Chief Diepreye Solomon Peter Alamieyeseigha V. The Federal Republic of Nigeria & Ors (2006)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

This is an appeal against the ruling of the Federal High Court, Lagos (per M.L. Shuaibu, J) delivered on 23/12/05. In the said ruling, the application for stay of proceedings and for striking out the 40 counts charge(s) against the 1st Accused/Appellant (hereinafter called “the Appellant”) was refused and dismissed. The Appellant who is dissatisfied with the ruling of the trial court now appeals against it in this court… The facts leading to Appellant’s application before the trial court (the subject – matter of this appeal) as stated in and gathered from the two briefs filed in this appeal are as follows:-

The Appellant who is the former Executive Governor of Bayelsa State was impeached by the Bayelsa State House of Assembly on 9/12/05. After his impeachment the Appellant was immediately arrested and detained by the Economic and Financial Crimes Commission (EFCC) which filed the above mentioned criminal charges against him and 7 others (i.e. 1st – 7th Accused/Respondent) for money – laundering and other economic and financial crimes or offences. The charge and proof of evidence were served on the said Appellant on 19/12/05 and he was brought to the trial court for an arraignment on the following day (20/12/05). The 2nd – 5th Accused/Respondent (also hereinafter called “the 2nd – 5th respondents) were also served with the above mentioned criminal processes on the same day with the Appellant while the 6th – 8th Accused/Respondent (hereinafter called “the 6th – 8th respondent”) were served on 22/12/05. When the case came up for arraignment on 20/12/05 and upon the objection raised by the Appellant learned senior counsel, the matter was adjourned to 23/12/05 for the plea of all the respondent to be taken on that date. However, on 21/12/05, the learned counsel for the appellant filed a motion for stay of proceedings and for the charges to be struck out for their being brought contrary to the provisions of the Criminal Procedure Act (CPA) and the Federal High Court Act. It was on this subsequent motion brought by the Appellant which was refused and dismissed by the learned trial judge who proceeded to take the plea of the Appellant and 2nd – 8th respondent that present appeal is based and brought or filed by the Appellant in this court.

It has to be mentioned at this onset that although the 2nd – 8th respondents were respectively represented by their learned counsel at the hearing of the appeal by this court on 7/3/06, they were so represented as mere nominal respondents in the present appeal and the main battle is between the Appellant and the 1st Respondent as the only parties who filed briefs of arguments. Thus all the other nominal respondents who did not file briefs of arguments and did not seek to do so at the hearing, have chosen or opted to abide by whatever is the outcome or whatever decision is given by this court in its final determination of the appeal. Consequently in this judgment, we have only the two briefs (of the appellant and 1st respondent) which were filed in accordance with the rules of this court to consider. It is also pertinent to state at this stage that the appellant’s motion for stay of the proceedings at the lower court dated 16/1/06 and filed on 17/1/06 which was pending in this court was withdrawn on 7/3/06 with the mutual consent of all the learned counsel and struck out by this court before the commencement of hearing of the present appeal.

In the appellant’s brief, dated 8th February, 2006 and filed the next date (9/2/06) five (5) issues for determination of the appeal are formulated. (see page 3-4 thereof); they are as follows:-

“ISSUES FOR DETERMINATION

1. Should the trial Judge not have struck out the action on the ground that same was not commenced in compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act?
2. Was the trial Judge right in refusing to countenance and or place any reliance of (sic) the documents exhibited to the affidavit in support of the appllcalion of the 1st accused (appellant) on the ground that they are inadmissible.
3. Was the trial Judge right in holding that exhibit OD4 is inadmissible, if he was wrong in so holding, what should have been the effect of this on the application of the 1st accused (appellant).
4. Having refused to countenance the exhibit attached to the affidavit evidence, should the trial Judge not have considered the uncontradicted facts in the affidavit evidence to grant the reliefs sought?
5. should the criminal proceedings before the trial court be stayed?

