TIMIPRE SYLVA v. FEDERAL REPUBLIC OF NIGERIA (2014)

TIMIPRE SYLVA v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7521(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of November, 2014

CA/A/9C/2014(R)

RATIO

COURT: JURISDICTION; WHETHER THE FACT THAT THE COURT IS CALLED UPON TO INVOKE ITS JURISDICTION UNDER A WRONG LAW OR WRONG RULES OF COURT DOES NOT DIVEST THE COURT OF THE POWER TO MAKE THE ORDER SOUGHT

The fact of the application having been brought under a wrong law will not matter in the least, in view of the decision in OLUWOLE v. MARGARET (2012) 13 NWLR part 1318 at 629, where it was held that:
“where a court has jurisdiction to make an order, the fact that the court is called upon to invoke its jurisdiction under a wrong law or wrong rules of court does not divest the court of the power to make the order sought. The court has the vires to grant or make the order under the relevant law or rules of court.”
Furthermore where the demands of substantial justice require, the court can exercise its inherent jurisdiction to grant an application of this nature; “An inherent jurisdiction of court is that power which a court of law exercises for the purpose of doing substantial justice in any matter with which it is seized under certain peculiar circumstances. The inherent jurisdiction supplements the statutory powers of the court and is dictated by need for the court to fulfil itself in order to meet the ends of justice.” ABACHA VS STATE (2001) 3 NWLR (Pt.699) 35 at p.45.
If the applicant is aggrieved with the decision of the lower court, he has a right to appeal, against that decision, especially in view of the fact that he is facing a criminal charge. The court cannot be heard to place hurdles in his front. It will be outrageous in the circumstances not to grant the applicant’s application for extension of time to compile records to facilitate his appeal. The interest of justice requires that the application for extension of time be granted as prayed; this court is borne out in this belief by the decision of the supreme in DURU v. FRN (2013) LPELR 19930-SC when it held: “It must always be remembered too, that the essence of the rules of court, here put in place pursuant to s.243 (1) (b) of the 1999 constitution that confers on the appellant his right of appeal, is to effectuate the right as conferred. The courts by virtue of both the Constitution and the rules are, therefore, under duty not only to facilitate but to do everything possible to enhance the right of appeal. Being a very important constitutional right, its exercise ought not be unduly fettered. The right must neither be derogated from nor frustrated.” per. MOHAMMED MUSTAPHA, J.C.A.

APPEAL: PRAYER FOR STAY OF PROCEEDINGS; CIRCUMSTANCES WHERE A STAY OF PROCEEDING CANNOT BE GRANTED

On the prayer for stay of proceedings this court does not see the need or necessity for staying the proceedings of the lower court, first because nothing in the affidavit before this court warrants the exercise of this court’s discretion in favour of the applicant in that regard, and second, but by no means less important because “Stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation in the trial on the basis of the merit of his case. Consequently, the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.’ NIKA FISHING CO. LTD. v. LAVINA CORP. (2008) 16 NWLR (Pt.1114) 509.
It is not enough in the considered opinion of this court to merely challenge the jurisdiction of the lower court, and hope that act in itself is enough to guarantee the grant of the prayer to stay proceedings; a stay cannot be granted where in the circumstances of the case doing so will offend the court’s sense of justice and probity; it this reason that this court held earlier that:
“The grant of a stay of proceedings involves a consideration of all the circumstances of the case concerning the litigation including the conduct of the parties and the effect of the application.”
HARRIMAN V HARRIMA (1989) 5 NWLR (Pt.119) pg 6 at 14 and MOBIL OIL (NIG.) PLC V. KENA ENERGY LTD (2004) 8 NWLR (PT.874) 113. per. MOHAMMED MUSTAPHA, J.C.A.

JUSTICES

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

TIMIPRE SYLVA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

MOHAMMED MUSTAPHA, J.C.A. (Delivering The Lead Ruling): This is an application brought pursuant Constitution, Order 7 Rules (1) and (10), and Order 8 Rule 4 of the rules of this court, and the inherent jurisdiction of this court.

It is for the following orders:
1. An order for the enlargement of time, within which the applicant may compile and transmit the record of appeal to this court, in respect of the ruling of Hon. Justice Adamu Bello, sitting at the Federal High Court, Abuja, delivered on the 30th of may, 2013, in charge No.FHC/ABJ/CR/23/2012.
2. An order of this court deeming the record of appeal compiled and transmitted by the applicant, duly complied and transmitted.
3. An order staying further proceeding before the Federal High Court in Charge No. FHC/ABJ/CR/23/2012, pending the hearing and determination of the appeal against the ruling of Hon. Justice Adamu Bello, delivered on the 30th of may 2013; and any such order or orders as this court may deem fit to make in the circumstances.

The application is brought on the following grounds:

1. The trial Federal High Court by its ruling delivered on the 30th day of May, 2013 refused the Appellant/Applicant’s application seeking to squash the six (6) counts charge against him and the Appellant promptly filed an appeal against the ruling;
2. However, the Registrar of the lower court failed and/or omitted to conclude the compilation and transmission of the record of appeal to this Honourable Court within the time allowed by the Rules of court inspite of all the efforts of the Appellant;
3. Appellant/Applicant was also not able to compile and transmit the record of appeal within the time allowed by the Rules of the Court of Appeal;
4. Appellant/Applicant has now compiled and transmitted the record of appeal, albeit out of time and appeal No:CA/A/9C/2014 has been given to the appeal;
5. This Honourable Court has the power to grant an extension of time within which the Appellant/Applicant may compile, transmit and serve the record of appeal to this Honourable Court and deem same properly done;
6. The grounds of Appeal contained in the Notice of Appeal raise constitutional issues that are recondite, cogent, substantial and/ or arguable;
7. The issues raised by this Appeal are issues which cannot await the conclusion of trial, or the delivery of the lower court’s final decision on the pending charge(s), as the jurisdiction of the lower court is being challenged on appeal;
8. The decision of this Honourable Court in respect of the ruling of the lower Court refusing to quash the charges against the Appellant/Application will affect the pending trial before the ower Court;
9. The decision of this Honourable Court regarding this appeal will be rendered nugatory if this Honourable Court refuses this application and lower court proceeds with the trial;
10. The criminal charge/proceedings is an abuse of the process of the court and the determination of the criminal charge is likely to render the Appellant’s right sought to be protected null and void;
11. Unless an extension of time is granted to compile and transmit record of appeal, Appellant/Applicant would not have the opportunity to place his case properly before the court.

The application is supported by a 21 paragraph affidavit deposed to by Akeem Umoru, Esq., with the ruling of the Federal High court of the 30h of may, 2013, presided by Hon. Justice A Bello attached as exhibit A and the notice and grounds of appeal.

The respondent filed a three paragraph counter affidavit deposed to by Daniel Ajibulu in opposition to prayer 3; and prayers 1 and 2 on point of law, specifically that the prayers are incompetent by being contrary to the rules of this court.

FACTS IN BRIEF:
On the 30th of May, 2013, the lower court delivered a ruling, refusing the accused/applicant’s application for quashing the six count charge preferred against him; dissatisfied, the applicant appealed against the said ruling.

Lateef O. Fagbemi SAN formulated a sole issue for determination as: whether in view of the facts in this application and the affidavit evidence placed before the court, this is not an appropriate situation for the exercise of the court’s discretion in granting this application; and submitted on prayers 1 and 2 that this court has inherent powers to grant the prayers sought, and it is also empowered by virtue of Order 7 Rule 10(1) of the rules of this court.

That the applicant has placed cogent reasons before this court for his non compliance, which are sufficient to entitle him to the exercise of the discretion of this court in his favour; he referred the court to AHMADU SALAWU (1974) ALL NLR part 822 at 826 and SHONU V AFRIBANK NIG. PLC (2000) 13 NWLR part 684.

That also it is in the interest of justice to grant the application for extension of time to compile and transmit the record of appeal in this matter; as a corollary to which it is equally the imperative to grant the application to deem the said record of appeal already compiled and transmitted as proper and regular.

Learned counsel further submitted that the right of the applicant to appeal is constitutional; he referred this court to LONG-JOHN V BLACK (1998) 6 NWLR part 555 at 542.

On prayer three learned counsel submitted that all courts have inherent power to grant an application for stay of proceedings; he referred the STATE V AJAYI (1996) 7 NWLR part 423 at 169 and EZE V OKOLONJI (1997) 7 NWLR part 513 at 517; that the applicant has advanced material both in affidavit evidence and documentary evidence to warrant the grant of this application i.e. by Exhibit B, the notice and grounds of appeal, and paragraphs 4, 5, 17-20 of the affidavit in support of the application, and also that if prayer three is not granted the decision of the court of appeal will be rendered nugatory.

Learned counsel also submitted that the applicant may be compelled to go through a trial which he ought not to face, and thus bring to issue the applicant’s right to fair hearing; he referred to ALAMIEYESIEGHA V F.R.N (2006) 16 NWLR part 1004 at 1.

That Section 40 of the EFCC Act forbids the entertainment of an application for stay of proceedings by a High Court, and not the court of appeal, and even if it applies to the court of appeal it should be resisted because it is an attempt to oust the jurisdiction of the court; he referred this court to OLAOFE V UNIVERSITY OF IBADAN (2001) 10 NWLR part 720 at 149, and section 1(3) of the 1999 constituted.

Learned counsel urged this court to grant the application by extending time to compile and transmit the record of appeal, deem same proper and stay further proceedings in the trial court, pending the determination of the appeal.

