MR PATRICK AZI v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12610(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of January, 2019
CA/B/335C/2018(R)
RATIO
APPEAL: RIGHT TO APPEAL
“Section 36 (4) of the 1999 Constitution as amended stated as follows:
‘Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or tribunal.’ The position of the law as held in Metuh v. FRN (2017) 11 NWLR Pg. 86 and plethora of cases is that stay of proceedings in criminal trial is against the Constitution. In Metuh v. FRN (supra) it was held thus: ‘The appellant/applicant’s motion for stay of proceedings is violently in conflict with the provisions of Section 36 (4) CFRN 1999 (as amended), Section 306 ACJA, 2015 and Section 40 of the EFCC (Establishment) Act, 2004 as well as the plethora of case law authorities cited. The application is hereby refused and dismissed.'” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR PATRICK AZI Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling):
The Applicant brought an application by Motion on Notice filed on 6/7/18 pursuant to Order 4 Rule 11 of the Court of Appeal Rules 2016 seeking for an order of this Honourable Court to stay further proceedings in Charge No. EHC/32C/2005 before the High Court of Justice, Delta State pending the hearing and determination of the appeal against the ruling of His Lordship Hon. Justice G.E. Gbemre delivered on 1/2/2018 refusing the Appellant’s/Applicant’s No Case Submission.
The substantive prayer before this Court is stated as follows:-
1. An order for stay of further proceedings in Charge No EHC/32C/2005 before the High Court of Justice, Delta State of Nigeria, pending the hearing and determination of the appeal against the ruling of His Lordship, Honourable Justice G.E. Gbemre delivered on the first day of February, 2018 refusing the Applicant’s/Applicant’s No Case Submission.
The grounds on which this application has been brought is set down below:
1. The Appellant/Applicant has filed an appeal against the ruling of the Effurun Judicial Division of the High Court of Delta State delivered on the 1/2/2018 in Charge No. EHC/32C/2005
2. The appeal against the said ruling has been entered in this Honourable Court for hearing and determination.
3. The appeal raises substantial and weighty points of law.
4. The appeal if successful will automatically put an end to the proceedings in the lower Court.
5. The continued hearing of the suit by the trial Court will render nugatory the judgment of this Honourable Court if the appeal succeeds.
6. It is in the interest of justice to stay further proceedings in the trial Court pending the determination of appeal before this Honourable Court.
The application is supported by a 6 paragraph affidavit.
The 1st Respondent also filed a counter affidavit of 6 paragraphs on 27/7/18.
At the hearing of the motion, learned counsel to the Appellant/Applicant Oghemeiro Okoro Esq. urged this Court to stay further proceedings pending the hearing and determination of the main appeal on the No case submission.
Counsel argued that Administration of Criminal Justice Law of Delta State 2017 is not retroactive therefore it would not apply in the instant suit because of the time the proceedings took place.
Learned counsel to the 1st Respondent, A.I. Agogha Esq. contended that the law applicable is the law applicable at the Court of Appeal when this motion was brought.
Counsel emphasized that the ruling that gave rise to this motion was delivered on 1/2/18 well after the ACJL of Delta State. The applicable law is the law when the motion was filed and not when the charge was laid.
Counsel argued that Section 304 of the ACJL of Delta State provides that what the Applicant cannot get from the lower Court, they cannot get it here on appeal. Counsel referred to Section 15 of the Court of Appeal Act.
Counsel opined that Section 40 of the EFCC Act has been interpreted in Metuh v. FRN (2017) 5-7 (MJSC) Pg. 86 which is in pari materia with Section 304 of the ACJL Delta State. Counsel cited Ajiboye v. FRN (2013) ALL FWLR Pt. 694 Pg. 155 at 170.
Counsel argued that in an appeal against No Case Submission, leave ought to have been sought and obtained before the appeal was brought to this Court.
Counsel opined that the appeal is incompetent since no leave was sought or obtained and urged this Court to strike out the application since there is nothing before this Court on which the motion for stay can be predicated.
Appellant/Applicant’s counsel contended that they can still be heard because the Court can still regularize the appeal when an application for extension of time is brought.
OPINION
Let me first address the issue of the competence of this motion vis-a-vis the argument of learned Respondent?s counsel that leave must be sought and obtained in this Court to bring an appeal against a no case submission. That question is relevant to the point whether a stay of proceedings at the lower Court can be sought and obtained when there is no competent appeal before this Court. There is no doubt that leave is required to appeal to this Court from an interlocutory decision of the lower Court on a matter of mixed facts and law. A decision on a no case submission is an interlocutory one in which the facts considered by the trial Court to apply the law must be considered by the appellate Court. Thus the appeal per force in a no case submission is one of mixed fact and law for which leave ought to be sought and obtained from the lower Court or this Court. Failure to obtain leave makes this appeal incompetent ab initio and liable to be struck out. See Akindipe v. The State (2008) 15 NWLR Pt. 1111 Pg. 560. When there is no competent appeal before the Court, the issue of stay of the proceedings of the lower Court cannot be predicated on any substance and it cannot stand since you cannot build something on nothing. Be that as it may, let me consider the legal merit of this application apart from its inherent incompetence.
The main grouse here is whether this Court can grant a stay in the criminal proceedings against the Applicant before the High Court. I have considered the argument of counsel on both side, and in my humble view the first concern is if the Administration of Criminal Justice Law (ACJL) 2017 of Delta State applies to the instant case.