In the 1st respondent’s brief, only two (2) issues for determination are framed or distilled as follows:-

“Issues for determination

It is submitted that there are only two issues arising for determination by this court having regard to the decision of the lower court and the grounds of appeal filed by the appellant. The issues are:-

1. Whether the charge against the appellant was not initiated in substantial compliance with the provision of the Criminal Procedure Act and the Federal High Court Act (see ground 6).
2. Whether the lower court was wrong in refusing to stay criminal proceedings in charge No. FHC/L/328C/2005 pending the hearing and final determination of the two civil actions in suits Nos. FHC/ABJ/CS/622/2005 and YHC/173/2005 (see grounds 1, 2, 3, 4, 5 and 7).

It is clear from the above reproduced issues in the two briefs that even though the said issues are different in their numbers or wordings they are however substantially the same in both briefs. Thus, the learned counsels for the parties have mutually accepted the real issues calling for determination in the appeal. For the purpose of this judgment, I will adopt the two issues, as formulated above in the 1st respondent’s brief. The appellant submissions (under his 5 issues) which are relevant to the 1st respondent issues will be duly considered along the line. This approach to the issues in the two briefs is in order and in consonance with the oral submissions canvassed by the learned counsel for the parties where the real issues in the appeal were narrowed down into two main complaints by the appellant in the appeal. The first complain is against the irregularity in the procedure for the filing of criminal charge or action in Federal High Court which was said to be done contrary to the provision of the CPA and the Federal High Court Act (FHCA). The appellant’s second complaint is on the trial court refusal to grant his application for stay of the criminal proceedings against him which were instituted before the said trial court. Therefore on the issues as narrowed down by the learned counsel, the appellant issues can be categorized into two. Thus based on the two topics the appellant issues can be merged so that issue one (on the procedural error under the CPA and FHCA) can be considered as one issue while issues 2, 3, 4 and 5 (which are on stay of proceedings at the trial court) can be considered together as his 2nd issue or a reply to 1st respondent’s 2nd Issue.

Under issue No 1 of the appellant’s brief which also corresponds to Issue 1 of the 1st respondent, the main complaint of the appellant is against the refusal of the learned trial judge to strike out the charge(s) or the criminal action against him on the grounds of non-compliance with the provisions of the Criminal Procedure Act and the Federal High Court Act (supra) in the initiation of the action or the criminal prosecution of the said appellant before the lower court. Under the issue it is pointed out in the appellant brief that both the appellant and the prosecution (i.e. 1st respondent) agreed at the trial court that the criminal prosecution in the present case is regulated by and can only be initiated in accordance with the provision of Section 77 of the CPA – See the ruling of the learned trial judge at page 96 of the record of appeal referred to in the appellant’s brief. The provision of section 77 of the CPA (supra) is also reproduced in-extenso in the brief and it is submitted that the relevant provision of section 77(b) (i) must be read together with section 72 of the Act specifically referred to or mentioned in the paragraph of the subsection under which the Attorney-General is vested with the power to file the information. Thus the appellant contends that for a criminal prosecution to be initiated before the Federal High Court as in the instant case, all the requirement or prerequisites for the filing of an information must be satisfied. These include the filing of a formal application for leave to prefer a charge by the Attorney-General of the Federation. In this regard section 340 of the Act (i.e. CPA) is cited by the appellant under which the leave or consent of the judge is made a prerequisite to the filing of such an information. It is pointed out that the requirement for the leave of court before filing an information under the CPA is still applicable in the criminal trial or prosecution at the Federal High Court even though it is conceded that such requirement has been abolished in Lagos State under the Administration of Justice (Miscellaneous Provisions) Edict No.4 of 1979 and the Criminal Procedure (Amendment) Edict 1987. The celebrated case of Ikomi vs. The State (1986) 3 NWLR (PT 28) 340 where it was held that the requirement for leave to file information is still applicable under the CPA in Bendel State is cited in the brief in support of the above contention of the appellant. On the basis of the above submission, the appellant’s brief criticizes the finding of the learned trial judge (at page 97 of the record) that the requirement for leave or filing of information is not applicable or is not a condition for the initiation of a criminal trial in the Federal High Court by virtue of section 33 (1) and (2) of the FHCA.

