JUSTICE ONNOGHEN NKANU WALTER SAMUEL v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12608(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of January, 2019
CA/A/44C/2019(R)
RATIO
APPEAL: APPLICATION OF STAY OF PROCEEDING
“The application for stay of proceedings also lies where a defendant to an action, after the commencement of proceedings, brings action against the plaintiff in respect of the same or substantially similar subject matter. See Thomson v. South Eastern Railway Co. (1881-2) 9 Q.E.B. 320. Thus in summary, the application for stay of proceedings may be brought where there is an interlocutory appeal or final judgment in an action between parties. It may also be brought where there is a concurrent action between parties in respect of the same or substantially the same subject-matter. Application may also be brought in cross actions between the same parties in an action in respect of the same or substantially similar subject-matter. In all the cases the rationale is that the action ought, in the interest of justice, to be stayed to enable the preservation of the res, the subject-matter of dispute. This discretion exists and may be exercised whether the res is tangible or intangible – See Kigo Nigeria Ltd. v. Holman Bros (Nigeria) Ltd, (1980) 5-7 S. C. 60 at p. 73.” PER ABDU ABOKI, J.C.A.
EVIDENCE: WHETHER EVIDENCE IS CREDIBLE
“Therefore, in determining which is heavier, the Judge will have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant,
(e) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.
The above procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987)3 NWLR (Pt 61) 432 at 451.” PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
JUSTICE ONNOGHEN NKANU WALTER SAMUEL Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Lead Ruling):
The Attorney-General of the Federation had on behalf of the Federal Republic of Nigeria made application to the Chairman of Code of Conduct Tribunal on 11th day of January, 2019 to enable the Respondent commence trial for the offence of failure to submit all assets and liabilities contrary to Paragraph 15 (1) & (2) Code of Conduct Bureau and Tribunal Act, and 11 (1) of the Fifth Schedule Part 1 of the Constitution of the Federal Republic of Nigeria 1999 as amended and punishable under paragraph 18 (1) and (2) of the same Constitution against the Honourable Mr. Justice W. S. Nkanu Onnoghen, GCON.
The Application was accompanied with four copies of the charge and an Affidavit in support. On the same date the request of the complainant was granted. Part of the Order of the Code of Conduct Tribunal which was signed by the Hon. Chairman and the two Honourable members of the Code of Conduct Tribunal reads:
“And upon perusal of the summary of the evidence and or Affidavit in support, as well as accompanying charge, the Tribunal having been satisfied directs that the accused be summoned to appear before the Tribunal and plead to the accompanying charge against him.”
The accompanying charge reads thus:-
“CHARGE
COUNT ONE
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON between 8th June, 2005 to 14th December, 2016 being a public officer serving as a Judicial Officer in the Federal Republic of Nigeria as a Justice of the Supreme Court failed to declare and submit a written declaration of all your assets and liabilities within the prescribed period of three (3) months after being sworn in as the Justice of the Supreme Court of Nigeria on the 8th day of June, 2005 and you thereby contravened the provisions of Section 15(1) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b. and c of the same Act.
COUNT TWO
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declared your Assets in your Declaration of Assets Form CCB 1 (after you were sworn in as the Justice of the Supreme Court of Nigeria) by omitting to declare a domiciliary (US Dollar) account No, 870001062650 maintained with Standard Chartered Bank (Nig,) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) read along with Section 15(1) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2)(a), b, and c of the same Act.
COUNT THREE
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declared your Assets in your Declaration of Assets Form CCB1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) by omitting to declare a domiciliary (Euro) account No, 93001062686 maintained with Standard Chartered Bank (Nig,) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under section 23 (2) a, b, and c of the same Act.
COUNT FOUR
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declare your Assets in your declaration of Assets Form CCB 1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) by omitting to declare a domiciliary (Pound Sterling) account No, 285001062679 maintained with Standard Chartered Bank (Nig,) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b, and c of the same Act.
COUNT FIVE
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, & CON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declare your Assets in your Declaration of Assets Form CCB 1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) by omitting to declare an e-Saver savings (Naira) account No. 5001062693 maintained with Standard Chartered Bank (Nig.) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct Bureau and Tribunal! Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b, and c of the same Act.
COUNT SIX
That you Justice Onnoghen Nkanu Walter Samuel being a public officer as justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely failed to declare in your Declaration of Assets Form CCB 1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) a (Naira) account No. 010001062667 maintained with Standard Chartered Bank (Nig.) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b, and c of the some Act.”
The charge was dated the 10th January, 2019. It is also discernible from the record of appeal that the complainant also filed a motion on Notice dated 10th January, 2019 on 11th January, 2019 before the lower Tribunal pursuant Section 6(6), paragraph 11 (1) of the Fifth Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria 1999 as amended praying for the following orders:-
“(iv) An Interlocutory order directing the defendant/respondent to step aside as the Chief Justice of Nigeria and the Chairman of the National Judicial Council over allegation of contravening the provision of Code of Conduct Bureau and Tribunal Act CAP C15 Laws of the Federation of Nigeria 2004 pending determination of the case.
(v) An interlocutory order of the Honourable Tribunal, directing the President of the Federal Republic of Nigeria to take all necessary measures to swear in the most senior Justice of the Supreme Court as acting Chief Justice and Chairman of National judicial Council in order to prevent a vacuum in the Judicial Arm of Government pending determination of the case. (sic).
(i) For such further interim order(s) as this Honourable Tribunal may deem fit to make in the circumstances of the case.
GROUNDS UPON WHICH THE APPLICATION IS BROUGHT
1. That the defendant is the Chief Justice of Nigeria, and by way of a petition to the Chairman Code of Conduct Bureau, he is alleged to have breached the provisions of Code of Conduct of public officers.
2. That a petition was made against the defendant alleging that he failed to declare his assets according to the law.
3. That the defendant is the head of the all Nigerian Courts and Judiciary as well as the Chairman of the National Judicial Council.
4. The National Judicial Council under his Chairmanship exercises supervisory and disciplinary role on all judges and judicial officer in Nigeria.
5. That any decision reached by this Tribunal whether interlocutory or final may likely go on appeal up to the Supreme Court where the defendant is at the helm of affair and is to constitute the panel that will determine such appeals.
6. That it will be against the rule of Natural Justice for the defendant to remain the Chief Justice of Nigeria and Chairman NJC while facing trial under the same judges that he chairs their promotions, disciplinary and other related matters.
7. That under Article 9.1 of the National Judicial Policy, 2016, it is the defendant that is solely responsible for maintaining standard and coordinating efficiency in the system of justice throughout Nigeria. DATED this 10th day of January 2019.”
The matter was listed for the 14th of January, 2019. On the said date, the Appellant/Applicant filed a motion pursuant to Section 33 (6), 153 (1), 158(1), 292(1) (a) (I), PARAGRAPH 21 (e) PART 1, of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) wherein the Appellant/Applicant is praying the lower Tribunal for:
1. AN ORDER striking out and/or dismissing in its entirety, the charge preferred against the defendant, by the complainant respondent (respondent), as constituted in Charge No CCT/ABJ/01/19,
2. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Tribunal may deem fit to make in the circumstance.
