FRN v. KANU
(2022)LCN/16693(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, October 28, 2022
CA/ABJ/CR/625/2022(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
FEDERAL REPUBLIC OF NIGERIA APPELANT(S)
And
NNAMDI KANU RESPONDENT(S)
RATIO
THE POSITION OF LAW ON JURIDICAL DISCRETION
It is settled law that the grant or otherwise of this type of application is at the discretion of the Court. The Court’s discretion is never exercised in vacuo. A judicial discretion is the power exercised in a manner which appears to be just and proper under a given situation.
It is well settled in our law that the Court’s discretion is exercised in accordance with rules of law and justice. It is meant to be in accordance with what is fair and equitable under the peculiar circumstances of the particular case guided by the spirit and principles of law. See the cases of Union Bank of Nigeria Plc. v. Astra Builders (WA) Ltd. (2010) 5 NWLR (Pt. 1186) 1; Owners of the M.V. Lupex v. Nigerian Overseas Chartering & Shipping Ltd. (2003) LPELR – 3195 (SC). It is no doubt well understood that the relief sought in this application is equitable relief. Once it is bordering on discretion, the law is clean, clear that it must be exercised judicially and judiciously having regard to the facts and circumstances of the case. In the case of Ajuwa & Anor. v. SPDC Nig. Ltd. (2011) LPELR – 8243 (SC), the Supreme Court per Fabiyi, JSC, gave the meaning and nature of judicial discretion as follows:
“Judicial discretion is a sacred power which inheres to a Judge. It is an armour which the Judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands inter alia, that administration of justice shall be discharged without any form of prompting by the parties. Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v. Whitman R. 11, 431 A. 2d 1229, 1233; Black’s Law Dictionary, Sixth Edition page 466”. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice brought pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2021, Section 17 of the Court of Appeal Act, 2004 and the inherent jurisdiction of this Court, the Applicant prayed this Court to grant the following relief:
1. An ORDER for stay of execution of the judgment delivered by the Court of Appeal, Abuja Division on the 13th day of October, 2022 in Appeal No: CA/ABJ/CR/625/22 between Nnamdi Kanu vs. The Federal Republic of Nigeria presided by Hon. Justice Jummai Hannatu Sankey, pending the hearing and final determination of the Appellant’s/Applicant’s appeal against the said judgment.
2. AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances.
The Grounds upon which the Application is anchored are as follows:
1. On the 13th of October, 2022, this Honourable Court delivered judgment in Appeal No: CA/ABJ/CR/625/2022 between Nnamdi Kanu vs. Federal Republic of Nigeria, whereat the Court discharged the Respondent of the charges preferred against him by the Appellant/Applicant.
2. The Appellant/Applicant being dissatisfied with the aforesaid judgment of this Honourable Court delivered on the 13th of October, 2022 has filed a Notice of Appeal to the Supreme Court against the said judgment.
3. The Notice of Appeal contains substantial and arguable points of law for determination by the Supreme Court.
4. There is need to stay the execution of the judgment of this Honourable Court to avoid a situation where the judgment of the Supreme Court will be overreached and rendered nugatory.
5. There are special and exceptional circumstances warranting the grant of this application.
6. It is in the interest of substantial justice and equity to grant the instant application.
The Motion is supported by an Affidavit of 5 paragraphs deposed to by one Loveme Odubo of the Department of Public Prosecutions in the office of the Attorney-General of the Federation, Federal Ministry of Justice. Filed along with the Application is a Written Address also filed on 18/10/2022.
In opposition to the Motion, the Respondent filed a Counter-Affidavit of 5 paragraphs deposed to by one Sir Ifeanyi Ejiofor, Esq, Principal Partner in the Law Firm of L C. Ejiofor & Co; of Counsel for the Respondents under the leadership of Chief Mike Ozekhome, SAN. The said Counter-Affidavit was filed on 21/10/2022. It is also supported by a Written Address also filed on 21/10/2022.