On the procedure for the initiation of summary proceedings (or trials) before a Magistrate Court or a High Court, the appellant submits that in the present case, the proceedings should have been initiated by way of information since they were before the High Court. It is only when the criminal proceedings are initiated in the Magistrate Court that they can be made or brought by a complaint whether or not on oath (i.e. summarily) in accordance with section 77 (a) and (b) (iv) of the CPA. It is submitted that even under the summary procedure before the Magistrate Court, the manner for the filing of such complaints as provided for in sections 59 (i) and 60 (i) – (iv) as well as the form by which they can be brought were not complied with or satisfied. The two subsections as well as the form (Form No 3) of the complaint are reproduced in the appellant’s brief. Thus, it is argued by the appellant that the complaint in the instant case had not been made before or to the trial judge (in chamber) who is required to record and sign it under the above provisions of the CPA. It is also the appellant’s contention that another requirement for the filing of a complaint, namely that the judge after according and signing it must also issue a summons to compel the attendance of the accused person in the court, was also not satisfied in the present case. See section 81 of the CPA read together with section 33(1) of the FHCA cited in support of the appellant’s submission. It is suggested that for the proper application of the above cited provisions, it is necessary to modify the said provisions by modifying them and by substituting the word “Magistrate” with the words “a judge of the Federal High Court”. Finally, the appellant’s brief submit that in view of the appellant’s argument as canvassed above, the learned trial judge should have struck out the action or the criminal charges brought against the appellant as they were not properly initiated in accordance with the provisions of the law.

In the 1st respondent’s brief, the reply on the above submissions of the appellant on issue 1 covers 11 pages (pages 3 – 14 thereof). The issue is said to emanate from the alternative prayer (No.3) of the appellant in his motion on notice at the trial court-see page 21 of the record. The prayer is also said to be supported only by paragraph 10 of the supporting affidavit. Also the short submission or argument of the learned senior counsel for the appellant at the said trial court in support of his 3rd (alterative) prayer is reproduced in the 1st respondent brief to show that what was canvassed under the said issue is only predicated on the ground that the leave of the Chief Judge of the Federal High Court was not obtained before filing the charge and this failure amounted to non-compliance with section 77 (b) (1) of the CPA. It is pointed out in the brief that the lower court duly considered the simple submission of the appellant’s counsel and found or resolved that there was no need to leave before filing a charge in the Federal High Court. It is conceded in the 1st respondent’s brief that section 77 of the CPA regulates the method or procedure for instituting criminal proceedings at the High Court. The relevant provisions of the section 77 are reproduced in the brief and it is submitted that the provisions or procedure recommended under the section are only applicable where there is or are no other enactment(s) providing the contrary method or procedure for instituting a criminal trial or proceedings at the said High Court. It is pointed out that the main provision of the section provides in a very clear and unambiguous term (or words) that it applies only subject to the provisions of any other enactment. The 1st respondent therefore urges this court to give the words used in the main provision of the section their ordinary meaning as recommended by Lord Simmon in Magor and St. Mellons Rural District Council vs. Newport Corporation (1952) A.C. 189 at 191 and followed by the Supreme Court in Awolowo vs. Shagari (1979) 6-9 SC 51; and NDIC vs. Okem Enterprises Ltd (2004) 10 NWLR (PT. 880) 107 at 183: cited in support of the preposition. It is then submitted in the 1st respondent’s brief that in line with the above rule of interpretation, section 77 of the CPA (supra) only applies subject to and is inferior to the provision of section 33(2) of the FHCA (supra) which also provides for the institution of criminal proceedings at the Federal High Court and prescribe that it should be by way a summary trial. Thus it is suggested in the 1st respondent’s brief that the substantial compliance with the CPA recommended or envisaged in section 33(1) of the FHCA should be modified to conform with section 33(2) recommending a summary trial proceedings in the Federal High Court. The definition of a summary trial or proceedings as given in Black’s Law Dictionary (6th Edition) page 1204 (see also 8th Edition, page 1242) as well as section 2 of the CPA are cited and quoted in the 1st respondent’s brief to show that the procedure therefore is prompt, short, simple and out of the regular course of the common law procedure or practice. Section 277 of the CPA which gives a more vivid description of a summary trial is also cited and reproduced in the 1st respondent brief. It is submitted that by the combined reading or effect of sections 77(b) (i) and (iii) and 277 of the CPA on a summary proceedings a trial by the filing of information or securing leave to prefer charge(s) is excluded. Also on the above provisions of the CPA, the brief contends, a criminal trial before the Federal High Court cannot be instituted by way of information. Rather they are to be instituted and conducted summarily or under a summary trial proceedings in the same manner as in the Magistrate Court.