TAKE FURTHER NOTICE that the grounds of this application are:
i. The applicant is a judicial officer, a justice of the Supreme Court of Nigeria and, presently, the Chief justice of Nigeria
ii. The Constitution makes ample provisions for the appointment and removal of judicial officers, particularly, a Justice of the Supreme Court, and more particularly, the Chief Justice of Nigeria.
iii. No allegation of any misconduct whatsoever has been made against the applicant by the respondent, and none (allegation) has been referred to the National Judicial Council (NJC) by the respondent.
iv. No address supported by two-thirds majority of the Senate has been presented to the President of Nigeria, for the discipline or removal of the applicant from office.
v. The relevant provisions of the Constitution relating to discipline and removal of judicial officers have been given judicial interpretation by the Court of Appeal in Nganjiwa v. FRN (2018) 4 NWLR (Pt.1609) 301 at 340-342, whereat the appellate Court came to the conclusion that no criminal investigation or prosecution can be initiated or instituted in any Court of law or Tribunal against a serving judicial officer for judicial misconduct, without first presenting such allegations to the National Judicial Council and a determination thereof by the National Judicial Council.
vi. Under the doctrine of stare decisis, the decision of the Court of Appeal is binding on all Courts and Tribunals in Nigeria, which are subordinate to the Court of Appeal, including and particularly, this Honourable Tribunal.
vii. In the unreported ruling of this Honourable Tribunal in Federal Republic of Nigeria v. Sylvester Nwali Ngwuta, Charge No.: CCT/ABJ/Q1/2017, delivered on 9th January, 2018, this Honourable Tribunal applied the binding decision of the Court of Appeal in Nganjiwa v. FRN (supra), struck out the charge preferred against a Judicial officer, and discharged the said Judicial officer accordingly.
viii. This Honourable Tribunal neither has the jurisdiction nor vices to countenance or entertain the charge preferred against the applicant by the respondent.
ix. The respondent has preferred the said charge against the applicant in utmost bad faith.
AND TAKE FURTHER NOTICE that at the hearing of this application, applicant shall rely on, and make use of the charge preferred against the applicant in Charge No: CCT/ABJ/101/19.
DATED THIS 14TH DAY Of JANUARY, 2019.”
In the course of the proceedings before the lower Tribunal on 14th day of January, 2019, the Learned senior counsel to the Appellant drew attention of the Code of Conduct Tribunal to the absence of Defendant to which the Learned Defence counsel submitted there was no need for Defendant to be present since he had filed a motion challenging the jurisdiction and that the Defendant had not been served in accordance with Section 123 of Administration of
Criminal Justice Act. Pages 453 – 454 of the record of appeal show the following: –
“Prosecution: – The defendant is aware of the provisions of S.123 and S.124 and he chose out of his own violation to direct the registrar to give it to his aid. In such circumstance, it is either of the two things.
1. That he will accept his directive as service on him.
2. That there was no intention to be here.
So the Registrar who would have respect for him in his position as CJN will definitely obey his instructions. That is why we filed our own motion to prevent this kind of things and argument. There is no law that says a defendant shall refuse to appear before a Court and say I am protesting the jurisdiction. He should be here. He may refuse to take a plea because he is protesting or questioning the jurisdiction but once he has been summoned to come before a Court of law, no matter who, he should be here and then he can have all his protest.
The clear provision of S. 123 and 124 is personal service. If he is saying he wasn’t served personally but through his PA, this can be curved by another service on the defendant with the instruction that they should not take any directives from him as regards who will collect the papers. Defence: As to the application of he has made, is he asking for adjournment for proper service?
Prosecution: It is for the defence to clarify that the defendant having instructed his PA to collect the charge. He, the CJN is the custodian of the law. If they insist that it is not his directive to serve it on his PA and you cannot adduce evidence as to who was right or wrong. If this is the situation, the Tribunal can order another service on the defendant personally with a directive that he should be given the summons personally.
Defence: He said he is ready for proper service. S.266 (b) ACJA we have an interlocutory application. I have authorities interpreting provisions of the Act on what the correct provision of the law is.
Prosecution: I am not informing the Tribunal of what I think but what the law says. S. 123 and .124 ACJA are not the only provisions regarding the appearance of the defendant. These Sections are read together with S. 396 (2) of the ACJA. It shows that no application can be made before a plea can be taken. After the plea has been taken, the defendant may raise objection on the validity of the charge at any time before judgment. To say you don’t have jurisdiction, you must have the defendant here. There is no known decision that he shouldn’t be here.
Defence: There are decisions, INEC V. OGUEBEGO (2018) 8 NWLR Pt. 1620 P. 88 at 105. The Supreme Court held in an interlocutory proceeding that an accused person need not be in the “dock” or Court. The trial does not commence until the plea is taken where the proceeding is defective or being challenged. We are saying the proceedings are defective.
The Supreme Court says it is immaterial whether the accused person or defendant is present in Court or not. EZEZE V. the STATE (2004) 14 NWLR Pt.894, FAWEHINMI V. A. G LAGOS STATE (1989). Court of Appeal says unequivocally that the presence of the appellant in Court was not mandatory before his motion to quash the charge could be heard or taken. It is my view that the Court has the power and duty to stop a prosecution, like I said earlier, we have filed application to challenge the competence of the Tribunal to take the matter. If he is ready, let?s continue, If not, let him ask for a date,
Prosecution: Irrespective of what the learned senior says service will be done again, instructing the registry staff that it should be personal. When we come back, if the defendant is not in Court then they can raise the issue that the defendant is not here because of the objection. Then we can address the Court on if it is the position of the law.
Tribunal: – Matter is hereby adjourned to Tuesday the 22nd of January, 2019. Motions to be taken that day.
Sgd.
DANLADI YAKUBU UMAR (ESQ)
HON. CHAIRMAN
Sgd.
HON. AGWADZA W ATEDZE
MEMBER
Sgd.
JULIE A. ANABOR
MEMBER.
The Appellant/Applicant was dissatisfied and has by his Notice of Appeal dated 15th January, 2019 and filed on 17th January, 2019 appealed to this Court on the following grounds viz: –
1. GROUNDS OF APPEAL
GROUNDS ONE
1. The Chairman and members of the Code of Conduct Tribunal erred in law when they ordered that a motion for interlocutory injunction pending the final hearing of the counts against the Appellant, be heard together with the application challenging the competence and the constitutionality of the criminal charges and the jurisdiction of the Tribunal to hear and exercise powers over the criminal allegations, when the two applications are mutually exclusive and inconsistent in their nature thereby occasioning a grave miscarriage of justice.
PARTICULARS OF ERROR IN LAW
1. The application challenging the jurisdiction of the Tribunal is so fundamental to the exercise of powers that it cannot be heard together with a motion seeking interlocutory injunction pending the final hearing of the counts.
2 The law has become settled that where there is an application challenging the competence of the proceeding and the jurisdiction of the Court, the latter shall be given priority, heard and determined first before any other application.
3. The Tribunal was legally bound to hear and determine first the issue of jurisdiction before any other application is entertained.
4. The Tribunal by its decision in adjourning for the hearing of the two applications assumed jurisdiction without having same.
5. The decision of the Tribunal to hear and determine the two mutually exclusive and unrelated applications together is not backed by any law.
GROUND TWO
The Chairman and members of the Code of Conduct Tribunal erred in law when they gave equal priority to the hearing of an application challenging the jurisdiction of the Tribunal and the one by the Complainant seeking an interlocutory injunction pending the hearing of the criminal allegation and thereby denied the Appellant his right to fair hearing preserved by the Constitution of the Federal Republic of Nigeria 1999 (as amended).
PARTICULARS OF ERROR IN LAW
1. The law has become settled that where a defendant is challenging the jurisdiction of the Court, the application should be first heard and determined before any other application or process be heard.
2. The order directing the hearing of the application for injunction with the jurisdiction applica istion an exercise of the Tribunal’s jurisdiction.
3. The decision constitutes a denial of right to fair hearing in the determination of the jurisdictional application.
GROUND THREE
The Chairman and members of the Code of Conduct Tribunal erred in law when they made an order for substituted service of the charge on the appellant.
PARTICULARS OF ERROR
1. It is settled law that a Court or Tribunal does not grant a relief not asked or prayed for.
2. The prosecution did not formerly ask for any order for substituted service of the charge on the appellant either orally or by way of motion.
3. The Chairman and members of the Code of Conduct Tribunal suo motu made the order for substituted service of the charge on the appellant.
4. The Chairman and members of the Code of Conduct Tribunal lack jurisdiction to make an order not prayed or asked for.
5. The order for substituted service ought not to have been made since the jurisdiction of the Code of Conduct Tribunal is being challenged.
