Federal Republic Of Nigeria V. Vincent Ogbulafor & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

This appeal emanates from two interlocutory decisions of the High Court of the Federal Capital Territory Abuja delivered by Bello, J. granting an order for stay of proceedings and subsequently ordering further hearing in the case after severing the 1st and 2nd accused person’s case from that of the 3rd accused. The two orders were respectively made on the 14th and 20th December, 2010 with both of which the appellant was aggrieved.

The three respondents ore jointly charged as accused persons before the lower court. After pleading “not guilty” to the 17 count charge, the 1st and 3rd accused persons/respondents brought an application challenging the competence of the charge and the jurisdiction of the court to try them. The court, in its ruling delivered on the 14th October, 2010, held that the counts were valid and competent.

The 3rd accused was dissatisfied with that ruling and appealed against it. He then filed an application for stay of proceedings pending the determination of that appeal. The court below on the 14th December, 2010 in a reserved ruling granted the application and ordered stay of further proceedings pending the determination of the appeal as per the relief sought for in the motion.

Thereupon, counsel for the 1st accused person asked the court orally to order for severance or separate trials of the charges so that trial could proceed in respect of the 1st accused person only, was objected by the prosecuting counsel as well as the counsel for the 3rd accused person on the ground that the court was functus officio and bound by the order for stay of proceedings granted in the ruling that was just delivered. On the 20th December, 2010 the lower court delivered its second ruling separating the trial of the 1st and 2nd accused persons on the reason that the earlier order of 14th December, 2010 was restricted only to the 3rd accused person on whose application it was granted. The court then fixed the trial of the 1st and 2nd accused persons on the 4th, 5th and 6th January, 2011. The twin rulings made on the 14th and 20th December, 2010 form the bedrock of the instant appeal which is premised on five grounds and from which the following three issues were distilled for determination:-

“1. Whether the learned trial judge was justified in granting a stay of proceedings despite subsisting superior court’s decision brought to the notice of the court. [Related to ground 1]

2. Whether the learned trial judge has the jurisdiction to take further hearing of the case of the 14th and 20th December, 2010, when the order of the 14th of December, 2010 staying further proceeding pending the determination of the appeal was subsisting and binding on the court and on parties. [Related to grounds 2 & 3]
3. Whether the trial high court can proceed to hearing and trial of the criminal charges, by separating the accused persons when proceeding and decision of 20th December were unconstitutional, null and void.” [Related to grounds 4 & 5]

The 1st respondent had raised a preliminary objection in his brief filed on 2/2/2011 but deemed filed on 7/3/2012 without giving the three days mandatory notice of the objection as required by order 10 rule 1 of the Court of Appeal Rules 2011. The preliminary objection was therefore not only incompetent but was effectively abandoned by the 1st respondent of the hearing of the appeal by making no attempt to move it before the hearing of the appeal. It is accordingly struck out.

The 1st respondent formulated three similar issues for determination while the 3rd respondent adopted the appellant’s issues hook, line and sinker. The above three issues as formulated by the appellant are therefore adopted for the determination of this appeal.

Issue One

Whether the learned trial judge was justified in granting stay of proceedings despite subsisting superior court’s decision brought to the notice of the court.

The learned senior counsel for the appellant contended that the learned trial judge erroneously granted an order for stay of proceedings in the criminal trial pending before him without satisfying the conditions precedent to granting such order as laid down by the Supreme Court and the Court of Appeal as no special circumstances were shown to justify the grant of an order for stay of proceedings. The decisions relied upon in opposing the application for stay of proceedings include: Alammieye-seigha v. F.R.N.(2006) 16 NWLR (Pt.1040) 1 at 116-117; Ubanatu v. COP (2000) 2 NWLR (Pt.643) 115 at 129; Mohammed Sani Abacha v. The State (2002) 11 NWLR (Pt.779) 437; Okeke v. F.R.N. (2009) 9 NWLR (Pt. 1145) 94 at 106-107; IGP v. Fatose (2007) 9 NWLR (Pl. 1039) 263 at 279.Courts & Judiciary

The appellant urged the court to hold that the learned trial judge erred in law in disregarding the decisions of the superior courts and arrived at a wrong and unjustified decision.

The learned counsel for the 1st respondent, however, argued that order for stay of proceeding made by the lower court on the 4/12/2010 was proper as the court acted judicially and judiciously in granting it. He submitted that the court was not bound by the decisions of superior courts in matters of discretion like stay of proceedings. Reliance was placed on the authority in Moses Ola v. Williams (2003) 5 NWLR (Pt.812) 48 of 63 paras. C – F; Ajayi v. S.E.C. (2009) 13 NWLR (Pt.1157) 1 at 33 paras A-D.

It was further submitted for the 1st respondent that the lower court has not been shown to have erred in principle in the exercise of its discretionary power, to warrant interference by the appellate court. The court was urged to resolve this issue against the appellant. The 2nd respondent did not argue the first issue and has therefore abandoned same leaving the issue to be decided on arguments canvassed by the appellant and the 1st respondent. The 3rd respondent was not entitled to be heard as he filed no brief at all. The appellant, having alleged that the lower court’s decision was perverse, was duty bound to show such perversity. As rightly argued by the learned counsel for the 1st respondent matters of discretion are exercised according to the facts and circumstances of each particular case. Once the principles guiding the exercise of such discretion are followed, the mode of exercising it cannot be tied to a particular way as done in another case because each case must be treated according to its peculiar facts and circumstances. Exercise of discretion is based on the peculiar facts and circumstances of each case.