On the manner of commencing or initiating a summary trial, the 1st respondent (in its brief) refers to sections 77 (a) and (b) (iv) and 78 (a) and (b) of the CPA and submit that a trial or prosecution can be initiated or instituted by way of complaint where an accused person is not in custody in order to compel his attendance. Where the accused person is already in custody or he has been arrested as in the instant case, the respondent submits, all that the prosecution needs to do is to bring him before the court on a charge sheet in accordance with section 78(b). It is also the respondent’s contention that even under section 77 (b) (iv) the word “complaint” can also be interpreted to mean “a charge” – see Blacks Law Dictionary 8th Edition page 303 where such a definition can be found: see also section 2 of the CPA; Obike vs. L.P.D.C. (2005) All FWLR (PT 274) 337 at 408; (2005) 15 NWLR (Pt. 949) 471 (per Pats Acholonu JSC) and criminal law and procedure of the Southern States of Nigeria (3rd Edition) by Akinola Aguda at p.19 paragraph 116 for similar definitions cited in the brief.

The 1st respondent also submits that the Federal High Court is a court of summary criminal jurisdiction by virtue of section 33(2) of the FHCA. It is therefore regular before that court to initiate a criminal proceeding by filing a charge – sec Oluwatoym vs. Doherty (supra) “Criminal Procedure in Nigeria Law and Practice” at p.71; by Aguda (supra); section 27 and 78 of the CPA cited in the brief in support of the submission. This court is urged by the 1st respondent to uphod the finding of the learned trial judge at page 97 of the record of appeal where he re-stated and affirmed the above position of the law. On the question of whether or not leave of the judge is required for filing a charge in the Federal High Court, the respondent submits that leave is only required where an information is filed in the initiation or commencement of a trial (under sections 77 (b) (1) and 72 of the CPA). Consequently, the respondent argues, since what was filed in the present case was a charge rather than an information (by the AG of the Federation) no leave is required. The holding of the learned trial judge to that effect (at page 77 of the record) is said to be right and proper. The case of Ikomi vs. The State (supra) heavily relied upon by the appellant’s counsel is also said to be inapplicable to the present case which was initiated by the filing of a charge rather than an information. The appellant’s contention based on the authority of that case is said to be misconceived. It is pointed out in the 1st respondent brief that no leave of a Magistrate is required under the law for initiating a summary trial before the Magistrate Court.