4. RELIEFS SOUGHT:
i. An order of this Honourable Court allowing the appeal.
ii. Setting aside the order of the Tribunal made on the 14th of January, 2019.
iii. Directing that the issue of jurisdiction be first heard and determined.”
The appeal was entered in this Court on 18th January, 2019. On the same date, the Appellant filed Motion Exparte under the inherent jurisdiction of this Court and Section 240 and paragraph 18(4) of the 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) praying this Court for:
“An ORDER of this Honourable Court staying further proceedings in Respect of charge NO/CCT/AB1/01/2019 between Federal Republic of Nigeria vs. Justice Onnoghen Nkanu Walter Samuel before the Code of Conduct Tribunal pending the hearing and determination of the Motion on the Notice filed on the 18th of January, 2019.”
The Motion on Notice aforesaid also prays for similar reliefs in this Court as follows: –
“AN ORDER of this Honourable Court staying further proceedings in respect of Charge No. CCT/ABJ/01/2019 between Federal Republic of Nigeria v. Justice Onnoghen Nkanu Walter Samuel before the Code of Conduct Tribunal pending the hearing and determination of the appeal filed by the Appellant/Applicant herein.
AN FOR SUCH further or other order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
TAKE FURTHER NOTICE that the grounds upon which this application is predicated are as follows:
i. The Respondent/Prosecution filed a charge against the Appellant/Applicant at the lower Tribunal.
ii. The Appellant/Applicant filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Tribunal to entertain or proceed with said charge.
iii. The Respondent/Prosecution also filed an interlocutory application for an order directing the removal of the Appellant/Applicant from office pending the hearing and determination of the charge.
iv. Despite objections from the Appellant/Applicant, during the proceedings of 10th January, 2019, the lower Tribunal ruled that the Notice of Preliminary Objection be taken together with the Respondent/Prosecution’s interlocutory application for the removal of the Appellant/Applicant.
v. Dissatisfied with this decision, the Appellant/Applicant has filed a Notice of Appeal to this Court against same. The record of appeal has also been filed and transmitted to the registry of this Honourable Court.
vi. The grounds in the said Notice of Appeal together with the facts of this case raise exceptional circumstances warranting the grant of this application as they principally challenge the lower Court’s jurisdiction to make the Orders sought to be set aside.
Dated this 18th day of January, 2019.”
The Motion was supported by five paragraph Affidavit with Eight (8) Exhibits attached. The said motion came up for hearing on 21st day of January, 2019. The learned silk for Appellant informed the Court that all processes have been served.
MR. E. O. OMOWUWA, ESQ., who appeared for the Respondent informed the Court that he would require an adjournment to enable him respond to the motions and other processes filed by the Appellant/Applicant and the matter was adjourned to 24th January, 2019 for the motion on Notice seeking stay of further proceedings at the lower Tribunal.
On 24th January, 2019, the Learned Senior Counsel to the Appellant CHIEF WOLE OLANIPEKUN, SAN moved the Motion on Notice filed on 18/1/2019. He relied on the Affidavit in support of the said motion for stay of proceedings and a FURTHER AND ENTER AFFIDAVIT IN SUPPORT OF THE MOTION FOR STAY OF PROCEEDINGS containing 32 paragraphs and the attached Exhibits marked “A-A4, AB, AC, AD and AE respectively stating the happenings at the lower Tribunal. He also relied on list of Authorities containing eleven (11) case filed on 24th January, 2019, and Certified True Copy of the Ruling in SC. 852/2015. DR. OLUBUKOLA ABUBAKAR SARAKI vs. FRN Unreported delivered on 12/1/2015 by FABIYI, JSC to support the Appellant’s application for stay of further proceedings.
The learned Senior Counsel vehemently submitted that from all the facts narrated and contained in the Appellant/Applicant’s Affidavit in Support of the said Motion and the Further and Better Affidavit together with all the exhibits attached to them, the Appellant has made out a case for special and exceptional circumstance to enable this Court grant the Order of Stay of Further Proceedings in respect of charge No. CCT/ABJ/01/2019 between Federal Republic of Nigeria v Justice Onnoghen Nkanu Walter Samuel before the Code of Conduct Tribunal pending the hearing and determination of the appeal filed by the Appellant/Applicant herein. That, this is necessary in order to protect the sanctity of Orders of Courts and to prevent the lower Tribunal from taking any further steps that will jeopardize or render the Appellant’s appeal nugatory.
The learned silk relied on numerous authorities including the following: –
1.VASWANI TRADING CO. V SAVALAKH & CO. (1972) ALL NLR 922;
2. MOTOH V MOTOH (2011) ALL FWLR (PT. 584) 33 AT 118 E H; 3, ROSSEK V ACB (1993) 8 NWLR (PART 312) 382 AT 471 E – H and
4. UNREPORTED RULING IN SARAKI V. FRN IN SC 852/2015 delivered on 12 – 11- 2015 PER FABIYI, JSC.
The learned Silk strongly and tenaciously argued that interest of justice demands that the Orders sought be granted in favour of the Appellant/Applicant.
In response to the above submissions OYIN KOLEOSHO, ESQ for the Respondent relied on the Respondent’s Counter Affidavit to oppose the Appellant/Applicant’s application. He relied on Exhibit A A4 attached to the Appellant’s Affidavit to contend that on 14/1/2019 the Appellant was asked to proceed with his motion but that his learned Senior Counsel asked for adjournment to react to the Respondent’s motion.
That the Appellant ought to show that his appeal is capable of terminating the proceedings before the lower Court. That there is nothing in the Supporting Affidavits and exhibits attached for stay of further proceedings. He relied on the cases of OLUDARE & ANOR V AKINWALE & ORS (2009) LPELR – 4763 CA pages 58 – 65 B – G and UNITED SPINNERS (NIG) LTD. VS CHARTERED BANK LTD 2001 LPELR – 3410 SC AT 17 A – C.
He urged the Court to dismiss the application.
A Court has indubitable discretion and power to grant stay of proceedings in any cause or matter where there are enough materials placed before the Court and the Court is satisfied that they constitute special and exceptional circumstances. The discretion also involves an examination or consideration of collateral circumstances so it will be granted where justice of the matter demands in order to prevent the destruction of the res and subject matter of the action and to prevent the hoisting of state of helplessness. It will also be granted to prevent the emasculation of the constitutional right of appeal of the Applicant where it is obvious to the Court that there are enough strong materials placed before it vide Affidavits evidence. This Court will not hesitate to grant the order sought in order to do justice to the parties pending when their rights will be determined. It is however not granted as a matter of Course. The guiding principles or guidelines a Court must consider to enable it exercise its discretion judicially and judiciously have been well articulated and have long been pronounced upon. See: –
1. COL. HALILU AKILU VS. CHIEF GANI FAHENHIMI (NO. 2) (1989) 2 NWLR (PART 102) 122 at 1105 C – H TO 167 A – D per KARIBI-WHITE, JSC who said: –
“I consider it important for what I shall say later to state, even if in outline, the general principles applicable to the exercise of discretion to stay proceedings. Whilst I agree that a stay of proceedings falls within the inherent jurisdiction of the Courts, and is determined generally by the exercise of discretion, the practice of the Courts has built around the exercise of discretion certain principles which the Courts will not lightly depart from except where the party invoking the exercise of the discretion, of the Court has established clear and compelling reasons in support of a departure. The exercise of this inherent power to stay proceedings which is derived from Section 6(6) of the Constitution 1979 and Rules of Court, may be invoked where there is an abuse of the process, such as frivolous, vexatious or harassing proceedings or where the plaintiff whose case is sought to be stayed has no cause of action. See Metropolitan Bank v. Pooley (1884) 10 A. C. 210. The general practice is that unless an applicant has established beyond doubt that the action ought not go on, it should not be stayed – See Okorodudu v. Okoromadu (1977) 3 S.C. 21; Shackle ton v. Swift (1913) 2 K. 8. at p, 312. It is essential for applicant for a stay of proceedings to establish not that the plaintiff might not succeed, but that he could not possibly succeed – See Goodson v. Grierson (1908) I K. B. 761. The following circumstances give rise for applications for stay of proceedings.
