Chief Diepreye Solomon Peter Alamieyeseigha V. The Federal Republic of Nigeria & Ors (2006)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

This is an appeal against the ruling of the Federal High Court, Lagos (per M.L. Shuaibu, J) delivered on 23/12/05. In the said ruling, the application for stay of proceedings and for striking out the 40 counts charge(s) against the 1st Accused/Appellant (hereinafter called “the Appellant”) was refused and dismissed. The Appellant who is dissatisfied with the ruling of the trial court now appeals against it in this court… The facts leading to Appellant’s application before the trial court (the subject – matter of this appeal) as stated in and gathered from the two briefs filed in this appeal are as follows:-

The Appellant who is the former Executive Governor of Bayelsa State was impeached by the Bayelsa State House of Assembly on 9/12/05. After his impeachment the Appellant was immediately arrested and detained by the Economic and Financial Crimes Commission (EFCC) which filed the above mentioned criminal charges against him and 7 others (i.e. 1st – 7th Accused/Respondent) for money – laundering and other economic and financial crimes or offences. The charge and proof of evidence were served on the said Appellant on 19/12/05 and he was brought to the trial court for an arraignment on the following day (20/12/05). The 2nd – 5th Accused/Respondent (also hereinafter called “the 2nd – 5th respondents) were also served with the above mentioned criminal processes on the same day with the Appellant while the 6th – 8th Accused/Respondent (hereinafter called “the 6th – 8th respondent”) were served on 22/12/05. When the case came up for arraignment on 20/12/05 and upon the objection raised by the Appellant learned senior counsel, the matter was adjourned to 23/12/05 for the plea of all the respondent to be taken on that date. However, on 21/12/05, the learned counsel for the appellant filed a motion for stay of proceedings and for the charges to be struck out for their being brought contrary to the provisions of the Criminal Procedure Act (CPA) and the Federal High Court Act. It was on this subsequent motion brought by the Appellant which was refused and dismissed by the learned trial judge who proceeded to take the plea of the Appellant and 2nd – 8th respondent that present appeal is based and brought or filed by the Appellant in this court.

It has to be mentioned at this onset that although the 2nd – 8th respondents were respectively represented by their learned counsel at the hearing of the appeal by this court on 7/3/06, they were so represented as mere nominal respondents in the present appeal and the main battle is between the Appellant and the 1st Respondent as the only parties who filed briefs of arguments. Thus all the other nominal respondents who did not file briefs of arguments and did not seek to do so at the hearing, have chosen or opted to abide by whatever is the outcome or whatever decision is given by this court in its final determination of the appeal. Consequently in this judgment, we have only the two briefs (of the appellant and 1st respondent) which were filed in accordance with the rules of this court to consider. It is also pertinent to state at this stage that the appellant’s motion for stay of the proceedings at the lower court dated 16/1/06 and filed on 17/1/06 which was pending in this court was withdrawn on 7/3/06 with the mutual consent of all the learned counsel and struck out by this court before the commencement of hearing of the present appeal.

In the appellant’s brief, dated 8th February, 2006 and filed the next date (9/2/06) five (5) issues for determination of the appeal are formulated. (see page 3-4 thereof); they are as follows:-

“ISSUES FOR DETERMINATION

1. Should the trial Judge not have struck out the action on the ground that same was not commenced in compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act?
2. Was the trial Judge right in refusing to countenance and or place any reliance of (sic) the documents exhibited to the affidavit in support of the appllcalion of the 1st accused (appellant) on the ground that they are inadmissible.
3. Was the trial Judge right in holding that exhibit OD4 is inadmissible, if he was wrong in so holding, what should have been the effect of this on the application of the 1st accused (appellant).
4. Having refused to countenance the exhibit attached to the affidavit evidence, should the trial Judge not have considered the uncontradicted facts in the affidavit evidence to grant the reliefs sought?
5. should the criminal proceedings before the trial court be stayed?

In the 1st respondent’s brief, only two (2) issues for determination are framed or distilled as follows:-

“Issues for determination

It is submitted that there are only two issues arising for determination by this court having regard to the decision of the lower court and the grounds of appeal filed by the appellant. The issues are:-

1. Whether the charge against the appellant was not initiated in substantial compliance with the provision of the Criminal Procedure Act and the Federal High Court Act (see ground 6).
2. Whether the lower court was wrong in refusing to stay criminal proceedings in charge No. FHC/L/328C/2005 pending the hearing and final determination of the two civil actions in suits Nos. FHC/ABJ/CS/622/2005 and YHC/173/2005 (see grounds 1, 2, 3, 4, 5 and 7).