Under another heading of its brief on the 1st issue the 1st respondent raises the question of whether the issuance of summons is mandatory for an accused person who is already in custody. The question is answered in the negative and the emphasis placed by the appellant’s learned senior counsel on the need or necessity for the learned trial judge to issue a summons to compel the appearance of the appellant at the trial court and issue a summons in order to secure the attendance of the said appellant in accordance with section 81 of the CPA is said to be uncalled for or misconceived. Reference is made in the brief to section 78 (b) of the CPA which provides for the proceeding in the Magistrate Court where it is stated that an accused person who has been arrested without a warrant can easily be brought upon a charge or on a charge sheet containing some particulars. It is argued that the particulars required to be on the charge sheet under that provision have all been supplied or complied with by the prosecution (1st respondent) in the present case and there was therefore no need for the trial judge to issue any summons to compel the appearance of the appellant who was already in custody. It is stated in the brief that the issuance of summons or warrant of arrest is meant to compel or secure the attendance of an accused person in the court and even when they are not issued, that failure will not affect the validity of the proceedings or the jurisdiction of the court – see Okotie vs. C.O.P. (1959) 4 FSC 125 cited in support of the 1st respondent’s above argument. On the suggestion of the appellant’s counsel (at p. 11 of his brief) that the trial court should interpret or modify the provision of section 59 of the CPA by substituting the word “Magistrate” used therein with the word “Judge”, the 1st respondent criticizes that suggestion as being contrary to the golden rule of interpretation of statutes or statutory provisions which are clear and unambiguous and the courts are enjoined to give them their ordinary meaning. The courts are also prohibited by the said golden rule from importing into the legislation or statutory provision words or meanings not intended by the legislature – see Fawehinmi vs. I.G.P. (2000) 7 NWLR (PT. 665) 481 at 529 cited in support of the preposition. The 1st respondent’s brief also points out that the appellant’s argument relating to issue 1 before the lower court concentrated on the failure of the prosecution to obtain the leave of the trial judge before filing the charge against the said appellant. The decision of the lower court is also said to be based on that issue or point as canvassed before it by the said appellant. In view of this, the 1st respondent argues in its brief that by now raising another issue or point on the trial court’s failure to issue a criminal summons against the said appellant, which issue was never raised at the lower court, the said appellant or his learned senior counsel are raising a fresh issue before this court as an appellate court. This is said in the 1st respondent brief to be contrary to the settled principle of law that a party wishing to raise such a fresh issue on appeal or before an appellate court which issue was not raised or canvassed at the lower court can only do so after or upon seeking and securing the leave of the appellate court to do so. See Kadzi International Ltd v. Kano Tannery Co. Ltd. (2004) 4 NWLR (PT 864) 545 AT 564 – 565, Ojabo vs. Inland Bank (Nig) Ltd (1998) 11 NWLR (PT 574) 433; and Akaare Jov. vs. Kutuku Dom (1999) 9 NWLR (PT 620) 538 cited in support of the above submission in the 1st respondent brief.

The 1st respondent finally urges this court to hold that the charge against the appellant in the instant case was initiated in substantial compliance with the provision of the CPA and the FHCA and to resolve the appellant’s issue No.1 (which also corresponds with the 1st respondent Issue 1) against the said appellant.

After careful consideration of the above submissions on the 1st issue in the two briefs filed in this appeal, the gravamen of the appellant complain under the issue is against the failure or refusal of learned trial judge to strike out the action for non-compliance with the procedural rules (under both the CPA and FHCA) by the respondent (the prosecution) in filing or initiating the said action. More properly put in other words, the appellant’s main grudge is against the refusal of the learned trial judge to strike out or quash the charges said to be wrongly brought before him by the prosecution for its non-compliance with the procedural rules under both the CPA and the FHCA. In order to resolve the issue it therefore becomes necessary to consider the manner or way of filing of criminal proceedings before the Federal High Court as provided for under the above mentioned rules of criminal procedure. It is both pertinent and relieving to note at the onset that parties have (in their briefs) agreed that the two sets of procedural rules (i.e. the CPA and the FHCA) and their relevant provisions are applicable and relevant as they both provide for or regulate the institution or initiation of criminal proceeding before the trial court (the Federal High Court) in the present case. All the detailed argument or submissions of the parties under the Issue have already been set out and they need not to be repeated. I will consequently go straight to the resolution of all the points raised from the submissions under the issue.

All the argument or submissions of the parties revolve on the interpretation of the relevant statutory provisions in the two laws on the institution or initiation of a criminal proceeding (or prosecution) before the High Court of a State vis or vis the Federal High Court. Interpretation of statutory provisions or legislation as raised under the issue is a subject or area in which our law reports are replete with a plethora of judicial decisions by our superior court (i.e. the Supreme Court and the Court of Appeal). The canons of statutory interpretation and the golden rule thereof have been restated on several occasions. These golden rules or principles governing the interpretation of statutory provisions have been succinctly summarized by the Supreme Court in its decision in the case of Ejuetami v s. Olaiya (2001) 18 NWLR (PT. 746) 572 at p. 593 as follows:-

“(1) that it is the intention of the legislature that is being sought (i.e. the intention of the writer of the document or the statute.