1. The usual cases of applications for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the Court, pending the outcome of the appeal on the interlocutory decision – See Kigo (Nig.) Ltd. v. Holman Bros. Nig.) Ltd. (1980) 5-7 S.C, 60 at 61; Jadesimi v. Okotie-Eboh (1986) 1 N.W.L.R. (Pt. 16) 264; In re G.M. Boyo (1970) 1 All N. L. R.
2. The application is also made after final judgment, when the defendant or plaintiff against whom judgment was given having appealed against the judgment seeks to stay proceedings in respect of execution pending the determination of the appeal.
This second category is generally referred to as a stay of execution or injunction or stay of proceedings. The effect is generally the same, namely to suspend any proceedings in relation to the matter – See Sodeinde v. Trustees of Ahmaddiyya Movement-In-Islam (1980) 1-2 S.S. 163; Okafor v Nnaife (1987) 4 N.W.L.R. (Pt. 64) 129.
3. There are the other cases, where a plaintiff after commencing an action against the defendant and during its pendency proceeds to initiate another action against the same defendant whether in this country or abroad, in respect of the same or substantially similar subject- matter. The defendant is entitled in such a circumstance to apply for a stay of proceedings in the latter, action. See Okorodudu v. Okoromadu (1977) 3 S. C. 21. The Royal Bank of Scotland V. Citrusdal Investments Ltd. (1971) 3 All E.R.558.
The application for stay of proceedings also lies where a defendant to an action, after the commencement of proceedings, brings action against the plaintiff in respect of the same or substantially similar subject matter. See Thomson v. South Eastern Railway Co. (1881-2) 9 Q.E.B. 320.
Thus in summary, the application for stay of proceedings may be brought where there is an interlocutory appeal or final judgment in an action between parties. It may also be brought where there is a concurrent action between parties in respect of the same or substantially the same subject-matter. Application may also be brought in cross actions between the same parties in an action in respect of the same or substantially similar subject-matter. In all the cases the rationale is that the action ought, in the interest of justice, to be stayed to enable the preservation of the res, the subject-matter of dispute. This discretion exists and may be exercised whether the res is tangible or intangible – See Kigo Nigeria Ltd. v. Holman Bros (Nigeria) Ltd, (1980) 5-7 S. C. 60 at p. 73.
The principles governing the exercise of discretion in applications for stay of proceedings where there is an appeal pending in that proceeding has been clearly enunciated in Shodeinde v. Trustees of Ahmadiyya Movement- In-Islam (1980) 1-2 S.C. 163. Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5-7 5. C. 60 is different in that that was an application to stay further proceedings in the High Court pending the determination of appeal to the Supreme Court of Appeal against the decision of the Court of Appeal.
More recently in Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 where some of the earlier cases were reviewed, it was restated that this Court and all other Courts have an unimpeded discretion to grant or refuse a stay of proceedings or of execution in proceedings before them. But the discretion ought to be exercised both judicially as well as judiciously, and not erratically. The exercise of the discretion must take into account the competing rights of the parties to justice. Since in the case of a final judgment the successful party is entitled to the fruits of his victory, the applicant for a stay must show special or exceptional circumstances why the successful party should be deprived the fruits of his victory, even if temporarily and the proceedings should be stayed. Such circumstances to entitle applicant to the grant of a stay will depend on the facts of each case.
But collateral circumstance which may unless the proceedings is stayed result in the destruction of the res and consequently rendering a. successful appeal nugatory has always been regarded as such “special” or “exceptional” circumstance. Hence on the whole the onus is on the applicant for a stay of further proceedings pending appeal to show that in the circumstances of his case, it would be unjust and inequitable to refuse his application – See Vaswani Trading Co. Ltd. v. Savalakh & Co. (1972) 12 S. C. 77; Utilgas Nigerian and Overseas Gas Co. Ltd. v. Pan African Bank (1974) 1 All N. L. R. (Pt. II) 47; Obeya Memorial Specialist Hospital & Anor. v. A.G. of the Federation & Anor. (1987) 3 N.W.L.R. (Pt. 60) 325; Governor of Lagos State v. Ojukwu (1986) 1 NWLR. (Pt. 18) 621; Jadesimi v. Okotie-Eboh (1986) 1 NWL.R. (Pt. 16) 264; N. B. N. v. N. E.T. (1986) 3 NWL.R. (Pt. 31) 667.
In addition, it seems to me that considerations of any bona fide substantial advantage to the plaintiff, and any serious substantial disadvantage to the defendant, such as whether the continuance of the action would be vexatious or oppressive to him or constitute an abuse of the process of the Court – is to be taken into account in determining whether proceedings ought to be stayed. – See Akhiwu v. Principal Lotteries Officer (1969) 1 All MLR. 426.
Apart from Kigo (Nigeria) Ltd. v. Holman Bros. (Nig.) Ltd. (supra) where the application to stay proceedings was brought by a third party seeking to join as a party, the cases referred to above are clearly different from the appeal before us. In each case, applications have been brought by a party to stay proceedings because of an appeal pending in that proceeding. Hence, although the general principle for the exercise of discretion for the preservation of the res, are applicable, other considerations also apply to enable the exercise of discretion.”
2. JOHN AKUJOBI NWABUEZE VS. OBIOMA NWOSU (1988) NWLR (PART 88) 257; (1988) LPELR – 2081 (SC) 1 at 22 -24 B – G per OBASEKI JSC.
The Courts have been enjoined to carefully consider and properly evaluate contending averments in Affidavits and documents being relied upon by the parties in order to arrive at a just decision. See SIMON EZECHUKWU & ANOR VS I.O.C. ONWUKA (2016) 6 SCM 71 AT 87 F TO 89 A – C per MUSA DATIJO MUHAMMAD, JSC who said: –
“To arrive at enduring decisions, the two Courts must correctly evaluate the affidavit evidence of the contending parties and apply the relevant laws to the ascertained facts. Mogaji v. Odofin (1973) 4 SC 65 at 67 this Court has outlined the proper procedure to be adopted by Courts in the particular task thus:-
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accept and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities.
Therefore, in determining which is heavier, the Judge will have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant,
(e) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.
The above procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987)3 NWLR (Pt 61) 432 at 451.”
It thus behooves this Court to evaluate the Affidavits evidence of the parties and juxtapose them with the guiding principles highlighted in the cited decisions in order to discern whether the Appellant/Applicant has made out a case for stay of further proceedings on the case pending between the Respondent and the Appellant/Applicant in Charge No. CCT/ABJ/01/2019 before the Code of Conduct Tribunal pending the hearing of the appeal filed by the Appellant/Applicant.