It is clear from the above reproduced issues in the two briefs that even though the said issues are different in their numbers or wordings they are however substantially the same in both briefs. Thus, the learned counsels for the parties have mutually accepted the real issues calling for determination in the appeal. For the purpose of this judgment, I will adopt the two issues, as formulated above in the 1st respondent’s brief. The appellant submissions (under his 5 issues) which are relevant to the 1st respondent issues will be duly considered along the line. This approach to the issues in the two briefs is in order and in consonance with the oral submissions canvassed by the learned counsel for the parties where the real issues in the appeal were narrowed down into two main complaints by the appellant in the appeal. The first complain is against the irregularity in the procedure for the filing of criminal charge or action in Federal High Court which was said to be done contrary to the provision of the CPA and the Federal High Court Act (FHCA). The appellant’s second complaint is on the trial court refusal to grant his application for stay of the criminal proceedings against him which were instituted before the said trial court. Therefore on the issues as narrowed down by the learned counsel, the appellant issues can be categorized into two. Thus based on the two topics the appellant issues can be merged so that issue one (on the procedural error under the CPA and FHCA) can be considered as one issue while issues 2, 3, 4 and 5 (which are on stay of proceedings at the trial court) can be considered together as his 2nd issue or a reply to 1st respondent’s 2nd Issue.

Under issue No 1 of the appellant’s brief which also corresponds to Issue 1 of the 1st respondent, the main complaint of the appellant is against the refusal of the learned trial judge to strike out the charge(s) or the criminal action against him on the grounds of non-compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act (supra) in the initiation of the action or the criminal prosecution of the said appellant before the lower court. Under the issue it is pointed out in the appellant brief that both the appellant and the prosecution (i.e. 1st respondent) agreed at the trial court that the criminal prosecution in the present case is regulated by and can only be initiated in accordance with the provision of Section 77 of the CPA – See the ruling of the learned trial judge at page 96 of the record of appeal referred to in the appellant’s brief. The provision of section 77 of the CPA (supra) is also reproduced in-extenso in the brief and it is submitted that the relevant provision of section 77(b) (i) must be read together with section 72 of the Act specifically referred to or mentioned in the paragraph of the subsection under which the Attorney-General is vested with the power to file the information. Thus the appellant contends that for a criminal prosecution to be initiated before the Federal High Court as in the instant case, all the requirement or prerequisites for the filing of an information must be satisfied. These include the filing of a formal application for leave to prefer a charge by the Attorney-General of the Federation. In this regard section 340 of the Act (i.e. CPA) is cited by the appellant under which the leave or consent of the judge is made a prerequisite to the filing of such an information. It is pointed out that the requirement for the leave of court before filing an information under the CPA is still applicable in the criminal trial or prosecution at the Federal High Court even though it is conceded that such requirement has been abolished in Lagos State under the Administration of Justice (Miscellaneous Provisions) Edict No.4 of 1979 and the Criminal Procedure (Amendment) Edict 1987. The celebrated case of Ikomi vs. The State (1986) 3 NWLR (PT 28) 340 where it was held that the requirement for leave to file information is still applicable under the CPA in Bendel State is cited in the brief in support of the above contention of the appellant. On the basis of the above submission, the appellant’s brief criticizes the finding of the learned trial judge (at page 97 of the record) that the requirement for leave or filing of information is not applicable or is not a condition for the initiation of a criminal trial in the Federal High Court by virtue of section 33 (1) and (2) of the FHCA.

On the procedure for the initiation of summary proceedings (or trials) before a Magistrate Court or a High Court, the appellant submits that in the present case, the proceedings should have been initiated by way of information since they were before the High Court. It is only when the criminal proceedings are initiated in the Magistrate Court that they can be made or brought by a complaint whether or not on oath (i.e. summarily) in accordance with section 77 (a) and (b) (iv) of the CPA. It is submitted that even under the summary procedure before the Magistrate Court, the manner for the filing of such complaints as provided for in sections 59 (i) and 60 (i) – (iv) as well as the form by which they can be brought were not complied with or satisfied. The two subsections as well as the form (Form No 3) of the complaint are reproduced in the appellant’s brief. Thus, it is argued by the appellant that the complaint in the instant case had not been made before or to the trial judge (in chamber) who is required to record and sign it under the above provisions of the CPA. It is also the appellant’s contention that another requirement for the filing of a complaint, namely that the judge after according and signing it must also issue a summons to compel the attendance of the accused person in the court, was also not satisfied in the present case. See section 81 of the CPA read together with section 33(1) of the FHCA cited in support of the appellant’s submission. It is suggested that for the proper application of the above cited provisions, it is necessary to modify the said provisions by modifying them and by substituting the word “Magistrate” with the words “a judge of the Federal High Court”. Finally, the appellant’s brief submit that in view of the appellant’s argument as canvassed above, the learned trial judge should have struck out the action or the criminal charges brought against the appellant as they were not properly initiated in accordance with the provisions of the law.

In the 1st respondent’s brief, the reply on the above submissions of the appellant on issue 1 covers 11 pages (pages 3 – 14 thereof). The issue is said to emanate from the alternative prayer (No.3) of the appellant in his motion on notice at the trial court-see page 21 of the record. The prayer is also said to be supported only by paragraph 10 of the supporting affidavit. Also the short submission or argument of the learned senior counsel for the appellant at the said trial court in support of his 3rd (alterative) prayer is reproduced in the 1st respondent brief to show that what was canvassed under the said issue is only predicated on the ground that the leave of the Chief Judge of the Federal High Court was not obtained before filing the charge and this failure amounted to non-compliance with section 77 (b) (1) of the CPA. It is pointed out in the brief that the lower court duly considered the simple submission of the appellant’s counsel and found or resolved that there was no need to leave before filing a charge in the Federal High Court. It is conceded in the 1st respondent’s brief that section 77 of the CPA regulates the method or procedure for instituting criminal proceedings at the High Court. The relevant provisions of the section 77 are reproduced in the brief and it is submitted that the provisions or procedure recommended under the section are only applicable where there is or are no other enactment(s) providing the contrary method or procedure for instituting a criminal trial or proceedings at the said High Court. It is pointed out that the main provision of the section provides in a very clear and unambiguous term (or words) that it applies only subject to the provisions of any other enactment. The 1st respondent therefore urges this court to give the words used in the main provision of the section their ordinary meaning as recommended by Lord Simmon in Magor and St. Mellons Rural District Council vs. Newport Corporation (1952) A.C. 189 at 191 and followed by the Supreme Court in Awolowo vs. Shagari (1979) 6-9 SC 51; and NDIC vs. Okem Enterprises Ltd (2004) 10 NWLR (PT. 880) 107 at 183: cited in support of the preposition. It is then submitted in the 1st respondent’s brief that in line with the above rule of interpretation, section 77 of the CPA (supra) only applies subject to and is inferior to the provision of section 33(2) of the FHCA (supra) which also provides for the institution of criminal proceedings at the Federal High Court and prescribe that it should be by way a summary trial. Thus it is suggested in the 1st respondent’s brief that the substantial compliance with the CPA recommended or envisaged in section 33(1) of the FHCA should be modified to conform with section 33(2) recommending a summary trial proceedings in the Federal High Court. The definition of a summary trial or proceedings as given in Black’s Law Dictionary (6th Edition) page 1204 (see also 8th Edition, page 1242) as well as section 2 of the CPA are cited and quoted in the 1st respondent’s brief to show that the procedure therefore is prompt, short, simple and out of the regular course of the common law procedure or practice. Section 277 of the CPA which gives a more vivid description of a summary trial is also cited and reproduced in the 1st respondent brief. It is submitted that by the combined reading or effect of sections 77(b) (i) and (iii) and 277 of the CPA on a summary proceedings a trial by the filing of information or securing leave to prefer charge(s) is excluded. Also on the above provisions of the CPA, the brief contends, a criminal trial before the Federal High Court cannot be instituted by way of information. Rather they are to be instituted and conducted summarily or under a summary trial proceedings in the same manner as in the Magistrate Court.

On the manner of commencing or initiating a summary trial, the 1st respondent (in its brief) refers to sections 77 (a) and (b) (iv) and 78 (a) and (b) of the CPA and submit that a trial or prosecution can be initiated or instituted by way of complaint where an accused person is not in custody in order to compel his attendance. Where the accused person is already in custody or he has been arrested as in the instant case, the respondent submits, all that the prosecution needs to do is to bring him before the court on a charge sheet in accordance with section 78(b). It is also the respondent’s contention that even under section 77 (b) (iv) the word “complaint” can also be interpreted to mean “a charge” – see Blacks Law Dictionary 8th Edition page 303 where such a definition can be found: see also section 2 of the CPA; Obike vs. L.P.D.C. (2005) All FWLR (PT 274) 337 at 408; (2005) 15 NWLR (Pt. 949) 471 (per Pats Acholonu JSC) and criminal law and procedure of the Southern States of Nigeria (3rd Edition) by Akinola Aguda at p.19 paragraph 116 for similar definitions cited in the brief.