Festus Keyamo Esq., learned counsel to the respondent formulated two issues for determination as:
1. Whether this court can enlarge time for the appellant herein to compile and transmit the records of appeal from the court below to this court with regards to order 17 rule 7 (1) (A) (B), 2 and 3 of the court of appeal rules, 2011 and the peculiar circumstances of this case.
2. Whether the appellant is entitled to an order of stay of proceedings with regard to the law and peculiar facts and circumstances of this case.

On issue one learned counsel submitted while referring to order 17 rule 7(1) (a) (b), (2) and (3) of the rules of this court that it is the responsibility of the registrar of the lower court to compile and transmit records in a criminal appeal, and that there is no limit of time within which the registrar may do so, and so there is no time to be enlarged as a result.

That where the above requirement of the rules cannot be complied with the only option left for an appellant/applicant is to apply for a “departure from the rules of court” to enable the applicant compile and transmit the record himself, and not to seek enlargement of time; that the appellant has not applied for departure but enlargement which is unknown in criminal appeals, and so he cannot also be granted a relief he did not pray for; he referred to ADO IBRAHIM & CO. LTD V. B.G.C LTD (2007) 15 NWLR part 1058 at 575, and ORAKUL RESOURCES LTD V N.C.C. (2007) 16 NWLR part 1060 at 303; and urged this court to refuse both prayers 1, and 2 as a consequence.

On issue two learned counsel submitted while referring to section 40 of the Economic and Financial Crimes Commissions (Establishment Act) 2004, which he contended is not in conflict with the constitution, that the appellant/applicant is not entitled to an order of stay of proceedings, because there is no valid pending appeal, and also that even if there is a valid appeal it is merely academic, as the judge whose ruling is being appealed has retired, as a result of which the case has to be started de novo, before justice E. S. Chuckwu, before whom the appellant will have to file a fresh application to quash the charges after taking a fresh plea, a prayer which may, or not be granted; he referred this court to INEC V AGBASO (2010) 1 NWLR part 1174.

Learned counsel further submitted that the appellant/applicant’s approach to this court by way of this appeal, to determine whether he could be tried by the Federal High Court upon the proof of evidence already filed is academic, as the whole process he argued amounts to sheer waste of time, in view of the fact and law that the Federal High Court is empowered to try criminal cases summarily; learned counsel referred to section 33 of the Federal High Court Act, and FRN V ALAMIEYESEIGHA (2006) 16 NWLR (Pt.1004) at 59, and urged the court to refuse prayer 3.
It is submitted for the appellant in reply that the appeal is not only guided by the Court of Appeal Rules but also Court of appeals practice direction,2013 which applies to criminal appeals, as well as interlocutory appeals challenging the ruling of the court below.

That the Court of Appeal practice direction Section 6 (h) clearly empowers the appellant to compile the records of all documents for his appeal and transmit same to the court within 7 days after the registrars failure or neglect to transmit the record.

That also even if the application is brought under the wrong rules it will not be incompetent as long as there are relevant rules for such reliefs especially practice direction 2013; he referred this court to FALOBI V FALOBI (1976) 9-10 SC 1 and OLUWOLE V MARGARET (2012) 13 NWLR part 1318 at 613 and urged this court to grant both prayers 1 and 2.

On prayer three learned counsel submitted that it is premature at this stage of the hearing to argue that the appeal is academic when there are live issues to be determined; and also that this court should not comment on the substantive issue at the hearing of an interlocutory application, as that would amount to deciding the substantive matter at an interlocutory application.

The sole issue formulated by the appellant suffices for the determination of this application :
Whether in view of the facts of this application and the affidavit evidence placed before this court, this is not an appropriate situation for the exercise of the court’s discretion in granting this application.

Prayers 1 and 2 for the avoidance of doubt are for enlargement of time within which to compile and transmit records of appeal, and an order for deeming the said records as having been dully compiled and served.

Ordinarily the 1st and 2nd prayers are straight forward applications which ought not to require any opposition from the respondents; but the rules of this court do not appear to provide for enlargement of time in respect of criminal appeals, and as rightly pointed out by learned counsel to the respondent by Order 17 Rule 7 (1) (a), (b),(2) and (3) of the Court of Appeal Rules, 2011 it is the responsibility of the registrar of the court below to compile and transmit the records of appeal from the lower court to this court in criminal appeals; and there does not appear to be any time limit within which the registrar may do so, and so it would appear to follow that there is no time to enlarge for such a compilation and transmission.