Paragraphs 4(i) – (xxiv) of the Appellant/Applicant’s Affidavit in support of his application for stay of further proceedings of the trial at the lower Court are as follows: –
“4. That I was informed by Chief Ogwu James Onoja, SAN, one of the Counsel to the Appellant/Applicant in our Office situate at Plot 598, Ogwu James Onoja Crescent, Off Idris Gidado Street, Wuye District, Abuja on 16th January 2019 at about 1:00pm and I verily believe him as follows:
i. The applicant is the current Chief Justice of Nigeria and a Judicial Officer.
ii. On the 9th of January, 2019, the Code of Conduct Bureau received a petition against the Applicant relating to the breach of the Code of Conduct for Public Officers.
iii. Within 48 hours, an unusually short period of time for the completion of any decent investigation, the Applicant was charged before the lower Tribunal for offences relating to the breach of the Code of Conduct for Public Officers.
iv. Again, despite the fact that the charge was only filed on the 11th of January, 2019, the lower Tribunal fixed the matter for the next working day which was the 14th of January, 2019.
v. Even though the Applicant was never served with the charge in the manner specified by law, his counsel appeared in Court in protest.
vi. The offences alleged against the applicant before the lower Tribunal were alleged to have been committed while he was serving as a judicial officer. A certified true copy of the Charge is hereby attached as Exhibit 1.
vii. The lower Tribunal lacks the jurisdiction to entertain the charge against the Applicant.
viii. The Applicant filed a Notice of Preliminary Objection to the jurisdiction of the lower Tribunal on 14th January, 2019. A certified true copy of the said Notice of Preliminary Objection is hereby attached as Exhibit 2.
ix. On 14th January, 2010, the Applicant’s counsel was served with an interlocutory application by the prosecution praying for his removal from office. A certified true copy of this application is hereby attached as Exhibit 3
x. The matter came up before the lower Tribunal on the 14th of January, 2019 whereat it was established that the Applicant had not been served with the charge. Accordingly, during the said proceedings, the lower Tribunal ordered that service be properly and validly effected on the Applicant.
xi. Despite objections from the Applicant’s counsel during the proceedings of 14th January, 2019 the lower Tribunal adjourned the proceedings to the 22nd of January, 2019 after ruling that the two applications be heard and determined together on the said adjourned date. A certified true copy of the record of proceedings and ruling of the lower Tribunal is hereby attached as Exhibit 4.
xii. Applicant has filed a Notice of Appeal to the Court of Appeal against the said decision of the lower Tribunal. The said Notice of Appeal is hereby attached as Exhibit 5.
xiii. The Notice of Appeal contains jurisdictional, recondite and substantial grounds which disclose special and exceptional circumstances warranting the grant of this application
xiv. That if the resolution of any of the issues raised in the notice of appeal is in the Applicant’s favour, the order of the lower Tribunal appealed against will be liable to be set aside.
xv. The Applicant is desirous of getting his appeal heard and determined timeously.
xvi. That in order to expedite the hearing of the appeal filed, the Applicant has compiled and transmitted the record of appeal to this Court of Appeal and has even filed his brief of argument.
xvii. That it would be an exercise in futility for the lower Tribunal to proceed with the case on the 22nd of January, 2019 only for this Honourable Court to subsequently allow this appeal.
xviii. That enormous time and resources will be wasted on the proceedings at the lower Tribunal if this application is refused.
xix. That if this Honourable Court refuses this application, the appeal filed by the Applicant will be rendered nugatory.
xx. Another exceptional circumstance why this application ought to be granted is that on 14th January, 2019, the Federal High Court in Suit No;: FHC/ABJ/CS/29/2019 BETWEEN THE INCORPORATED TRUSTEES OF CENTRE FOR JUSTICE AND PEACE INITIATIVE V. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE AND 5 ORS granted an interim order mandating the lower Tribunal as well as the Respondent/Prosecution not to proceed with the charge. A certified true copy of the said order hereby attached as Exhibit 6.
xxi. Also, on the same 14th January, 2019, the National Industrial Court in Suit No.:NICN/ABJ/07/2019 BETWEEN MR. PETER O. ABANG V. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE AND 6 ORS granted an order of interim injunction restraining the lower Tribunal as well as the Respondent/Prosecution from proceeding with the said charge or forcing the applicant to vacate his office as the Chief Justice of Nigeria. A certified true copy of the said order is hereby attached as Exhibit 7.
xxii. In the same vein, on the 15th day of January, 2019, the High Court of the Federal Capital Territory in SUIT NO.: CV/771/2019 BETWEEN THE INCORPORATED TRUSTEES OF FOUNDATION FOR THE DEFENCE OF CONSUMER RIGHTS V. ATTORNEY-GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE & 5 ORS granted an Order of Interim Injunction restraining the Lower Tribunal as well as the Respondent/Prosecution from proceeding with the charge or take any other step in the proceedings. Annexed as Exhibit 8 is a Certified True Copy of the Order of the Court.
xxiii. That the grant of this application will not prejudice the Respondent.
xxiv. That it is in the best interest of Justice to grant this application.”
In opposition, the Respondent filed 4 paragraph Affidavits. Paragraphs 3 (a) – (t) are germane for consideration of the Appellant/Applicant’s application for stay of further proceedings and they are as follows:-
7. That I was informed by the Honourable Attorney General of the Federation and Minister of Justice, in our office at about 12:35 pm on the 23rd day of January, 2019 of the following facts which I verily believe to be true as follows:
a. That the Code of Conduct Bureau received a Petition against the Appellant/Applicant and “thereafter proceeded to review the Appellant/Applicant’s Registry. Based on its findings, a decision was taken to prosecute the Appellant/ Applicant.
b. That I know as a fact that there is no time frame or limit for commencing and ending criminal investigations and the attendant prosecution of cases involving both the Code of Conduct Bureau and the Code of Conduct Tribunal.
c. That it is a known fact that the Appellant/Applicant is not immuned from investigation, indictment and prosecution.
d. That as reflected in EXHIBITS 6, 7 & 8 attached to the Appellant/Applicant’s application, the Federal High Court of Nigeria, the National Industrial Court of Nigeria and the High Court of the Federal Capital Territory have issued injunctive orders restraining the continuation of the proceedings as it relates to the Appellant/Applicant before the Code of Conduct Tribunal.
e. That the Appellant/Applicant has now approached the Court of Appeal seeking for stay of proceedings which has already been granted by the respective Courts mentioned above.
f. That if the subsisting restraining orders are not complied with, there are recognized procedures for addressing such.
g. That there is no order of stay of execution against the ruling or decision of the Code of Conduct Tribunal which the Appellant/Applicant is dissatisfied with.
h. That the Appellant/Applicant did not apply in the first instance to the Code of Conduct Tribunal for stay of proceedings before approaching this Honourable Court.
i. That I know as a fact that granting the instant application will amount to abuse of Court or judicial process.
j. That I know as a fact that the nature of the case before the Code of Conduct Tribunal as well as the person and office of the Appellant/Applicant demands a speedy trial and not stay of proceedings.
k. That the Appellant/Applicant did not disclose any exceptional circumstance or irreparable damage he will suffer if the said proceedings are not stayed.
l. That this Honourable Court has always deprecated the act by counsel of using interlocutory appeals to frustrate. the hearing and determination of substantive matters in view of the fact that where a party’s right of appeal will not affected, if he awaits the final determination of the trial on the merits. it is proper to exercise patience, rather than jumping on appeal over issues that only serves to delay the trial.
m. That the Appellant/Applicant’s Notice of Appeal contains no jurisdictional or recondite point of law.
n. That a bulk of the Record of Proceedings as reflected in the Applicant’s EXHIBIT 4, shows that there was no argument on which of the applications before the Code of Conduct Tribunal fakes precedence. The arguments dealt with the issue of service and non-appearance of the Appellant/Applicant and whether an objection can be taken before plea. There was no mention of the application filed by the Prosecution praying for the removal of the Appellant/Applicant from office.
o. That there is no where in EXHIBIT 4 where the Appellant/Applicant’s counsel objected to the hearing of all applications together.
p. That it is within the discretion of a Court or Tribunal to consolidate applications before it.
q. That contrary to the apprehension expressed by the Appellant/Applicant, on 22nd January, 2019, the Code of Conduct Tribunal requested the Appellant/Applicant to proceed with his application challenging its jurisdiction. However, the Appellant/Applicant’s counsel requested for more time to respond to the reply served on him by the Prosecution.
r. That on the same 22nd January 2019, the Code of Conduct Tribunal did not request the Prosecution to move their own interlocutory application even though the Code of Conduct Tribunal was reported to have adjourned to 22nd January, 2019 for hearing of motions.
s. That the Code of Conduct Tribunal on the request of Appellant/Applicant’s counsel has adjourned further proceedings to 28th January, 2019 to hear the Appellant/Applicant?s application challenging its jurisdiction.
t. That it is in the interest of justice and fair hearing not to grant this application as if is made bona fide.?