I have carefully and soberly read and reflected on the Motion on Notice, the various Affidavits for and against the Motion, the arguments of counsel and the accompanying exhibits. The facts in support of this motion are well captured in the Affidavit and Counter-Affidavit filed by the parties. The summary of it is simple and straightforward. On the 13th of October, 2022, this Court delivered the judgment in Appeal No: CA/ABJ/CR/625/2022 Between: Nnamdi Kanu v. The Federal Republic of Nigeria where this Court discharged the Respondent of the charge pending against him at the Federal High Court, Abuja Division. The Appellant/Applicant being dissatisfied with the aforesaid judgment filed an appeal to the Supreme Court vide a Notice of Appeal dated 17th day of October, 2022 and filed on 18th day of October, 2022. See Exhibit “A” annexed to the affidavit in support of this application. It is sequel to the appeal filed that the Appellant/Applicant has filed this motion for Stay of Execution of the order of this Court.
In his written address, the learned Director of Public Prosecution who is the counsel for the Appellant nominated one issue for determination. The issue is:-
“Whether the Appellant/Applicant has shown special circumstances to entitle it to the discretion of this Honourable Court in granting the reliefs being sought for by this application”.
Similarly, the learned Senior Counsel for the Respondent picked a sole issue for determination. The issue is in context the same with that of the Appellant. The issue of the Respondent is couched as follows:
“Whether the applicant is entitled to the equitable relief sought in the instant application, in the circumstances of this case”.
It is settled law that the grant or otherwise of this type of application is at the discretion of the Court. The Court’s discretion is never exercised in vacuo. A judicial discretion is the power exercised in a manner which appears to be just and proper under a given situation.
It is well settled in our law that the Court’s discretion is exercised in accordance with rules of law and justice. It is meant to be in accordance with what is fair and equitable under the peculiar circumstances of the particular case guided by the spirit and principles of law. See the cases of Union Bank of Nigeria Plc. v. Astra Builders (WA) Ltd. (2010) 5 NWLR (Pt. 1186) 1; Owners of the M.V. Lupex v. Nigerian Overseas Chartering & Shipping Ltd. (2003) LPELR – 3195 (SC). It is no doubt well understood that the relief sought in this application is equitable relief. Once it is bordering on discretion, the law is clean, clear that it must be exercised judicially and judiciously having regard to the facts and circumstances of the case. In the case of Ajuwa & Anor. v. SPDC Nig. Ltd. (2011) LPELR – 8243 (SC), the Supreme Court per Fabiyi, JSC, gave the meaning and nature of judicial discretion as follows:
“Judicial discretion is a sacred power which inheres to a Judge. It is an armour which the Judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands inter alia, that administration of justice shall be discharged without any form of prompting by the parties. Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v. Whitman R. 11, 431 A. 2d 1229, 1233; Black’s Law Dictionary, Sixth Edition page 466”.
The Applicant in the Written Address argued inter alia that the competing rights of the parties to justice must be taken into consideration. He contended that there must be special and exceptional circumstances to show why the successful party, who is entitled to the fruits of his victory, should be deprived of such. He submitted that this must be weighed with the collateral circumstances which may unless the proceedings are stayed result in the destruction of the res and thereby render a successful appeal nugatory. The Applicant cited the cases of Akilu v. Fawehinmi (1989) 5 NWLR (Pt. 102) 122; Usani v. Duke (2004) 7 NWLR (Pt. 87) 116; Nasco Mgt. Serv. Ltd. v. A.N. Amaku Trans. Ltd. (2003) 2 NWLR (Pt. 804) 290.
In his own Written Address, the learned Senior Counsel for the Respondent submitted in his argument that the Applicant is in breach of the Order of this Court and should not be indulged by the Court in this application for stay of execution. He relied on the case of Umar v. APC (2018) 18 NWLR (Pt. 1630) 139; Military Governor of Lagos State & Ors. v. Ojukwu & Anor. (1986) LPELR – 3186 (SC) and Abubakar v. A.G; Kano State & Anor. (2019) LPELR – 48970 (CA).