The said Order reads:
17 rule 7 (1)(a) “when the registrar of the court below has received a notice of appeal or notice of application to the court for leave to appeal or for extension of the tame within which such notice shall be given; or
(b) the court below has granted leave to appeal; the registrar of the court below shall prepare the record of appeal in the manner hereinafter prescribed and forward to the registrar either seven copies thereof together with where stencils were used for the production of the record, copies of such stencils duly and carefully reserved’ or twenty copies of the record. He shall also forward the original documents usually kept by him, or forming part of the record of the court below, together with the originals of any recognisances entered into or any other documents filed in connection with the appeal or application.
2. subject to the provisions of rule 9 of this order, the registrar of the court below shall forward to the appellant and to the director of public prosecutions of the state from which the appeal emanated, a copy of the record. Provided that if the appellant is a copy of the record shall be supplied to him on request not in custody a copy of the record shall be supplied to him on request,
3. The court may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it may impose.”

Having said that this court holds the view that even if the rules of this do not provide specifically for extension of time within which an applicant may compile and transmit records in a criminal trial it cannot be assumed that such is not contemplated at all; and that contemplation finds expression in order 17 rule 4(1) which provides:
“every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself…”

Clearly if extension of time were not contemplated it would not be mentioned under any guise; be that as it may, the discretion is guided often times by the interest of justice, especially when account is taken of the fact, and indeed law that the right to appeal is guaranteed by the constitution.

This court is satisfied that the reasons advanced in paragraphs 4 to 16 of the applicant’s affidavit accompanying the application are reason enough to grant the application, especially in view of the fact that we are dealing with a criminal appeal here, and that being so nothing prevents this court, even though no application for departure from the rules is made, to have recourse to the practice direction, 2013.

This court shares the view of learned counsel to the applicant that section 6 (h) of the practice direction is relevant in this regard; the section states for the avoidance of doubt that:
“in pursuit of 6 (b), where at the expiration of 7 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the record of appeal in accordance with the preceding provisions of this practice direction, it shall become mandatory for the appellant to compile the records of all documents and exhibits necessary for his appeal and transmit same to the court within 7 days after the registrar’s failure or neglect.”

Accordingly time is extended for the appellant/applicant to compile and transmit the record of appeal in charge No.FHC/ABJ/CR/23/2012; the record of appeal in No. CA/A/9C/2014, filed in the registry of this court on the 13th of January 2014 is deemed as duly compiled and transmitted, with effect from today.

While this court does not share the view that this appeal is academic the fact is not lost on this court that proceedings in respect of this case have to be started de novo, because the trial court judge has retired, and someone else has taken over.

One fact also not lost on this court is the fact that the applicant is on bail; as such the argument that he will be compelled to undergo an unfair trial is not convincing to say the least; especially as nothing before this court also shows that the applicant cannot be fairly heard.

Prayer three for the stay of proceedings of Charge No.FHC/ABJ/CR/23/2012 before the Federal High Court Abuja, pending the hearing and determination of the appellant’s appeal is accordingly refused, without much ado.

MORE A. A. ADUMEIN, J.C.A.: I read before now the leading judgment just delivered by my learned brother, Mohammed Mustapha, JCA. My Lord has in a very unique and compact manner dealt with the germane issue arising for determination in this matter.

I agree with my learned brother that, from the facts of this case, the relief for extension of time within which the applicant may compile and transmit the record of appeal in respect of the ruling of Bello J. in Charge No. FHC/ABJ/CR/23/2012 delivered on the 30th day of May, 2013 has merit and it ought to be granted. I also agree that the second relief for an order deeming the record of appeal already compiled and transmitted to this court is meritorious and it should be granted.

Prayers 1 and 2 in the applicant’s motion on notice dated 14/01/2014 and filed on 15/01/2014 4re hereby granted by me. The record of appeal compiled on 02/07/2013 and transmitted to this court on 13/01/2014 is hereby deemed to have been properly compiled and transmitted to this court with effect from today.

For the able reasons given by my learned brother, Mustapha, JCA prayer 3 for stay of proceedings in Charge No.FHC/ABJ/CR/23/2012 before the Federal High Court, Abuja is hereby refused and dismissed, accordingly.

TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading the Ruling just delivered by my learned brother Mohammed Mustapha JCA. I agree with the reasoning therein.
On the prayer for stay of proceedings of the Lower Court, it is not the practice of this Court to interfere with the proceedings of the Lower Court, particularly as in the instant case where no cogent reason is shown to exercise the discretion in favour of the Applicant. According the application for stay or proceedings is refused.

Appearances

Lateef O. Fagbemi, SAN, O. I. Olorundare, SAN, Folashaade Alli (Mrs.), Olalekan Ojo Esq., Olusola A. Dare, Esq. Hakeem Afolabi, Esq., Omosanya A. Popoola, Esq., A. F. Yusuf, Esq., B. A. Oyun, Esq., Akeem Umoru, Esq. for the Appellant/ApplicantFor Appellant

AND

Festus Keyamo, Esq.For Respondent