In obvious reply to the counter affidavit aforesaid, the Appellant/Applicant filed 32 paragraphs Further And Better Affidavit in support of the Motion for stay of proceedings.
It is relevant to reproduce paragraph 5 (a) – (i) of the said further Affidavit which are as follows: –
“5. That I have seen the Counter – Affidavit of Bollah Ali in opposition to the motion for Stay of Proceedings dated 23rd January, 2019 and wish to react thus: –
a. That on the 21st of January, 2019, this Honourable Court directed that the respondent file a counter affidavit to the motion on notice for stay of proceedings pending before the Honourable Court and adjourned to the 24th January, 2019 for hearing of the motion.
b. That on the 22nd of January, 2019 the lead Counsel Chief Olanipekun drew the attention of the later Tribunal to the fact that this Honourable Court directed that the respondent filed a counter affidavit for the motion on notice seeking for stay of further proceeding by the lower Tribunal
c. That inspite the fact that the attention of the lower Tribunal was drawn to the pendency of the appeal as well as the motion seeking to restrain it from further proceedings, the lower Tribunal held that it was not bound by the motion for stay pending before the Honourable Court.
d. The lower Tribunal chairman also held after his attention was drawn to the 4 orders of other Courts including the National Industrial Court and Federal High Court and that if was not bound by the Court orders.
e. That from the proceeding of the lower Tribunal on the 22nd of January 2019, and the position of the Chairman of the lower Tribunal it is determined to foist upon the Court a fait accompli if it is not restrained from further proceedings until this appeal is determined.
f. The lower Tribunal held that the Code of Conduct Tribunal (CCT) was/is not bound by the rulings of the Federal High Court and the National Industrial Court restraining the Code of Conduct Tribunal from taking further steps pending Charge No. CCT/ABJ/01/2019 on the ground that the 1999 Constitution as of the Code of Conduct.
g. The lower Tribunal held that the Code of Conduct Tribunal is a superior Court of record in the same standing as the Federal High Court and the National Industrial Court, since by Section 246 (1) of the 1999 Constitution as amended, the right of appeal against decisions of the Code of Conduct Tribunal lie to the Court of Appeal; and consequently, that the Code of Conduct Tribunal will not abide by the restraining orders made by those other Courts.
h. The lower Tribunal ruled that it would proceed with proceedings in the said Charge because Section 306 of the Administration of Criminal Justice Act (ACJA), 2015 has prohibited stay of proceedings in criminal proceedings.
i. The Lower Tribunal, made extensive comparisons between the appointment and removal from office of the Chairman of the Tribunal and the Chief Justice of Nigeria, etc.
j. The Tribunal held that while the Chief Justice of Nigeria can be removed by two- thirds majority of members of Senate, the Chairman of the Tribunal can only be removed by two majority of members of Senate as well as the members of the House of Representatives.
k. That the Honourable Tribunal adjourned the case to 28th January, 2019 for the two Motions.
I. The holding or comments of the Chairman of the lower Tribunal was widely reported in several newspapers in Nigeria. The said Newspapers are herewith annexed as Exhibit “A”, A4″.
6. On 21st January, 2019, Counsel for the respondent herein E. O. Omonuwa, Esq. who is the DCC FMJ informed this Honourable Court that in view of Orders of Court (Exhibits 6, 7 and 8) annexed to the Appellant’s application, there was no need to make any additional order.
7. The said respondent?s counsel informed the Honourable Court that he needed 3 days to file a Counter Affidavit to the Appellant’s motion for stay of proceedings.”
Now two of the grounds upon which the motion was predicated are that the Respondent’s application before the lower Tribunal is seeking for the removal of the Appellant/Applicant and that the lower Tribunal ruled that the Notice of Preliminary Objection filed by the Appellant/Applicant against the jurisdiction of the lower Court be heard with prosecutor’s application seeking the removal of the Applicant from office. I have also quoted paragraph 4(xi) of the Affidavit in Support wherein the deponent asserted that the lower Tribunal ruled that the two applications be heard and determined together on the said adjourned date. Exhibit 4 was relied upon. What the lower Tribunal said at the end of the proceedings is this: –
“Tribunal: – Matter is hereby adjourned to Tuesday the 22nd of January, 2019. Motions to be taken that day.”
The above quoted decision of the lower Tribunal is an adjournment of the motions filed by the two sides to 22/1/2019.
The germane question is whether this Court has the jurisdiction to grant an Order Staying Further Proceedings in respect of Charge No. CCT/ABJ/01/2019 between the parties to this application at the lower Tribunal pending the hearing and determination of the appeal filed by the Appellant/Applicant herein?
Section 306 of the Administration of Criminal Justice Act 2015 provides: –
“An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained.”
See also the case of DESTRA INVESTMENTS LTD V FRN (2018) 1 SCM 66 AT 72 G – I – 73A – C per AKAAHS, J SC who said: –
“As shown in the record, the matter was adjourned for cross examination by 2nd defendant’s counsel and instead of proceeding with the cross-examination on the adjourned date, the 2nd defendant (now appellant) filed the preliminary objection challenging the Court’s jurisdiction to entertain counts 1 and 2 of the charge, I totally agree with the reply given by learned counsel for the 1st respondent to the effect that the application could not stop the Court from proceeding with the substantive trial since Section 396(2) of the Administration of Criminal justice Act, 2015 allows for a consideration of any objection to be done at the time of delivery of judgment in the substantive case. The section provides: –
396(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such abjection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.”
This provision allows for speedy trial of cases and is meant to obviate the difficulties often encountered by trial Judges who are most often bogged down by interlocutory appeals filed by defence counsel in order to stultify proceedings and if possible truncate trials of accused persons. Learned senior counsel argued rather forcefully that the Court below was in error when it held that a trial Judge is free to adopt any method that suited him in the determination of an application challenging the Jurisdiction of the Court since the Supreme Court has laid down the principle that where the issue of jurisdiction is raised it must be decided upon first before the Court can proceed. The submission by learned senior counsel that the issue of jurisdiction is involved and so must be resolved first is not quite true.”
I have carefully read all the Affidavits filed in support and against the motion for stay of further proceedings aforesaid and all the exhibits attached thereto. I have also ruminated over the various submissions and admonitions of the learned Senior Counsel to the Appellant urging this Court to grant the application as prayed in the interest of justice and the arguments of learned Counsel to the Respondent urging this Court to refuse the motion seeking for stay of further proceedings in respect of the aforementioned charge against the Appellant/Applicant.
I am of the solemn view that the Appellant/Applicant motion praying this Court for an Order staying further proceedings in respect of charge No. CCT/ABJ/01/2019 between FEDERAL REPUBLIC OF NIGERIA V JUSTICE ONNOGHEN NKANU WALTER SAMUEL before the Code of Conduct Tribunal pending the hearing and determination of the appeal filed by the Appellant/Applicant herein ought to be refused and same is hereby refused.
The hearing of the appeal herein is hereby accelerated and fixed for 4th February, 2019.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the ruling just delivered by my learned brother Abdu Aboki JCA. I do agree with the reasoning and I concur with the conclusion thereat.
I only want to lend my voice in support of the ruling by making some few remarks.
By Order 4 Rules 10 and 11 of the 2016 Rules of this Court, an appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court within the time prescribed by the Rules.
After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto. Except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the Court below. The effect of entering an appeal was briskly stated by Adekeye, JSC in Dingyadi & Anor v. INEC & Ors (2010) 7 12 SC 10 as follows:
“Where an appeal has been entered the effect is that the appellate Court which has received the record of appeal is said to be seized of the whole proceedings in the sense that the res in the appeal has automatically passed into the custody of the said appellate Court. Ogunremi v. Dada (1962) 2 SCNLR 417; Ezeokafor v Ezeilo (1999) 9 NWLR (Pt. 619) pg. 513.”
