Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors V. Dr. Femi Adekanye & Ors… (2002) LLJR-SC

Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors V. Dr. Femi Adekanye & Ors… (2002)

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This appeal is against the ruling of the court below delivered on the 6th of July, 1999. The ruling was delivered sequel to an application brought before that court by the respondents who were the applicants in that court. By their several applications, they sought for the following reliefs: –

“(1) Praying this honourable court to vary its order contained in the judgment of this court dated the 15th of June, 1999.

(2) Praying the Court of Appeal to grant bail to the respondents/applicants.


(3) An order of this honourable court directing the lower court to release the respondents on bail.”

The application was opposed by the appellants, who were respondents in the court below, After receiving arguments from learned counsel who appeared for the parties, the court below delivered a considered ruling.

In the course of the ruling, the court below per Oguntade, JCA, said inter alia, thus: –

“I must say that I do not see the application before me as an attempt to alter, vary or otherwise reverse the orders made by this court in its judgment of 15-6-99, Although the application employed the words “to vary its orders”, I think the essence and pith of the application is that the applicants be admitted to bail. In the judgment of 15/6/99, we had directed that the applicants be admitted to bail. If in the present application, the applicants were asking for their unconditional release, that would amount to a variation, I think it is more appropriate to say that the applicants are seeking from this court a consequential order arising from the failure of the 3rd respondent to comply with the order of this court that the applicants be arraigned before the Federal High Court”. The court below after reference to some authorities, then proceeded to grant bail to the applicants, It is against this ruling that this appeal was filed to this court by the appellants, The respondents also, being dissatisfied with the ruling of the court below, filed a cross appeal. Pursuant to their appeal, the appellants filed the following grounds of appeal.

They read without their particulars, thus: –

(I) The learned Justices of the Court of Appeal seriously erred in law in assuming jurisdiction to reverse part of its judgment delivered on the 15th June, 1999, entrusting the grant of bail to the respondents on the Federal High Court.

(2) The learned Justices of the Court of Appeal seriously erred in law in granting bail to the respondents when they clearly lacked the power and jurisdiction to do so,”

The grounds of appeal of the cross appellants are also reproduced without their particulars, thus:

“(1) The learned Justices of the Court of Appeal erred in law in not varying the consequential orders made in their judgment dated 15/06/99 when there was before them the prerogative order of prohibition dated 09/02/99 made by the High court of Lagos forbidding further proceedings in the various criminal charges preferred against the appellants before the failed banks tribunals.

(2) The Court of Appeal erred in law in not varying its consequential orders and releasing the appellants unconditionally having dismissed the respondents’ appeal in its entirety and upheld the decision of the lower court.

(3) The Court of Appeal erred in law when it refused to vary the order it made in its judgment of 15/6/99 when the said order was manifestly made without jurisdiction.

(4) The learned Justices of the Court of Appeal erred in law in holding at page 13 lines 26, 27 and 28 and line 1 of page 14 of the ruling of 6th day of July 1999, that the arraignment of the appellants at the tribunal was not an infraction of municipal and international law in force in Nigeria.”

But by a motion on notice dated 4th day of June, 2002, filed by learned counsel, Femi Falana acting on behalf of the 2nd respondent, prayed this court to make following orders in his favour. They are as follows: –

“(1) An order permitting Femi Falana, Esq. of Falana and Falana’s chambers to represent the 2nd respondent herein.

(2) An order granting leave to the 2nd respondent to file his brief of arguments out of time.

(3) An order deeming the brief of arguments filed by the 2nd respondent as having been properly filed and served.

(4) An order permitting the 2nd respondent to adopt the said brief and adduce oral arguments on same.”

Attached to this motion is a 16 paragraph affidavit deposed to by the 2nd respondent, namely, Otunba Olufemi Ajayi. For present purposes, paragraphs 3 – 12 of the affidavit deserve to be set down.

“Para 3.That as soon as the appeals herein were filed I specifically requested Mr. Femi Falana to represent me in this honourable court.

