Adeyinka Ajiboye V. Federal Republic Of Nigeria (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Lead Ruling)

By a motion on notice, dated and filed on 02/05/2012, the applicant prayed this court as follows:

“1. An order of injunction restraining the respondent from taking any further step in the prosecution of the applicant in Case No.KWS/56C/2011 pending the hearing and determination of this application.

2. An order of injunction restraining the respondent from taking any further step in the prosecution of the applicant in case No.KWS/56C/2011 pending the hearing and determination of the appeals filed against the Rulings of the trial judge on 21/12/2011, 16/3/2012 and 17/4/2012.
3. An order staying further proceedings in this case pending the determination of the Appeals to the court of Appeal filed by the applicant on 23/12/2011 and
4. Any order other orders which this court may deem fit to make.

GROUNDS OF THE APPLICATION

1. The Appellant/Applicant being dissatisfied with the Rulings of the lower court delivered on 23/12/2011 and 20/3/2012 admitting two purported confessional statements in evidence, filed two Notice of appeal, Exhibits A and B attached.
2. The case against the Appellant/Applicant is premised principally on the alleged confessional statements.
3. The alleged confessional statements were not made voluntarily by the Appellant.
4. The alleged statements are damning and their wrong admission constitutes grave danger to the defence of the applicant.
5. Irreparable damage would be done to the applicant’s defence if he should wait until final appeal before complaining of their wrong admission in evidence.
6. The Appellant’s application for stay of proceedings at the lower court pending the hearing and determination of his appeal in Exhibits A and B was refused by the lower court.
7. The substantive case will not be adversely affected if same is stayed or an order of injunction is granted against the respondents pending the outcome of this application or even pending the hearing and determination of the applicant’s appeal.
8. Prosecution will not lose anything if proceedings are stayed pending the hearing and determination of this application.
9. It is not the policy of the law/court to rush or be stampeded to haunt a man presumed innocent to conviction and prison.
10. It is in the interest of justice to grant the application.”

The background facts leading to the application are straightforward. The applicant, who was an employee of the Guaranty Trust Bank, Ilorin branch, Ilorin, is undergoing criminal prosecution in the High Court of Kwara State, Ilorin in Charge No.KWS/56C/2011 presided over by Hon. Justice M. Abdulgafar. The respondent, the Economic and Financial Crimes Commission, one of the recognized anti-graft bodies in Nigeria, arraigned the applicant in a four-count information of the offences of theft and criminal breach of trust contrary to sections 289 and 314 of the Penal Code respectively. Following that arraignment, the respondent, after some delay, opened its case and called four witnesses, out of its fourteen listed witnesses, in proof of the charge against the applicant.

In the course of the trial proceedings, there arose a controversy as to the voluntariness or otherwise of the alleged extra-judicial confessional statements made by the applicant in the process of investigation of the alleged criminal offences. That controversy, eventually, resulted to the lower court conducting trial within-trial proceedings in order to determine the voluntariness or otherwise of those pre-trial confessional statements. During that mini-trial, the lower court, on 23/12/2011 and 16/03/2012 in course of evidence of PW1 and PW3 as shown on pages 148 and 172 of the record of appeal respectively, delivered rulings wherein it admitted those alleged confessional statement in evidence. The appellant was dissatisfied with those two rulings. Consequently, he appealed against them by dint of two notices of appeal, filed on 23/12/2011 and 20/03/2012, located on pages 178 – 180 and 181 – 183 of the printed record respectively.

Following the filing of the two appeals, the applicant, on 16/04/2012, filed an application for a stay of proceedings of his trial in the lower court. The application was, duly, heard by the lower court which, in a considered ruling, delivered on 17/04/2012, refused it for want of merit. Again, the applicant appealed against that ruling on 19/04/2012 as found on pages 184 – 186 of the record. It is sequel to that refusal that the applicant, as enjoined by law, brought this present application which had been set out in extenso at the cradle of this ruling. Barring semantics, the application is for a stay of the applicant’s trial proceedings in the lower court pending the determination of his two appeals before this court. It is, therefore, in the main, a replication of that heard and refused by the lower court.