Let me clarify the position of the law on this point. In a criminal matter it is the substantive law in operation at the time an offence is said to have been committed that has to be referred to when a person is being charged to Court and not the law at the time he is finally arraigned for trial in Court.
I rely on the Supreme Court decision in Gabriel Daudu v. Federal Republic of Nigeria (2018) LPELR 43637 (SC) where the Court per Aka’ahs JSC stated as follows:
‘Let me state straightaway that it is the substantive law in operation at the time an offence is said to have been committed that has to be referred to when a person is being charged to Court. Thus if a person is charged with offence of Money laundering in 2010, it must be the Money Laundering Act as at 2010 that will be used and not the Money Laundering Act at the time he is finally arraigned for trial in Court but the procedural law to be used would be the current one. Thus if the Evidence Act or the criminal procedure Law has been amended or replaced and a new one is in place at the time of trial, it is the amended or newly enacted Evidence Act/Criminal Procedure code that will be used to guide the trial. Thus it is the Evidence Act 2011 that will be used in the trial or appeal taking place in 2018 notwithstanding that the offence was committed in 2008. The accused will however be charged with the criminal offence as contained in the Criminal law in 2008.
Learned Senior counsel for the appellant argued that the documents which were tendered in Court were secondary evidence which were not certified by the Ogori/Magongo Local Government Council but by the EFCC but the trial Court ruled that the documents which emanated from Ogori/Magongo Local Government Council were discountenanced by the Court and if that is so, the appellant has suffered no injury since the said documents were not considered when the offence was proved.
It is not the law as stated by the learned trial Judge that since the charge was filed on 31 March 2010, the Evidence Act 2011 will not apply because the law does not have retrospective effect. That statement only applies to substantive and not adjectival or procedural law. See: Federal Republic of Nigeria v. Mike (2014) 1 SC (Pt.1) 27.
On the other hand, it is the current or extant Adjectival/procedural law that applies to such charge. It is a settled law that compliance must be with the procedure law in force at the time a step is taken.
In ROSSEK v. ACB (1993) 8 NWLR Pt. 312 Pg 382 at 475 BELLO, JSC stated as follows:
On the other hand, procedural law existing at the time of the hearing of a case, whether of the trial or on appeal, applies to the prosecution and defence of the case. It does not matter whether the procedure law comes into force before or after the cause of action arises or has arisen and whether before or after an appeal is filed or has been filed: Attorney-General v. Vernazza (1960) A.C. 965 at 975 and Maxwell on Interpretation of Statutes, Eleventh Edition p.216.
See First Bank of Nigeria Plc v. Hon. Aniedi Okon Etim (2016) LPELR 41374
It means that even though a suit was filed with reference to a particular procedural law and after a while there was an amendment or changes in that law, it is the amended law that will continue to apply and not the old law that was referred to.
In the instant case, there is no doubt the Administration of Criminal Justice Act (ACJL) 2017 of Delta State is a procedural law. I humbly believe it applies at any time to this suit even on appeal.
Having held that the ACJL 2017 of Delta State applies to the application before this Court, it is apt to consider the said law. Section 304 of the same law states to wit:
‘Subject to the provisions of the Constitution of the Federal Republic of Nigeria, an application for stay of proceedings in respect of any criminal matter before the High Court or Magistrates’ Court or any other Court within the State shall not be entertained until judgment is delivered.’
From the above provision, it is clear that the law is specifically against an application for stay in criminal proceedings. It is my humble view that this application is against the extant procedural law and also against the Constitutional provision enshrined in Section 36 (4) of the 1999 Constitution as amended.
Section 36 (4) of the 1999 Constitution as amended stated as follows:
‘Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or tribunal.’
The position of the law as held in Metuh v. FRN (2017) 11 NWLR Pg. 86 and plethora of cases is that stay of proceedings in criminal trial is against the Constitution.
In Metuh v. FRN (supra) it was held thus:
‘The appellant/applicant’s motion for stay of proceedings is violently in conflict with the provisions of Section 36 (4) CFRN 1999 (as amended), Section 306 ACJA, 2015 and Section 40 of the EFCC (Establishment) Act, 2004 as well as the plethora of case law authorities cited. The application is hereby refused and dismissed.’
The decision of the Supreme Court in Metuh v. FRN (supra) was in consideration of the provisions of Section 306 of the Administration of Criminal Justice Act 2015 and Section 40 of the EFCC Act which are all in the same spirit with Section 304 of the ACJL 2017 of Delta State under contention herein.
Let me be quick to add that by Section 15 of the Court of Appeal Act, this Honourable Court could grant an interim order or any injunction only for which the Court below (the trial Court) has the jurisdiction to grant.
If the Court below is restrained from granting this application by virtue of an existing law then it will be a violation of such procedural law if this application is granted by this Court.
This application has no merit in law and it is hereby dismissed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now a draft copy of the lead Ruling just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.
I agree with the reasoning and conclusion that the application does not deserve a favourable consideration.
Accordingly, the said application is hereby dismissed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the ruling just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JCA.
My learned brother has given very comprehensive and elaborate reasons for dismissing the applicant’s motion on notice filed on 06/07/2018. I adopt the reasoning of my learned brother as mine and I also dismiss the said motion on notice for lacking in merit.
Appearances:
OGHEMEIRO OKORO For Appellant(s)
A.I. AGOGHA for the 1st Respondent For Respondent(s)