  1. That when Mr. Falana informed me that he could not take up this matter as Mr. Osuala was representing all the respondents, I wrote to Mr. Osuala to allow Mr. Falana to represent my interest in these appeals. A copy of my letter is attached and marked exhibit A.
  2. That when I asked Mr. Falana sometimes in february this year whether he had filed the necessary papers on my behalf he informed me that Mr. Osuala had filed a brief on behalf of all the respondents including me.
  3. That when I informed Mr. Falana that I was going to take up this matter in open court he advised me to speak to Mr. Osuala in order not to embarrass him in the circumstance.
  4. That thereafter I contacted Mr. Osuala and pleaded with him to discontinue his further appearance for me in this matter.
  5. That Mr. Osuala assured me that he would take urgent steps to withdraw his appearance for me before the hearing of the appeals.
  6. That when Mr. Osuala later received the hearing notice on behalf of the respondents including me he did not forward the hearing notice to me.
  7. That to my utter dismay when the appeal was heard on April 15, 2002 Mr. Osuala announced his appearance for all the respondents including me.
  8. That I only became aware two weeks ago when Mr. Femi Falana informed me that this appeal had been heard and judgment fixed for July 12, 2002.
  9. That although this honourable court has heard the appeal and adjourned the matter for judgment I have already filed and served my brief on the parties.”

As this court considered that this application is of immense importance to the applicant and to the administration of justice, the application was set down for hearing on the 20th June, 2002. On that day, Mr. Femi Falana, counsel for the 2nd respondent, moved his application in the presence of Mr. Emeka Ngige, learned counsel for the appellants/respondents Mr. Dickson Osuala was absent.

After due consideration of the affidavit filed by the 2nd respondent, I formed the firm view that the application has merit. Moreso, when it is manifest that the 2nd respondent had manifested his intention, by virtue of exhibit A, that he would prefer Mr. Femi Falana to represent his interests in this appeal. It is unfortunate that his wish in this regard appears not to have been respected. Be that as it may, bearing in mind that it is a cardinal principle in the administration of justice that a party to a suit ought to have the right to have a legal practitioner of his choice to defend his interests in any cause or matter, leave was granted to the applicant as prayed. In the result, leave was granted to Mr. Femi Falana to defend the 2nd respondent, and the brief of argument already filed on his behalf was deemed properly filed and served. Thereafter, Mr. Falana adopted and placed reliance on the said brief for the determination of the appeal. He also made further submissions on the issues raised in the appeal. Mr. Emeka Ngige also replied.

Pursuant to the rules of this court, briefs of arguments were filed and exchanged. For the appellants, their learned counsel, Emeka Ngige identified only one issue for the determination of the appeal. It reads: –

“Having regard to the grounds of appeal filed in this appeal, it is our respectful submission that the main issue for determination is simply whether the Court of Appeal had jurisdiction to entertain the applications of respondents and proceeding therefrom to grant bail to them irrespective of the fact that it had delivered its final judgment on the 15th of June, 1999 which thereby made it functus officio on the motions and the prayers in question.”

Now that it has been ordered that Mr. Femi Falana is the counsel for the 2nd respondent, brief and the issues for him will be considered separately from the issues canvassed in the brief earlier filed by Mr. Dickson Osuala for the other respondents, which included the 2nd respondent.

With regard to the 1st, 3rd – 27th respondents, these are the issues identified in the brief filed on their behalf by their counsel, Mr. Dickson Osuala. It would appear that those issues also cover the cross appeal of the respondents. The issues are:-

“(1) Whether the appellants have a competent appeal before the Supreme Court of Nigeria having regard to the provisions of s.15(2) Habeas Corpus Law Cap. 58, Laws of Lagos State.

(2) Whether an application challenging the respondent/cross appellants’ commitment to prison in exercise of the criminal jurisdiction of the defunct failed banks tribunals is a civil or criminal matter.

(3) Whether the lower court in a criminal cause or matter is competent to grant bail to the respondent/cross appellants pending the determination of the criminal appeal lodged by the appellants before the Supreme Court of Nigeria.”

For the 2nd respondent, learned counsel in the brief filed on his behalf in this court, only one issue was raised. This issue being, whether the Court of Appeal was right in admitting the respondents to bail having regard to the facts and circumstances of this case. In arguing the only issue raised for the appellants, it is apparent that learned counsel for the appellants anchored his argument on the following three grounds: –

“(1) Powers and jurisdiction of the Court of Appeal under section 16 of the Court of Appeal Act, Cap.75, L.FN. 1990; section 6(6)(a) of the 1979 or 1999 constitution and its inherent powers.

(2) When is the court functus officio over its judgment.

(3) Powers of the court to make consequential orders.”

