Stay Of Proceedings In Criminal Matters: To Be Or Not To Be (Part 2)

By Chief Mike Ozekhome, SAN, OFR

Section 287 (1) of the 1999 Constitution provides:

“The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court”.

Notwithstanding the finality nature of the Supreme Court, one can still challenge the decisions of the Supreme Court by approaching it to review same, rather than any person, the least expected, senior lawyers, casting aspersions on the eminent Justices and institution of the Supreme Court, who are not in a position to reply.

Let me emphasize that Justice hurried at the expense of due process and the exercise of constitutional rights of appeal by an aggrieved person, at whatever stage, is also justice denied. Indeed, it is worse than justice delayed. See NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LIMITED & ANOR. (2008) LPELR-2306(SC).

The Saraki case before the Supreme Court is simply that all trials before the CCT are merely for breaches of the Code of Conduct for public officers. They are not crimes strict sensu, as in penal statute books, such as the Criminal and Penal Codes and the EFCC and ICPC Acts. Hence section 23(3) the CCBT Act provides that even after a person has been tried and convicted by the CCT, he is still liable to be tried before the ordinary courts for the same criminal offences.

The attempt, therefore to elevate the Code of Conduct Tribunal into, or cloth it with, the toga of an anti- corruption court has failed, woefully, from the get-go. It is dead on arrival, as dead as dodo. It is therefore a mark of intellectual somersault to seek to portray the CCT set up to try recalcitrant public officers who did not get their paperwork right, even when advised to correct same by the CCB, into a superior criminal court.

Aside the CCT not being listed as a superior court in the Constitution, Section 23(3), thereof further reaffirms its inferior nature. The section would not have allowed double jeopardy for an accused person if it actually recognized the CCT as a superior court of record, since no one can be tried twice for the same offence.

But section 23(3) allows this because the legislature acknowledges the CCT more as a fact finding administrative and disciplinary tribunal, such as the Legal Practitioners Disciplinary Committee (LPDC), which can also penalize a Lawyer by debarring him from practice. That does not make the LPDC a court of law, notwithstanding that appeals lie directly from it, to the Supreme Court.

It will be a very sad day indeed, and may it never come, when a court of Law, any court of Law, for that matter, not to talk of the Supreme Court, is shackled and manacled, from interpreting the Law, its primary function and the very reason for its existence, by being viciously accused of illegality, rascality and bizarreness, in its pronouncements. Haba.

Stay of proceedings has always been part and parcel of our criminal justice system and it is so recognized by the Constitution (see infra), because our criminal justice system is accusatorial and not inquisitorial. The argument that because I clamoured for its abolition at the National Conference last year should prevent me from touching it, is banal. Yes, I did. But I had equally argued that not only should the Constitution be amended to abolish stay of proceedings, but that, Nigeria should, indeed, have a brand new, autochthonous, home-grown Constitution, not the present militarily imposed one.

The recommendations of the conference have not even been considered by the present PMB Government, let alone amending the Constitution to abrogate it. In the absence of this, it is inconceivable that anyone could stand logic and law on their heads by urging that a mere statute, ACJA, should abolish stay of proceedings, thereby supplanting and overriding ab initio, provisions of our grundnorm, an act forbidden and voided by Section 1(3) of the same Constitution.

Nor has the anti-corruption Court which I also clamoured for and was adopted by the conference been accepted and acted upon by the Federal Government. How can the CCT, a mere inferior tribunal, not recognized by Section 6 (6) of the Constitution as a superior Court, be elevated to an anti-corruption Court? Some commentators make me laugh.

Fundamental rights are inate in us, God given and inalienable. No one can tinker with them on the alter of a so called anti-corruption mantra, in our present constitutional democracy, without dire consequences. This is not a military dictatorship, absolutism, or fascism.

In Odeyale vs. Babatunde & Ors (2009) LPELR-8859 (CA), the Court of Appeal held: “It is essential in a constitutional democracy, such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the Rule of Law which includes according fair trial to the citizen under procedural regularity, and, for checking arbitrary use of power by the Executive or its Agencies, the power and jurisdiction of the courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interference with, or a usurpation of, the authority of the courts, as aforestated, is to strike at that bulwark which the constitution gives and guarantees to the citizen, of fairness to him, against all arbitrariness and oppression.”

Outlawing any form of ouster clause, the apex Court in FRN v. Ifegwu (2003) LPELR-3173, dilated: “I have no doubt that this confirms the logic that no ouster clause is ever intended, or has that monstrous effect, to confer powers on an inferior tribunal to be able to flout and transcend the very purpose of the law it seeks to enforce by precluding a competent court from intervening in any event, no matter to what extent that tribunal exceeds its jurisdiction. That will simply lead to judicial anarchy permitted to be caused by inferior tribunals.”

Similarly, on ouster clauses, the Supreme Court in JOMBO V. PETROLEUM EQUALISATION FUND (MANAGEMENT BOARD) & ORS (2005) 4 F.W.L.R. 2335, held, Per PATS-ACHOLONU, J.S.C, thus: ”Courts are not frightened of an ouster clause. They respect it but when an ouster clause seeks to make it impossible for the courts to protect the common man, and make laws which cannot stand the test of reason or that is affront to decency and intelligence, then a court should be careful not to lend weight to a law that would make it enemies of common man and not the last hope of the common man.

Since the right of an individual is affected the court seized of the matter ought to carefully examine all the circumstances of the case with a view to discovering whether it fits into the orbit of the intendment of the statute. To close its eyes to the sinister tenor of ouster provision of the statute would amount in my view to abrogation of its Constitutional responsibilities. The court should always see itself as knight errant in a shinning armour brandishing its sword to help the hopeless and evenly seen not to collaborate with forces that choke and asphyxiate the rights of people thereby forcing them into the limbo of disillusionment and frustration”.

The provisions of Order iv Rule 4(iv) of the Fundamental Rights (Enforcement Procedure) Rules made pursuant to Section 46 (1) and (2) of the 1999 Constitution, thus clothing it with constitutional flavor, superior to a mere statute, such as the ACJA, nails the coffin of sections 306 and 396 ACJA, when it provides that a court may “grant Injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of the application”. This simply means that stay of proceedings and injunction are permitted. Period.

Author: NewsAdmin

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