Timipre Sylva V. Federal Republic Of Nigeria (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering The Lead Ruling)

This is an application brought pursuant Constitution, Order 7 Rules (1) and (10), and Order 8 Rule 4 of the rules of this court, and the inherent jurisdiction of this court.

It is for the following orders:

1. An order for the enlargement of time, within which the applicant may compile and transmit the record of appeal to this court, in respect of the ruling of Hon. Justice Adamu Bello, sitting at the Federal High Court, Abuja, delivered on the 30th of may, 2013, in charge No.FHC/ABJ/CR/23/2012.
2. An order of this court deeming the record of appeal compiled and transmitted by the applicant, duly complied and transmitted.
3. An order staying further proceeding before the Federal High Court in Charge No. FHC/ABJ/CR/23/2012, pending the hearing and determination of the appeal against the ruling of Hon. Justice Adamu Bello, delivered on the 30th of may 2013; and any such order or orders as this court may deem fit to make in the circumstances.

The application is brought on the following grounds:

1. The trial Federal High Court by its ruling delivered on the 30th day of May, 2013 refused the Appellant/Applicant’s application seeking to squash the six (6) counts charge against him and the Appellant promptly filed an appeal against the ruling;
2. However, the Registrar of the lower court failed and/or omitted to conclude the compilation and transmission of the record of appeal to this Honourable Court within the time allowed by the Rules of court inspite of all the efforts of the Appellant;
3. Appellant/Applicant was also not able to compile and transmit the record of appeal within the time allowed by the Rules of the Court of Appeal;
4. Appellant/Applicant has now compiled and transmitted the record of appeal, albeit out of time and appeal No:CA/A/9C/2014 has been given to the appeal;
5. This Honourable Court has the power to grant an extension of time within which the Appellant/Applicant may compile, transmit and serve the record of appeal to this Honourable Court and deem same properly done;
6. The grounds of Appeal contained in the Notice of Appeal raise constitutional issues that are recondite, cogent, substantial and/ or arguable;
7. The issues raised by this Appeal are issues which cannot await the conclusion of trial, or the delivery of the lower court’s final decision on the pending charge(s), as the jurisdiction of the lower court is being challenged on appeal;
8. The decision of this Honourable Court in respect of the ruling of the lower Court refusing to quash the charges against the Appellant/Application will affect the pending trial before the ower Court;
9. The decision of this Honourable Court regarding this appeal will be rendered nugatory if this Honourable Court refuses this application and lower court proceeds with the trial;
10. The criminal charge/proceedings is an abuse of the process of the court and the determination of the criminal charge is likely to render the Appellant’s right sought to be protected null and void;
11. Unless an extension of time is granted to compile and transmit record of appeal, Appellant/Applicant would not have the opportunity to place his case properly before the court.

The application is supported by a 21 paragraph affidavit deposed to by Akeem Umoru, Esq., with the ruling of the Federal High court of the 30h of may, 2013, presided by Hon. Justice A Bello attached as exhibit A and the notice and grounds of appeal.

The respondent filed a three paragraph counter affidavit deposed to by Daniel Ajibulu in opposition to prayer 3; and prayers 1 and 2 on point of law, specifically that the prayers are incompetent by being contrary to the rules of this court.

FACTS IN BRIEF:

On the 30th of May, 2013, the lower court delivered a ruling, refusing the accused/applicant’s application for quashing the six count charge preferred against him; dissatisfied, the applicant appealed against the said ruling.

Lateef O. Fagbemi SAN formulated a sole issue for determination as: whether in view of the facts in this application and the affidavit evidence placed before the court, this is not an appropriate situation for the exercise of the court’s discretion in granting this application; and submitted on prayers 1 and 2 that this court has inherent powers to grant the prayers sought, and it is also empowered by virtue of Order 7 Rule 10(1) of the rules of this court.

That the applicant has placed cogent reasons before this court for his non compliance, which are sufficient to entitle him to the exercise of the discretion of this court in his favour; he referred the court to AHMADU SALAWU (1974) ALL NLR part 822 at 826 and SHONU V AFRIBANK NIG. PLC (2000) 13 NWLR part 684.

That also it is in the interest of justice to grant the application for extension of time to compile and transmit the record of appeal in this matter; as a corollary to which it is equally the imperative to grant the application to deem the said record of appeal already compiled and transmitted as proper and regular.

Learned counsel further submitted that the right of the applicant to appeal is constitutional; he referred this court to LONG-JOHN V BLACK (1998) 6 NWLR part 555 at 542.

On prayer three learned counsel submitted that all courts have inherent power to grant an application for stay of proceedings; he referred the STATE V AJAYI (1996) 7 NWLR part 423 at 169 and EZE V OKOLONJI (1997) 7 NWLR part 513 at 517; that the applicant has advanced material both in affidavit evidence and documentary evidence to warrant the grant of this application i.e. by Exhibit B, the notice and grounds of appeal, and paragraphs 4, 5, 17-20 of the affidavit in support of the application, and also that if prayer three is not granted the decision of the court of appeal will be rendered nugatory.

Learned counsel also submitted that the applicant may be compelled to go through a trial which he ought not to face, and thus bring to issue the applicant’s right to fair hearing; he referred to ALAMIEYESIEGHA V F.R.N (2006) 16 NWLR part 1004 at 1.