Adeyemo Abiodun & Ors V. Federal Republic Of Nigeria (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Lead Ruling)

The appellant/applicant, a Mr. Egbele Austin Eromosele, has by this application sought for an order for departure from the Rules of this Court together with accelerated hearing of his appeal as well as bail pending appeal.

In moving the application, the appellant/applicant relied on the main record of appeal and the supplementary record of appeal prepared on his behalf by his learned counsel and duly certified by the registrar of the court below who caused it to be forwarded to the registry of this court on 26.6.13 and 10.7.13 respectively to urge that the said main record of appeal and the supplementary record of appeal be used in determining the appeal in order to save time, as the appellant/applicant is serving a jail term of seven (7) years imposed on him by the Federal High Court sitting in Lagos (the court below) on 17.5.2013, which requires the appeal to be given accelerated hearing by this court by grants a departure from the Rules of this Court.

Reliance was placed on order 20 of the court of Appeal Rules, 2011 (the Rules of this court) and paragraphs 1 and 3 of the Court of Appeal (practice Directions) 2013 to buttress the prayer for a departure from the Rules of this court and for an accelerated hearing of the appeal.

It was argued on the application for bail pending appeal that the appellant/applicant has an arguable appeal and/or grounds of appeal that are recondite in law therefore the appellant/applicant should be released on bail pending appeal vide the case of Ogundimu Munir v. FRN (2009) 16 NWLR (Pt.1168) 481 at 497 – 498.

The respondent opposed the application with a counter affidavit of eight paragraphs, arguing in the main that the record of appeal was prepared in its absence contrary to order 8 rule 2 of the Rules of this court; and that the Court of Appeal (Practice Directions) 2013, having provided for accelerated hearing of an appeal the application is superfluous; and that the respondent intends to file a cross appeal, therefore the application should be dismissed.

The respondent contended on the issue of bail pending appeal that it is not granted as a matter of course and that the appellant/applicant did not show exceptional or special circumstances to warrant a grant of the application; all the more so a similar application is pending at the Federal High court sitting in Lagos therefore the present application for bail pending appeal is incompetent and should not be countenanced, especially as the appellant/applicant has more than one notice of appeal contrary to paragraph 7 of the Court of Appeal (Practice Directions) 2013, consequently, the application for bail pending appeal should be dismissed.

Order 20 rule 2 of the Court of Appeal Rules, 2011, (the Rules of the Court) permits the court to direct a departure from the Rules of the Court in any way this is required in the interest of justice, while rule 3 thereof allows the Court in an exceptional circumstance and in the interest of justice to waive compliance by the parties with the Rules of the Court.

Criminal appeals are to be given priority by way of accelerated hearing for the purpose of fast-tracking their determination at the earliest opportunity as complemented by paragraphs 2(a) and 3(a)(i) of the Court of Appeal Practice Directions, 2013. In the present case, the main record of appeal and the supplementary record of appeal were compiled on behalf of the appellant/applicant by his learned counsel and was caused to be transmitted to the registry of this Court by the registrar of the court below on 26-06-2013 and 10-07-2013, respectively.

The quarrel of the respondent who placed reliance on Order 8 rule 2 of the Rules of the Court is that it was not invited by the court below to participate in the compilation of the record of appeal. Order 8 rule 2 of the Rules of the Court is grouped under part 2 of the said Rules dealing with Civil Appeals which starts with Order 6 thereof, so it is inapplicable to the present application which arose from a criminal trial which is categorised under part III of the Rules of the Court, starting with Order 17 thereof. And, Order 17 rules 7 and 9(1) thereof read together clearly shows that the preparation of the record of appeal in a criminal case is the sole responsibility of the registrar of the court below who does not require to summon any of the parties for the preparation of the record of appeal.

The contention of the respondent that the application for departure from the rules is unnecessary is not well taken, as the intention of the rule of court is to quicken the pace of appellate criminal justice, therefore to deny a party of it would be untenable and contrary to the letter and spirit of the Court of Appeal (Practice Directions) 2013 that has been put in place as a facility to eliminate the scandalous delay in the administration of appellate criminal justice.

I do not, with respect to learned counsel for the respondent, appreciate the argument that the intention of the respondent to file a cross appeal should forestall the progress of the appellant/applicant’s appeal. Because a cross-appeal is an appeal in its own right like a counter-claim which may proceed on its own without necessarily being tied to the fortunes of the main appeal. So it is not right to hold the hand of the clock for the progress of a substantive appeal on account of the prospect of a respondent filing a cross-appeal, in my view.

Accordingly, I agree with the learned senior counsel for the appellant/applicant that this is a veritable occasion or instance to accelerate the hearing of the appeal on the main record of appeal together with the supplementary record of appeal prepared by the appellant/applicant and duly certified by the registrar of the court below who caused them to be forwarded to the registry of this Court on 26-6-13 and 10-7-13 respectively. The application for a departure from the Rules and for accelerated hearing of the appeal is, accordingly, granted as prayed. See Soleye v. Sonibare (2002) 10 NWLR (pt.775) 380 at 393 – 394, Attorney General of the Federation v. Abubakar (2007) 44 WRN 139 at 148. The appeal is, accordingly, fixed for mention on 23-09-2013.

In relation to the application for bail pending appeal, it is necessary to refer to section 28(1) of the Court of Appeal Act, 2004. It provides –