He argued also that there was no valid appeal as is required to warrant a motion for stay of execution pending appeal. He relied on the cases of Dickson Ogunseinde Virya Farms Ltd. v. Societe Generale Bank Ltd. (2018) LPELR – 43710 (SC), Williams & Anor. v. Adold/Stamm Int’l. (Nig.) Ltd. & Anor. (2022) LPELR-56593 (SC). He contended that the Notice of Appeal shows there are issues of mixed law and facts and that leave of this Court was required for any appeal on it to the Supreme Court and that without leave, the appeal would not be valid.
Let me expressly say here that the issue of the status of appeal as to whether the appeal is competent or otherwise is not for this Court to consider as the appeal is to the Supreme Court. Any challenge to the notice of appeal filed can only be addressed by the Supreme Court when the appeal is ripe for hearing at the Supreme Court. All that the law allows this Court to do at this stage is to look at the notice of appeal filed and determine whether the notice shows prima facie existence of substantial and arguable issues especially on fundamental issues like jurisdiction. The main business of this Court in respect of this application for stay is to follow established guiding principles for the consideration of the application for stay of execution. In the first place, an order of stay of execution pending appeal can only be granted in respect of executory judgment or Order, see the case of Okoya & Ors. v. Santili & Ors. (1990) LPELR- 2504 (SC); Olabomi & Anor. v. Oyewinle & Ors. (2013) LPELR – 2504 (SC).
Secondly, the applicant for an order of stay of execution must show special and exceptional circumstances to warrant the grant of stay.
Thirdly, the Court must take into account the competing rights of the parties and exercise its discretion judicially and judiciously which means the exercise must be for sound and convincing reasons having regards to the facts and circumstances. See Ajuwa & Anor. v. The SPDC (2011) LPELR – 8243 (SC). In the case of Nwabueze v. Nwosu (1988) LPELR – 2081 (SC), the Supreme Court while considering the guiding principles for the grant of a stay of execution held per Obaseki, JSC, that:
“The Court has discretion to grant stay of execution on being satisfied that there are exceptional circumstances which warrant the exercise of the Court’s discretion in the applicant’s favour when execution would: (1) destroy the subject matter of the proceedings; (2) foist upon the Court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal; (3) paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal; or (4) generally provide a situation in which whatever happens to the case, and in particular, even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo. “See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77, 81/82 (1972) 1 All NLR (Part 2) 483 at 487; A. U Deduwa & 3 Ors. v. E. A. Okorodudu & 13 Ors. (1974) 6 SC. 21, 24-26 Kigo (Nigeria) Ltd. v. Holman Brothers (Nigeria) Ltd. (1980) 5/7 SC. 60 at 70”.
The Court had in Vaswani Trading Co. v. Savalakh & Co. (supra) expatiated on the connotation of what is meant by special circumstances as follows:
“When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the Court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the cases, and in particular even if the Appellant succeeds in the Court of Appeal, there could be no return to the status quo. All rules governing stay of actions or proceedings, stay of executions of judgments or orders and the like, are but corollaries of this general principle and seek to establish no other criteria than that the Court, and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the Court of assume that role”.
In the instant application, the Applicant in paragraphs 5(a) to 5(e) of the Affidavit in Support, deposed that:
a. The Notice of Appeal contains substantial and arguable points of law for determination by the Supreme Court.
b. That the Respondent is a flight risk person given his previous established criminal antecedent of jumping bail at the trial Court.
c. That the Respondent is a dual citizen of both Nigeria and Britain, which will make it easy for him to move out of Nigeria and escape justice.
d. That the Respondent’s presence will be difficult to secure if the judgment of the Court below is overturned and set aside by the Supreme Court.
e. There is need to stay the execution of the judgment of this Honourable Court to avoid a situation where the judgment of the Supreme Court will be overreached and rendered nugatory.
A look at the Notice of Appeal annexed to the Affidavit as Exhibit A shows clearly that the appeal is against the whole judgment of this Court including the consequential order to discharge the Respondent. The seven grounds of appeal shown of the particulars and the reliefs read as follows:
GROUND ONE:
The Court below erred in law when it held that the trial Court had no jurisdiction to try the Respondent because of the extraordinary rendition of the Respondent notwithstanding the copious provision of Section 94 of the Administration of Criminal Justice Act, 2015 and Section 32 of the Terrorism (Prevention) (Amendment) Act, 2013 contained in pages 186 and 187 of the records of Appeal before the Court.
GROUND TWO:
The Court below erred in law when it delved into the substantive matter pending before the trial Court at a preliminary stage of an interlocutory appeal and occasioned a miscarriage of Justice.
GROUND THREE:
The Court below erred in law when it failed to be bound by established judicial precedent on mode of “entry” of a defendant charged with the commission of an offence established by the Supreme Court.
GROUND FOUR:
The learned Justices of the Court below erred in law when they relied heavily on the Organization of African Union’s Conventions on the prevention and combating of Terrorism, The African Commission on Human and People’s Right and cases decided from Foreign Jurisdictions as against the substantive law covering the criminal procedure in Nigeria (ACJA, 2015).
GROUND FIVE:
The Court below erred in law when it discharged the Respondent of the offences mentioned in counts 1, 2, 3, 4, 5, 8 and 15 bordering on Terrorism offences contained in the amended charge dated 14th January, 2022 and retained by the trial Court for want of jurisdiction.
GROUND SIX:
The Court below erred in law and occasioned a miscarriage of justice when the Court failed to take into account that it was the illegality of the Respondent’s act of jumping bail and his refusal to make himself available for trial that ignited his return back to Nigeria by the Appellant who had the duty to bring him before the Court to answer the charges preferred against him.
GROUND SEVEN:
The learned Justices of the Court below erred in law and occasioned a grave injustice on the Appellant when it held that the extraordinary rendition of the Respondent robbed the trial Court the jurisdiction to entertain the charges pending before that Court even before the Appellant illegally jumped bail and absconded.
4) RELIEFS SOUGHT FROM THE COURT OF APPEAL.
i. AN ORDER setting aside the judgment of the Court below discharging the Respondent.
ii. AN ORDER restoring the charge against the Respondent to be tried at the trial Court.
The Notice of Appeal without doubt has clearly shown substantial and serious arguable issues of law. The seven grounds have in them serious issues raised by this Court which the Supreme Court needs to hear and pronounce on.
On the issue of special circumstances, the Applicant has detailed in his affidavit in support facts that show special circumstances. The Counter Affidavit filed to rebut these facts are laden with hearsay which could not rebut the solid facts placed to enact the special circumstances positively justifying the grant of this application. Under Section 131(1) of the Evidence Act, 2011, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, shall prove that those facts exist. If he fails to do so, his case fails. See CPC v. INEC (2011) LPELR – 8257 (SC).
In the Counter Affidavit, the deponent deposed in paragraph 4 that the source of his information is the Senior Counsel Chief Mike Ozekhome, SAN. But in paragraph 4(d), the deponent switched and stated as follows:
“d. That in specific response to paragraphs 5b, c, d, and e of the Affidavit which the Respondent denies, I state as follows: (Underlining mine).
i. That the Respondent never jumped bail neither is he a flight risk person, nor was any criminal antecedent or jumping bail established against the Respondent before the trial Court.
ii. That the Respondent was always willing and will readily avail himself to establish his innocence to any bogus and phantom charge that are validly brought against him.
The question then is this, is the information within his own personal knowledge now? Then, in paragraph 4(e) the Deponent averred:
e. That in further and specific response to paragraphs 5b, c, d and e of the Applicant’s affidavit which are denied by the Respondent, the Respondent informed me as follows: (Underining mine).
The question is how? It is no longer information from his original source, his senior? The question also is where did he see the Respondent? When did he supply the information? All these are required under Section 115(4) for any affidavit to pass the test of legitimacy and credibility of law.
From the evidence before the Court, the facts supplied by the Applicant have not been rebutted validly by the Respondent to cause this Court to reject or disbelieve the evidence. It is therefore, my conclusion that the evidence supplied by the applicant has shown clearly special circumstances to warrant the grant of this motion for stay.