The essence or significance of this is the effort of our law to reduce confusion and to establish the fact that once an appeal is filed, the jurisdiction of the appellate Court has been triggered for it to superintend and hear the issues the appellant is complaining about. The Court it must be borne in mind is the home of due process. Due process demands that legal proceedings are conducted according to rules and principles as enshrined in our law. That is how justice is achieved. Our notion of justice is justice according to law and not justice that is tailored to sentiments whims and caprices of individuals.
Entering of an appeal brings about a handing over of the reins of control of the case to the appellate Court and it is expected that by the hierarchical allotment in our Constitution, a subordinate Court whose decision has been appealed on will defer to the appellate Court and not engage in any conduct that could render the decision of the appellate Court nugatory.
In the instant case, the appellant/applicant appealed to this Court and filed this motion for stay of proceedings of the Court below. Order of stay of proceedings is an equitable order so it cannot be made in vacuo. The aim of an order of stay is usually to protect the res to avoid a situation where the res is wrecked before the appellate Court exercises its jurisdiction. A stay of proceedings is not granted as a matter of routine. It is a matter of law and facts. The law must provide for it and the applicant must satisfy the Court that the proceedings must not be allowed to continue in the interest of justice. See the case of Dingyadi & Anor v. INEC & Ors. (supra).
Generally, an order of stay of proceedings either before a Court, a Tribunal an arbitrator or judicial commission of inquiry is a fundamental interruption in the proceedings of the Court or Tribunal. It is now our law as in Section 306 of the Administration of Criminal Justice Act, an application for stay of proceedings in criminal proceedings shall not be entertained. This has enjoyed a great deal of consideration by this Court in earlier decisions. In the case ofChukwu v. IGP (2018) LPELR – 45249 (CA) this Court Per Tukur, JCA, held:
“It is correct to state that Order 4 Rule 11 of the Court of Appeal Rules 2011, provides that after an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court. The question however, is whether the above provisions operate to Constitution as stay of proceedings as Appellant’s counsel is in effect asserting? The answer is in my view in the negative.
Generally, in order for proceedings before a trial Court can be paused or stayed there must be an application granted by the Court to that effect. Now however, the position is that there is to be no stay of proceedings at the trial Court, in order to expedite criminal trial. This position of the law is statutorily codified in the Administration of Criminal Justice Act 2015, in Section 306 which provided that ?An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained.”
See also Mustapha v. FRN (2017) LPELR 43131 (CA) (Pp 31 – 33, Paras. F – F) Per Garba, JCA, and the case of Shema v. Governor of Katsina State & Ors. (2017) LPELR – 43173 (CA).
The application for such a stay is in the interim. An interim order does not possess the attribute of finality. It is just a temporary suspension of proceedings to allow this Court to exercise its jurisdiction over the matter pending before it as an appellate Court. That exactly is what this Court did on 24/01/2019 when it heard the applicant’s motion for stay of proceedings. In the case of Saraki v. FRN (unreported) SC./853/2015 listed as number 11 on the list of authorities filed by the applicant, the Supreme Court faced with the exigency of matter brought before it by the parties, stayed further proceedings before the Code of Conduct Tribunal pending the hearing of the main appeal. Our law is settled that the grant or otherwise of stay of proceedings is an exercise that is at the discretion of the Court. Every discretion of the Court must be exercised judicially and judiciously having regards to the facts and circumstances of the case. Being an issue of discretion, no one case can be an authority for the other save that, decided cases do guide the exercise from the standpoint of the law and the relevant principles.
The pith and substance of this application is to stay the proceedings of the lower tribunal. The lower Tribunal is the Code of Conduct Tribunal established in Paragraph 15 (1) of Part 1 of the 5th Schedule of the 1999 Constitution of the Federal Republic of Nigeria. In the case of Saraki v. FRN (2016) LPELR – 400 13 (SC), the Supreme Court elaborately and unmistakably held that the Code of Conduct Tribunal is a peculiar Tribunal crafted by the Constitution with quasi-criminal jurisdiction with authority to be guided by the Criminal Procedure Act or Code in the conduct of its proceedings.
Onnoghen JSC (as he then was) explained at pp 25 to 29 Paras C-D as follows:
“The issue, as contended by learned senior counsel for appellant is simply whether the sanctions specified in Section 23(2) Code of Conduct Bureau and Tribunal Act and paragraph 18 (2) of the 5th Schedule to the 1999 Constitution, as amended not being the traditionally recognized criminal law sanctions such as fines or imprisonment, they are not basically more of administrative than criminal sanctions, known to law. In the case of United State v. Lovett (1945) 328 US 303 cited by learned senior counsel for appellant. It was held thus: “Punishment presupposes an offence, not necessarily an act previously declared criminal, but an act for which retribution is exacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprive of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony or because he is no longer qualified.
The deprivation of any right, civil or political previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determination this fact.” Clearly therefore there are administrative and criminal sanctions. Is it correct to say that the sanctions the Code of Conduct. Tribunal can impose are purely administrative if so why are the provisions of the Code of conduct Bureau and Tribunal Act and Paragraph 18 of the 5th Schedule to the 1999 Constitution, as amended replete with unambiguous terms and expressions indicating that the proceeding before the said Code of Conduct Tribunal are criminal in nature? The terms and expression used in the above legislations include arrest, arraignment, the charge, plea, prosecution, conviction, guilty, sentence, prerogative of mercy etc. See Section 23, 24 of the Code of Conduct Bureau and Tribunal Act; paragraph 18 of the 5th Schedule in the 1999 Constitution, as amended; Paragraphs 3 4, 6, 7, and 9 of the Third (3rd) Schedule to the Code of Conduct Bureau and Tribunal Act.
Finally Paragraph 17 of the 3rd Schedule to the Code of Conduct Bureau and Tribunal Act empowers the Tribunal to apply the provisions of the Criminal Procedure Act or Code in the conduct of its proceedings in the “trial of offences generally”. With the repeal of the Criminal Procedure Act and Criminal Procedure Code, Section 493 of the Administration of Criminal Justice Act, 2015 has taken their place. The 3rd Schedule to the Code of Conduct Bureau and Tribunal Act is actually headed ?Code of Conduct Tribunal Rules of Procedure” and is sub-divided as follows: (1) Institution of proceedings (2) Order on an accused to appear (3) Commencement of trial (4) Plea of not guilty or no plea (5) Presentation of case for prosecution (6) Procedure after presentation of evidence by the prosecutor (7) Defence etc. From the totality of the provisions, it is my view that it is clear that the intention of the legislature is to make the proceedings of the Tribunal criminal proceeding to be regulated by criminal procedure is not exhaustive at the moment because Paragraph 8 (1) of the 5th Schedule to the 1999 Constitution, as amendedand Section 23 (1) of the Code of Conduct Bureau and Tribunal Act contain a provision to the effect that the National Assembly may prescribe “such other punishment” other than the current one to be imposed by the Tribunal. This clearly shows a possibility of the National Assembly imposing sanctions of fines and or imprisonment for offences under the Act or Paragraph 18 of the 5th Schedule to the said 1999 Constitution as amended, it so desired. The lower Court in considering the issue had come to the conclusion that the Code of Conduction Tribunal is a Tribunal with limited criminal jurisdiction.
However, looking closely at the provisions of the 5th Schedule to the 1999 Constitution, as amended and the code of conduct Bureau and Tribunal Act, earlier referred to in this judgment, it is safer to hold that the said Tribunal has a quasi-criminal jurisdiction designed by the 1999 Constitution, as amended. It is a peculiar Tribunal crafted by the Constitution. In the circumstance, I hold the strong view that as a Tribunal with quasi- criminal jurisdiction with authority to be guided by the Criminal Procedure Act or Code in the Conduct of its proceedings, it can legally issue bench warrant for the purpose of carrying out its quasi criminal jurisdiction. I should not be understood as saying that the Code of Conduct Tribunal is a Court of superior record or jurisdiction with relevant inherent powers and Sanctions by that as, a quasi-criminal Tribunal/Court, it has necessary powers to put into effect its mandate of ensuring accountability, probity, transparency etc. of public officers in public office.”