In respect of the first base of his argument, it is his contention that section 16 of the Court of Appeal Act, which the court relied upon to hear and determine the applications of the respondents, did not vest such powers in the court. In support of that contention, he referred to several decisions of this court. These are Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt.16) 264; Ejowhomu v. Edok-Enter Industries Ltd. (1986) 5 NWLR (Pt.39) 1; Adekeye v. AkinOlugbade (1987) 3 NWLR (Pt.60) 214; Gombe v. PW (Nig.) Ltd. (1995) 6 NWLR (Pt.402) at page 402. It is also the contention for the appellants by their learned counsel, that the inherent powers of the court vested in it by section 6(6)(a) of the constitution of 1979 was wrongly applied by the court below to vest itself with jurisdiction to deal with the applications of the respondents. For that contention, reference was made to Odofin v. Agu (1992) 3 NWLR (Pt.229) 350; Obioha v. Ibero (1994) 1 NWLR (Pt.322) 503.

On the second base for his argument, which is, whether the court below was not functus officio when it heard the applications of the respondents. In the view of learned counsel for the appellants, the court below was functus officio when it heard the respondents’ applications for bail. This is because, argued counsel, that as soon as the court below delivered its judgment on the 15th of June, 1999, it became functus officio in respect of the motions filed by the respondents and all the prayers contained therein. See Mohammed v. Hussieni (1998) 14 NWLR (Pt.584) 108. With regard to whether the order made by the court below could be said to be a “consequential order” in relation to the earlier orders made on the 15th of June 1999, it is argued for the appellants, that if the court below per Oguntade, JCA had followed strictly the dictum in Obayagbona & Anor. v Obazee & Anor (1972) 5 SC 247, he might have refrained from hearing the applications of the respondents, This is because, he would have recognised that the orders sought in the applications could not be regarded as a consequential order upon the orders made by the court in its judgment of 15/6/99. Learned counsel for the appellants then submitted that for all the reasons given above, the appeal against the ruling delivered on the 6th of July, 1999 be allowed.

I have earlier in this judgment reproduced the three issues identified for the 1st, 3rd-27th respondents for the determination of this appeal. After a careful perusal of the 1st and 2nd issues, they cannot for the reasons given in the judgment of this court in SC 183/99 Comptroller Nigerian Prisons Service v. Dr. Femi Adekanye & 25 Ors. (2002) 15 NWLR (Pt.790) 318 be reopened in this judgment. The two issues are therefore dismissed for the reasons given in the said judgment. On the third issue, the contention of learned counsel for the respondents/cross appellants, is that the Court of Appeal acted competently in admitting the respondents to bail under section 16 Court of Appeal Act. The premise of this contention being that it is permissible for the court to give any of the orders, the court of first instance can lawfully give. He therefore urged that this issue be resolved in favour of the respondents.

For the 2nd respondent, the thrust of the argument of his learned counsel in his brief is that, the order admitting the respondents to bail by the court below was right. The premise of his argument is that the order granting bail to respondents did not detract in any material particular from the judgment delivered on 15th June, 1999. It is also his contention that the court below correctly applied the decision of this court in Obayagbona & Anor. v. Obazee (1972) 5 SC 247. I have set down all the arguments of parties to this appeal so as to be satisfied on what the appellants and respondents/cross appellants and the 2nd respondent depend upon for the success of their respective cases. It is manifest that their various submissions are all rooted in the judgment of the Court of Appeal delivered on the 15th June, 1999. Though the appeal was apparently focused on the ruling of the court below delivered on 6th July, 1999, yet it is clear that the application which led to the ruling was dependent upon the judgment of 15th June, 1999 remains valid. This is the judgment which was the subject of the appeal and against which the 1st, 3rd – 27th respondents also cross appealed in suit Sc.184/99, Comptroller Nigerian Prisons Services & 2 Ors. v. Dr. Femi Adekanye & 25 Ors (2002) 15 NWLR (Pt.790) 332. By that judgment, the decision of this court, is that the court below wrongly upheld the decision of the learned Judge of the High Court of Lagos State.

In the result, as the appeal and cross appeal in the instant case is based upon a judgment which this court has set aside, there is no reason to consider the merit of the appeal and the cross appeal. The appeal and the cross appeal will therefore be struck out, and they are struck out accordingly. The orders of the court below are also struck out as the judgment of that court has been set aside as stated above.


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