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Saraki’s Stay Of Proceedings Debate: Questions For Mike Ozekhome By Malachy Ugwummadu

November 19, 2015

The “considered” ruling of the Supreme Court of Nigeria granting a stay of proceedings in the celebrated case of Federal Republic of Nigeria V Dr. Bukola Saraki has dominated public discourse since it was handed down on Thursday 12th November 2015. Understandably the legal community has had a fair share of this debate provoked most logically by Femi Falana SAN who critically intervened by making the following clear points:

    •    It was wrong for the Supreme Court to have reversed the gains painstakingly made with the combined provisions of Sections 306 & 396(2) of the ACJA 2015 which oust the jurisdiction of the courts to entertain applications for stay of proceedings in criminal trials.

    •    Section 396 (2) is to the effect that any objection (including preliminary objections) shall only be considered along with the substantive issue.

    •    The philosophy and intendment of the legislature in enacting those provisions of the Act were aimed at stopping the endless trials of criminal cases in Nigeria through frivolous and interlocutory applications and Appeals particularly as they relate to politically exposed persons (PEPs). In other-words, the attainment of justice in our courts must be through the rules of the court meant to be followed and complied with.
    •    It was the further contention of the learned silk that the Code of Conduct Bureau Tribunal erred when it entertained and ruled on the application for stay of proceedings before hearing the substantive issue as enjoined by Section 396(2). It was this error that occasioned the appeals from the Court of Appeal which refused it and then to the Supreme Court where it was unfortunately granted.

First, it must be noted, and the impression must never be created out there that Supreme Court’s rulings, decisions, and Judgments should not and cannot be criticized. To insist on this will unwittingly compromise the prospect of legal advancement and creativity which is the only guarantee in the judicial process by which the judiciary can cope with the ever dynamic needs of the society. The very idea of approaching the Supreme Court or any other appellate Court for that matter is not just a civilized act of protest but also criticism on the judgment appealed against. In this regard, we genuinely commend Femi Falana (SAN) who has taken the lead on this issue as well as other well-meaning Nigerians in balancing what has now turned out more like a class struggle. Increasingly, we have seen a clear tendency by which the ruling class has found a way of shielding themselves from criminal prosecutions. How many “ordinary” Nigerians have successfully sustained an application for stay of proceedings in a criminal trial or obtained an interim or perpetual injunction pending determination of their substantive suits or trials? To drag the judicial into this “unholy contestation” is a recipe for chaos and anarchy.

Secondly, even the practice of dissenting judgments in our appellate Courts where Justices differ with one another in their judgments reinforces the need for critical evaluation of every judgment even by the apex court. It is healthy and encourages the development of the law for the benefit of the society at large. For instance, in amending the Electoral Act 2006, Section 141 was inserted into the Electoral Act 2010 to deal with the deep concerns generated and thrown up by the dissenting Judgment of Supreme Court in Ameachi V INEC (2008) 5 NWLR (pt.1080) bordering on the capacity of the electorates to express their sovereign will and preferences through the electoral processes. Section 141 of the Electoral Act 2010 provides thus:

“An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election ”

Thus, criticisms in that sense are very healthy and welcomed bearing in mind that even the panel of Justices, however, profound in knowledge and principle are also human beings that are not beyond fallibility.

Such criticism as Mr. Falana, and other learned experts who concurred with him made must be encouraged once they are made in good faith and with a view to advancing the law and safeguarding the sanctity of society. Opinion leaders of both the Bar and society must not shy away from such constructive criticisms. We certainly can criticize judgments of the Supreme Court in the same manner that we can laud their judgment/rulings when necessary which is what Femi Falana (SAN), Gboyega Awolomo (SAN) and others have done. What we cannot do is to appeal against the judgment of the Supreme Court even if we disagree with it.

In the inimitable words of the Revered Hon. Justice Chukwudifu Oputa (of blessed memory), in the case of UTC V Pamotie

“the Supreme Court is final not because it is infallible but it is infallible because it is final”    

In supporting the stay of proceedings granted by the Supreme Court in the case of Federal Republic of Nigeria v. Dr. Bukola Saraki, Mike Ozekhome (SAN) has criticized the stance of Mr. Femi Falana (SAN) and Chief Gboyega Awomolo SAN on the subject matter. While admitting that stay of proceedings has been prohibited by the Administration of Criminal Justice Act, 2015, Chief Ozekhome says that it is only applicable to trials courts. In his view, the appellate courts can continue to stop or suspend criminal cases in trial courts by indiscriminately granting a stay of proceedings. We consider his outing is an unfortunate intervention in the ongoing debate on the correct interpretation of the section which has prohibited the reckless suspension of the criminal cases involving privileged people in the country.

Chief Ozekhome has carefully ignored the effect of Section 396 of the Act to the effect that ruling on all preliminary objections filed by accused persons shall be delivered together with the judgment in the substantive case. Is Chief Ozekhome saying that the section has not effectively banned the filing of interlocutory appeals? If interlocutory appeals cannot be filed pending the conclusion of criminal trials, on what basis then is Chief Ozekhome saying that the Court of Appeal and the Supreme Court are empowered to grant a stay of proceedings? 

Assuming without conceding that Chief Ozekhome is right, can a party be allowed to file a stay of proceedings in the appellate court when it cannot be filed in the trial court? Was he allowed to file a similar application in the case of FRN v. Lawan Farouk in which he is representing the Defendant? Surely, we do not buy that argument because that has not been his practice including a similar recent application he made in the case of FRN V Farouk Lawan where he exhibited the certified copy of the ruling of the lower court in his application before the court of appeal 

Chief Ozekhome says that “where the provisions of any law are in consistent with the provisions of the Constitution, such law will be void to the extent of such inconsistency. Certainly, this is a trite constitutional provision yet; he has failed to point out what section of the Administration of Criminal Justice Act that contravenes any provision of the Constitution. Is Chief Ozekhome not aware that stay of proceedings is not provided for by the Constitution but by the rules of courts which are inferior to the Constitution and all Act of the National Assembly? Indeed, every law student is aware that a motion for stay of proceedings can only be filed in the Court of Appeal after it has been dismissed by a trial court. It is the trite law that motion for stay of proceedings in the Court of Appeal is not ripe for hearing without exhibiting the ruling of the trial court. Since the filing of stay of proceedings has been prohibited in the trial court, it cannot be disputed that neither the Court of Appeal nor the Supreme Court can entertain same as a court of the first instance. We, therefore, urge the Supreme Court to discountenance the highly misconceived and irrelevant submissions of Chief Ozekhome as he has not succeeded in controverting the points of law well argued by Mr. Falana.

The civil society community particularly the CDHR is deeply interested in the dimension of this legal event and shall take a decisive step in favor of the masses of this country depending on where the pendulum of this contestation falls. 

Malachy Ugwummadu Esq.
National President CDHR