In the similar vein, Sanusi, JSC at pp. 155-156 Paras A – E of the report said of the criminal jurisdiction of the Code of conduct Tribunal as follows:
“The learned appellant’s senior counsel’s stance is that the Tribunal has no powers to issue bench warrant because it has no criminal jurisdiction since it cannot impose any punishment. I do not agree with the learned appellant’s senior counsel on that submission, because paragraph 1 to 11 of the 5th Schedule to the 1999 Constitution, as amended, gave the Tribunal powers to try persons who contravene the offences listed therein especially offences bordering on bribery and corruption by public officers. This Court in the case of Ahmed vs. Ahmed (2013) 15 NWLR (Pt. 1377) 274 stated as below:
“If I may repeat, the Code of Conduct Tribunal has been established with exclusive jurisdiction to deal with all violations contravening any of the provisions of the Code as per Paragraph 15 (1). This provision has expressly ousted the power of ordinary regular Courts in respect of such violation. The Tribunal to the exclusion of other Courts is also empowered to impose any punishment as specified in or Subsection (2) (a) (b) of Paragraph 18″ From the above pronouncement by this Court, it clearly shows that the Tribunal, at least has quasi-criminal jurisdiction or limited jurisdiction as rightly held by the lower Court. Having said so, I have no hesitation in holding that since it has criminal jurisdiction, it goes without saying, that it can as well competently issue bench warrant to arrest any person or accused person charged before it, if such person/accused fails to appear before it as is the case of the present appellant in this instant case. To accept the submission of the learned appellant?s counsel that it has no power to issue such bench warrant, could mean opening flood gate for such suspects to refuse to appear before the Tribunal and such situation will render the powers of Court or Tribunal ineffective and it will ultimately stultify the administration of criminal justice. It needs to also be stressed here that the provisions of paragraph 18 (1) empower the Tribunal to make finding of guilt and to also impose punishment which to me, buttresses the point, that the Tribunal has criminal jurisdiction.”
From this decision in Saraki’s case (supra), it is clear that the Code of Conduct Tribunal is a Tribunal with a quasi-criminal jurisdiction and The Administration of Criminal Justice Act is applicable to it.
In the instant application, grounds (iii) and (iv) of the grounds for the application as listed on the face of the Motion read as follows:
iii. The Respondent/Prosecution also filed an interlocutory application for an order directing the removal of the Appellant/Applicant from office pending the hearing and determination of the charge.
iv. Despite objections from the Appellant/Applicant, during the proceedings of 14th January, 2019 the lower Tribunal ruled that the Notice of Preliminary Objection be taken together with the Respondent/Prosecution’s interlocutory application for the removal of the Appellant/Applicant.
This was captured in paragraph (x) and (xi) of the affidavit in support of the application.
In the instant case, the nature of the appeal makes it obvious that it cannot terminate the proceedings or trial by the lower Tribunal. The appeal is more on the issue of which of the competing applications of the parties should be heard first. The two motions pending before the lower Tribunal from the facts before us are the one filed by the, appellant to challenge the jurisdiction of the lower Tribunal and the one filed by the respondent is the one calling for the appellant/applicant to step down from his office. The counter-affidavit of the respondent which is on oath has stated that by the last session of the lower Tribunal, the Tribunal had set down the motion of the appellant for hearing. This was not in any way controverted. It goes therefore that there is no more any exigency as to the right sought to be protected by the applicant in coming with this application to this Court. The motion for stay of proceedings therefore would be unnecessary in the circumstance.
It is for the foregoing and the fuller reasons advanced in the lead Ruling of my learned brother that I agree that his application for stay of proceedings be refused. The motion is accordingly refused. The lower Tribunal can now continue with the hearing of the motion on jurisdiction. The order of stay earlier made by this Court in this case, is spent and it is hereby discharged.
PETER OLABISI IGE, J.C.A.: I have read in advance the Ruling just delivered by my Noble Lord ABDU ABOKI, JCA and I agree with the reasoning and conclusion therein.
The principles relating to the grant or refusal of an application for stay of further proceedings have been eloquently stated in the case of COL. HALILU AKILU VS. CHIEF GANI FAHENHIMI (NO. 2) (1989) 2 NWLR (PART 102) 122 AT 1105 C – H TO 167 A – b per KARIBI-WHITE, JSC.
I am of the view that the jurisdiction of Courts to grant stay of further proceedings in the course of a criminal trial in a Court or Tribunal has been greatly curtailed by the provisions of Sections 306 and 396 (2) of the Administration of Criminal Justice Act, 2015 all of which provide as follows: –
“306 An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained.
396(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.”
See DESTRA INVESTMENTS LTD V FRN (2018) 1 SCM 66 AT 72E – 73A – C per AKAAHS, JSC who said: –
“This appeal is most unnecessary as it seeks to question the exercise of discretion by the learned trial judge who decided to deal with the preliminary objection alongside the substantive case which charged the appellant and the 2nd respondent (who was 1st accused) with the offence of money laundering. After the no case submission was overruled, the appellant and the 2nd respondent entered their defence by calling DW1. As shown in the record the matter was adjourned for cross examination by 2nd defendant’s counsel and instead of proceeding with the cross-examination on the adjourned date, the 2nd defendant (now appellant) filed the preliminary objection challenging the Court’s jurisdiction to entertain counts 1 and 2 of the charge. I totally agree with the reply given by learned counsel for the 1st respondent to the effect that the application could not stop the Court from proceeding with the Substantive trial since Section 396(2) of the Administration of Criminal Justice Act, 2015 allows for a consideration of any objection to be done at the time of delivery of judgment in the substantive case. The section provides: –
“396(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.”
This provision allows for speedy trial of cases and is meant to obviate the difficulties often encountered by trial Judges who are most often bogged down by interlocutory appeals filed by defence counsel in order to stultify proceedings and if possible truncate trials of accused persons. Learned senior counsel argued rather forcefully that the Court below was in error when it held that a trial Judge is free to adopt any method that suited him in the determination of an application challenging the Jurisdiction of the Court since the Supreme Court has laid down the principle that where the issue of jurisdiction is raised, it must be decided upon first before the Court can proceed. The submission by learned senior counsel that the issue of jurisdiction is involved and so must be resolved first is not quite true.”
There is no jurisdiction in this Court to grant the Order of Stay of Further Proceedings sought by the Appellant/Applicant.
Appearances:
1. CHIEF WOLE OLANIPEKUN, SAN, OFR
2. CHIEF KANU GODWIN AGABI, SAN
3. CHIEF J. K. GADZAMA, SAN
4. CHIEF CHRIS UCHE, SAN 5. P. A. AKUBO, SAN
6. CHIEF IFEDAY0 ADEDIPE, SAN
7. CHIEF DURO ADEYELE, SAN
8. CHIEF S. T. HON, SAN
9. CHUKWUMA MACHUKWU UME, SAN
10. CHIEF E. K. ASHIEKAA, SAN
11. OKOH NKANU EFUT, SAN
12. EMEKA ETIABA, SAN
13. JOE ABRAHAM, SAN
14. DR. J. Y. MUSA, SAN
With them,
15. AYO ADESANMI
16. AKINTOLA MAKINDE
17. JOE ABAH
18. REX ERAMEH and
19. OKECHUKWU BENFor Appellant(s)
OYIN KOLEOSHO (SSC,
FEDERAL MINISTRY OF JUSTICE) with him, IBUKUN OKOOSI (SC), HASSAN NDAHI (SC) and DAISY OVRAWAH (SC)
For Respondent(s)