Learned senior counsel for the Respondent, as an additional authority cited and relied on the case of Nigerian Army v. Gloria Mowarin (1992) 5 NWLR (Pt. 235) 345. I have been able to read the said authority. The facts of that case are fundamentally different from the facts and circumstances of this case. In the Nigerian Army v. Gloria Mowarin case, the Respondent was arrested and detained by the security agents following an abortive coup on the 22nd day of April, 1990 on the bare ground that she was the girlfriend or wife of one of the coup plotters. She was detained by the security agents without any charge or being told of any offence she had committed under the law. She then applied for the enforcement of her fundamental right by declaring her detention unconstitutional, unlawful, illegal, null and void; and that she be released from detention. The trial Court granted her reliefs sought and also ordered that she be released from detention.
In the instant case, the Respondent was arraigned before the Court below, to wit: the Federal High Court on several counts, which included allegations of terrorism, treason, etc. However, this Court found that those charges are incompetent and accordingly discharged him of the charges pending against him at the Federal High Court, Abuja Division. The Applicants who disagree with the decision have filed a Notice of Appeal at the Supreme Court, which has informed this Application. What is for determination before the Supreme Court as the res sought to be stayed is the validity of those charges.
Before rounding up this consideration, I would like to look into the allegation that the applicant was in contempt of this Court and the case of Umar v. APC (wrongly cited by counsel) but I discover that the correct citation of the case is (2018) 18 NWLR (Pt. 1650) 139. Let it be stated that the case of Umar v. APC (supra) is not on all fours with the instant case. They are different moulds and they differ also in context.
In Umar v. APC (supra), the trial Court gave an order, the order was violated by the Appellant in that case. The Appellant therein ignored the order of the Court stopping it from conducting the ward election and in defiance of Court order, she conducted the election. It was after that she came to the appellate Court to seek for order of stay of execution which the Court granted her. In the instant case, the applicant did not ignore the order of this Court but took the legitimate constitutional step to appeal and filed this application before this Court timeously. The right of appeal is constitutional. The choice of the applicant to appeal the judgment of this Court and seek to stay the execution of the Orders of this Court pending appeal cannot in any way be termed contemptuous. The case of Umar v. APC (supra), is therefore, not an authority for the situation in the instant case.
On that note, it is my view, which I hold, that this Application is meritorious. Therefore, the sole issue raised by the Application is hereby resolved in favour of the Applicant. The Application is accordingly granted and I hereby order as follows:
1. THAT the execution of the judgment delivered by the Court of Appeal, Abuja Division on the 13th day of October, 2022 in Appeal No: CA/ABJ/CR/625/2022 between: Nnamdi Kanu vs. The Federal Republic of Nigeria is hereby STAYED pending the hearing and determination of the Appellant’s/Applicant’s appeal against the said judgment by the Supreme Court.
2. THAT the Registry of this Court is to compile and transmit the record of appeal to the Supreme Court within seven (7) days from today.
3. THAT counsel for the parties are to settle the records immediately for transmission to the Supreme Court as ordered herein.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the opportunity of reading in draft, the ruling read by my learned brother, Haruna Simon Tsammani, JCA. I am in total agreement with the reasoning and conclusion reached therein.
I find the application to have merit and is hereby consequently granted. I abide by the orders made therein and make no order as to costs.
BATURE ISAH GAFAI, J.C.A.: I was privy to the reasonings and conclusion expressed in the lead ruling just delivered by my learned brother Haruna Simon Tsammani, PJCA. I adopt those reasonings as mine; by which I too hereby allow the Application in the terms ordered in the lead ruling.
Appearances:
D. E Kaswe, Esq. (Asst. Chief State Counsel, Federal Ministry of Justice), with him, G. C. Nweze, Esq. (Snr. State Counsel, Federal Ministry of Justice) For Appellant(s)
Chief Mike Ozekhome, SAN, with him, Sir Ifeanyi Ejiofor, Esq. and Maxwell Opara, Esq. For Respondent(s)