The application is supported by an 18-paragraph affidavit sworn to by the applicant himself. There are five annexures attached and referred to in the supporting affidavit and marked as exhibits therein. Exhibits AA and AB are the two notices of appeal filed on 23/12/2011 and 20/03/2012 respectively against the two rulings admitting those alleged confessional statements in evidence. Exhibits AC and C are the applicant’s applications, through his learned counsel, for compilation of record of appeal and copy of the ruling of 17/04/2012 dated 04/04/2012 and 18/04/2012 respectively. Exhibit D is the applicant’s appeal against the lower court’s refusal of his application for a stay of proceedings made on 17/04/2012.

On the other hand, the respondent, in opposition to the application, filed a 15-paragraph counter-affidavit deposed to by one Umaru Iyah, an investigating officer in the employ of the respondent commission. In view of that opposition, this court ordered parties to file written addresses in order to fastrack the hearing and disposal of the application. The parties complied with that order.

The application was heard on 18/09/2012. In that regard, learned counsel for the applicant, Toyin Oladipo, Esq., adopted the applicant’s written address, filed on 23/05/2012, as representing his arguments in support of the application. He urged the court to grant it. Similarly, learned counsel for the respondent, Rotimi Oyedepo, Esq., adopted the respondent’s written address/submission, filed on 16/06/2012, as representing his arguments against the application. Learned counsel urged the court to dismiss it.

ARGUMENTS OF THE PARTIES.

Learned counsel for the applicant submitted that the most important consideration in an application of this nature is whether or not there is a viable appeal. He referred the court to the notices of appeal, exhibits AA, AB and D attached to the application. He explained that the appeals in exhibits AA and AB were against the admission in evidence of the alleged confessional statements made by the applicant while exhibit D was an appeal against the refusal of the lower court to stay proceedings. He noted that that appeal, also, raised a constitutional issue, that is, the constitutionality of section 40 of the Economic and Financial Crimes Act. He urged the court to hold that the appeals were viable and substantial and that exhibit D raised a novel issue regarding whether or not section 40 of the Act was inconsistent and derogated from sections 36 and 271 of the 1999 constitution. He relied on the cases of Young Shall Grow vs. Alhaji Afolabi (2002) NWLR (Pt.135) 785 at 795 – 796 and Ukachukwu & Sons Ltd vs. Okeke (2001) FWLR (Pt.71) 1791.

Learned counsel contended that there was need to preserve the res and prevent undue hardship from being occasioned to the applicant. He took the view that if the application failed, the lower court would continue with the criminal proceedings against the applicant with the likelihood that he might be convicted and sent to prison during the course of and before the appeal, challenging the admissibility of those alleged confessional statements, would be heard and determined. He argued that in the event that the applicant’s appeal succeeded, and the court expunged the said statements, he would have served considerable part of the term of sentence prescribed in the Penal Code for the offence with which he was charged with. He added that the applicant’s appeal on the refusal of the lower court to stay proceedings would be rendered nugatory. He urged the court to hold that in the circumstances of those appeals, it would be just and equitable to grant the application. He placed reliance on the cases of Ministry of Works & Housing vs. Thomas Nig. Ltd (No.1) (2001) FWLR (Pt.47) 1089 at 1094 – 10985; NALSA Team Associates vs. NNPC (1996) 3 NWLR (Pt.439) 621 at 632; Ishaku v. Kantiok (2012) 7 NWLR (Pt.1300) 457 at 504 to support his contentions.

Learned Counsel urged the court not to entertain, at this stage, the question whether or not section 40 of the Act prohibited the hearing of such an application for stay of proceedings or injunction. He reasoned that that question was for the substantive appeal; adding that it would be premature to delve in that in the application. He cited the case of United Spinners Ltd vs. Chartered Bank Ltd (2001) FWLR (Pt.66) 640 at 654 – 655. He urged the court, based on those submissions, to grant the application.