Otunba Justus Olugbenga Daniel V. Federal Republic Of Nigeria (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIENTONBARA DANIEL-KALIO, J.C.A.:(Delivering the Leading Judgment)

The dispute on appeal in this case is over the Ruling of the High Court of Ogun State in respect of issues of Fair Hearing, Abuse of Process and Contempt of Court.

By an information dated 2nd April, 2012, the Federal Republic of Nigeria (the Respondent in this Appeal) brought a number of charges against the Appellant including inter-alia 13 Counts indicating that the Appellant whilst being the Executive Governor of Ogun State and a Trustee of the Government of that State pursuant to the provisions of the Land Use Act, with intent to defraud, converted land to some favoured companies and individuals. In total, the information filed against the Appellant contained 38 Offences with which the Appellant was charged.

On the 15th of October 2012, the Appellant filed a Motion on Notice in which he sought an order of the High Court of Ogun State striking out counts 1 to 13 in the information filed. The Motion on Notice sought two other prayers made in the alternative. The first was to stay further proceedings in respect of the said counts 1- 13 pending the determination of the Appellant’s action in Suit No. M/74/2012 Otunba Olugbenga Daniel & Anor. vs. Governor of Ogun State & 6 Ors. while the second alternative prayer was for the adjournment of the trial indefinitely until the determination of Suit No. M/74/2012.

The grounds of the Motion on Notice indicated inter-alia that the applicant’s right to fair hearing had been and was likely to be compromised by the findings and recommendations of the Ogun State Judicial Commission of Inquiry into the land allocation, acquisition, sales and concessions of Government Properties and Administration of Land Policies, Rules and Regulations between January 2004 and May 2011 and the White Paper issued by the Ogun State Government on the Findings and Recommendations of the Judicial Commission.

The affidavit in support of the motion averred that the Economic and Financial Crimes Commission (EFCC) and the Attorney-General of Ogun State were agents of the Ogun State Government to prosecute the counts in the information against the Appellant; that the Ogun State Government set up a Judicial Commission of Inquiry the terms of reference of which included inquiry into the allocation, acquisition, sale and concessions of government properties between January 2004 and May 2011; that the properties investigated by the Judicial Commission were also the subject matter of count 1- 13 in the information; that the Judicial Commission has submitted its report, which report had been given wide publication in the print media; that in the report of the Judicial Commission, the Appellant was adjudged liable for fraudulently converting various plots of land that were the property of the Ogun State Government and finally, that the damaging report of the Judicial Commission was available for use against the Appellant in respect of the said count 1 – 13 in the Information.

It is apposite to say that on 14/12/2012 the lower court granted an extension of time for the filing of a counter-affidavit, further affidavits and reply on points of law. In the Respondent’s Counter-Affidavit, it was averred that the proof of evidence which accompanied the Information filed against the Appellant made no reference to the Judicial Commission complained about by the Appellant.

After the Counsel to both parties adopted their respective written addresses, the lower court adjourned the matter to the 8th of January 2013 on which date it gave its Ruling. In the ruling, the trial Judge refused to strike out counts 1- 13 in the Information filed against the Appellant. The trial judge went further and decided as follows:-

“It is therefore my considered view that there is no basis for the order sought by the applicant to stay proceedings in this action with respect to counts 1 – 13 or for the action to be adjourned sine die pending the determination of Suit No. M/74/2014. I hold that it would be unjust and unreasonable to grant any of the said orders sought pending the determination of the Said suit.

For all the reasons stated above, I resolve the only issue for determination against the applicant. In the result, this application fails, being wholly unmeritorious. Accordingly, I hereby make an order dismissing it.”

Dissatisfied with the Ruling, the Appellant filed a Notice of Appeal in which he reeled-off eleven grounds upon which he felt dissatisfied with the Ruling. By an order of this court, the Notice of Appeal was amended via an Amended Notice of Appeal dated 3/4/13, filed on the same date but deemed as properly filed and served on 9/10/13. The Amended Notice of Appeal increased the grounds of appeal from eleven to a dozen.

The parties filed their respective Briefs of Argument. The relevant Appellant’s Brief of Argument is the Amended Appellant’s Brief of Argument dated 12/6/13 filed on 13/6/13 and deemed as properly filed and served by an order of this court made on 9/10/13. The Respondent’s Brief of Argument was dated and filed on 8/10/13. The Appellant filed a Reply Brief on 17/10/13. All the Briefs of Argument were adopted in court on 28/10/2013 by Counsel.

Appellant’s Counsel Prof. Taiwo Osipitan SAN who led a team of lawyers including three other Senior Advocates of Nigeria namely, Tayo Oyetibo SAN and Mrs Titilola Akinlawon SAN began his submission by highlighting the Terms of Reference of the Judicial Commission of Inquiry set up by the Ogun State Government and the Findings of the Commission as they pertain to the Appellant. He related the findings to counts 1, 2, 3, 4, 5, 6, 8 – 11 and 13 in the Information filed against the Appellant before the trial Judge. The Learned Senior Advocate submitted that as a result of the dissatisfaction of the Appellant with the findings of the Commission of Inquiry, which findings according to him, indicted the Appellant and were accepted by the Ogun State Government, the Appellant instituted Suit No. M/74/2012: OTUNBA GBENGA DANIEL & ANOR. VS. GOVERNOR OF OGUN STATE & ORS. in the Shagamu Judicial Division of the High Court of Ogun State wherein the Appellant sought an order quashing the Report of the Commission of Inquiry and the decision of the Ogun State Government accepting it.

Now with regard to the Ruling of the trial Judge under attack in this appeal, the Learned SAN formulated the following as the issues for determination in this appeal: