) LPELR-44667 (CA) where His Lordship held that:
The Court is not a timorous institution that would be cowed into ineluctably withdrawing into its shell in a snail-like manner whenever an allegation of bias or likelihood of bias is made against it. If it were so, the society at large and the law in particular would be the worse for it.
In this appeal, I also hold that the learned trial Judge was right to refuse and to dismiss the application for the transfer of the case made by the Appellant. There must be an end to litigation and transferring cases from one Court to another has to be based on concrete reasons, aimed only to serve the end of justice for all the parties in the case. In conclusion, I resolve the lone issue against the Appellant. This appeal failed and it is dismissed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the opportunity of reading, before now, the draft Judgment just delivered by my learned brother, Aliyu, JCA. Having equally perused the briefs of argument f thoe respective learned counsel vis–vis the records of appeal, I hereby lend credence to the reasoning and conclusion reached in the said judgment, to the effect that the instant appeal is grossly devoid of merits, thus ought to be dismissed by this Court.
Undoubtedly, the sole issue canvassed for determination raises the vexed question of whether the Court below was right in relying on the provisions of Section 98(2) of the Administration of the Criminal Justice Act, (ACJA) 2015.
Invariably, the law is well-settled, that where the decision of a Court of competent jurisdiction is not apparently illegal or erroneous, the appeal Court would be right to presume that the decision appealed against is correct or rightly made until the contrary is established. See IN RE DIAMOND BANK LIMITED (2002) 17 NWLR (Pt. 795) 120 @ 134 paragraphs G ? H; DENTON-WEST VS. MUOMA, SAN (2007) LPELR 8172 (CA) @ 15 paragraphs D ? E.
The instant appeal is a typical example of diabolical delay tactics often resorted to by some parties with the sole purpose of stultifying Court proceedings. It would be highly uncharitable, to say the least, for a party or counsel thereof to unjustly impute bias or likelihood of bias against a trial or appellate Court. The use of Court processes by parties with a view to frustrating or delaying the administration of justice by making all sorts of frivolous applications, by seeking unnecessary adjournments have contributed in no small measure to the vast of litigation expenses and frustration to the litigants, create a sorry figure of the lawyer, thereby resulting in generating loss of confidence in the entire judicial system. For as very aptly remarked by the Apex Court over three decades ago:
Lawyers may enjoy the splitting of hairs on obtuse legal points but extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the Appeal Courts.
See BAKARE VS. ACB LIMITED (1986) 3 NWLR (Pt. 26) 47 per Amiagolu, JSC.
Indeed, it is axiomatic, that the importance of a competent, independent, courageous, and impartial judiciary in preserving and upholding the rule of law in a democratic nation cannot be over-emphasised. Undoubtedly, public confidence in the independence of the Courts, in the integrity of the judges and other judicial staff that man such Courts, and in the impartiality and efficiency of the administration of justice, as a whole, play a very vital role in nurturing and sustaining the judicial system of any democratic nation such as Nigeria. I think it was Mr. Justice Frank Furter, that legendary jurist, of all time, who once aptly remarked:
‘The Court’s authority’ possessed of neither the purse nor the sword? ultimately rests on sustained public confidence in its moral sanction.”
See BAKER VS. CARR Supreme Court of USA (1962) 369 US 186. See also DENTON-WEST VS. MUOMA, SAN (2007) LPELR ? 8172 (CA) per Saulawa, JCA @ 37 – 38.
In the instant case, the Court below was absolutely right in standing its ground, thereby refusing to be cowed into submission to the Appellant’s diabolical antics. The Court below, and indeed any Court of law for that matter, has an onerous duty to guard its jurisdiction jealously and courageously in the course of dispensing justice to all manner of parties that appear before it without fear or favour, affection or ill-will.
Hence, I have no hesitation whatsoever in adopting as mine, the reasoning postulated by my learned brother Aliyu, JCA in the said judgment, to the conclusive effect that the instant appeal is devoid of merits, and it is hereby equally dismissed by me.
HAMMA AKAWU BARKA, J.C.A.: The gross of the appellant with regards to this appeal is anchored on the lower Court’s refusal to transfer the case before it to another Court upon the behest of the appellant.
Indeed, the provision of the Administration of Criminal Justice Act 2015 as to whether state High Courts are empowered to use same, when trying Federal offences was considered by my learned brother Garba JCA in Wagbatsoma vs FRN 2018 LPELR-43644, to the effect that State High Courts are not so empowered to depend on the provision of the Act, but must dwell on the Criminal procedure code applicable in the state of trial.
Nevertheless, it smacks of dishonesty for an accused person having participated in his trial up to the point of the prosecution closing its case, to turn round and to ask for the transfer of the case, on the simple reasoning that he perceives bias. The element of bias where not shown on the face of the trial, the lower Court was right to have refused same.
It’s unfortunate to say the least that counsel in his bid to delay the determination of the case, resorted to asking for a transfer as against utilizing the appellate Court to ventilate his discontent, thus employing unholy tactics.
I agree therefore with my learned brother Balkisu Bello Aliyu JCA, in the lead judgment, for reasons adumbrated therein, that this appeal is one bereft of merit, and thereby deserving of a dismissal. I also dismiss the appeal and affirm the decision of Abdul Gafar in charge No. KWS/56c/2017. Dr Saadu Ayinla Alanamu vs Federal Republic of Nigeria and two Ors delivered on the 26/6/2018
Appearances:
A. D. Ahmed, Esq. with him, S. H. Ajumobi, Esq.For Appellant(s)
P. N. Arocha (Mrs.) for the 1st Respondent.
B. A. Gegele with him, Margarate Agwu, Esq. for the 2nd and 3rd RespondentsFor Respondent(s)