(2) that the intention is to be desired (or ascertained) from the words of the Act alone and not from other sources.

(3) that the words used are to be given their “ordinary and natural sense” (or meaning) i.e. the legislature is to be presumed not to have put a special meaning on words.

(4) that the court is not concerned with the result of its interpretation: it is not the court’s province to pronounce on the wisdom or otherwise of the Act but only to determine its meaning (see Pearce on Statutory Interpretation, page 13).” ((Italics is for emphasis).

In addition to or to supplement the above, there are other rules on statutory interpretation also developed by our superior courts as they relate to the duty of the court. For example where a party to a suit complains that the provision of a statute has been breached against him or the mandatory provision has not been complied with as in the present case, thus making the interpretation of a statutory provision an issue, it then becomes the duty of the courts (whether at the trial or appeal levels) to examine the act or acts complained of (by commission or omission) and compare it (or them) with the relevant statutory provision and resolve appropriately whether there was a breach, non-compliance or substantial compliance with the law in question. A statutory provision cannot therefore be waived but must be considered by the court and given effect to whether cited by the counsel or not – see Attorney General Adamawa State vs. Ware & Ors. (2006) All FWLR (PT 306) 860 at 871 – 872, (2006) 4 NWLR (Pt. 970) 399; Anzaku vs. Governor Nasarawa State (2006) All FWLR (PT 303) 308 at 339; Miscellaneous Offences Tribunal vs. Okoroafor (2001) 18 NWLR (PT 745) 295 at 355; IBWA V. Imano (Nig) Ltd (1988) 3 NWLR (PT 85) 633; Salami vs. Chairman LEDB (1989) 5 NWLR (PT 123) 539; Balogun vs. NCSB (2003) 2 NWLR (PT 804) 389 AT 397; Owena Bank (Nig) Plc vs. NSE Ltd (1997) 8 NWLR (PT 515) 1; Odua Investment Ltd. vs. Talabi (1997) 10 NWLR (PT 523) 1; Okereke VS. NDIC (2003) 2 NWLR (PT 804) 218 at 236; and General Muhammadu Buhari & Anor vs. Alhaji Mohammed Dikko Yusuf & Anor (2003) 6 SCNJ 344; (2003) 14 NWLR (Pt. 841) 446.

Although the main and relevant provisions in the two laws on which an Issue has been made in the present case have been set out verbatim in the two brief filed, it is worth while to repeat or re-state them in this judgment because of their importance to the resolution of the issue under review (i.e. issue 1). Accordingly sections 77, 78 and 277 of the CPA and section 33 of the FHCA provide or can be reproduced as follows:-

Section 77 CPA:

“77 subject to the provisions of any other enactment, criminal proceeding may in accordance with the provision of this Act, be instituted.

(a) in Magistrate Court, on a complaint whether or not on oath; and

(b) in the High Court-

(i) by information of the Attorney – General of the State in accordance with the provision of section 72 of this Act; and

(ii) by information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provision of part 36 of this Act; and

(iii) by information filed in the court after the accused has been committed for trial by a magistrate under the provision of part 36 of this Act; and

(iv) on complaint whether on oath or not.”

Section 277 CPA

“277. The provision of this Part of this Act shall apply to offences triable summarily, that is to say-

(a) to all triais in the High Court other than on information; and

(b) to all trials in the High Court in respect of offences by which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided; and

(c) to all trials in any magistrate court to the extent of the jurisdiction of the magistrate adjudicating; and

(d) for all offence declared by any written law to be triable summarily or on summary conviction or in a summary manner or by a magistrate.”

Section 78 CPA

“78. Where proceedings are instituted in a Magistrate’s Court, they may be instituted in either of the following ways-

(a) upon complaint to the court whether or not on oath, that an offence has been committed by any person whose presence the magistrate has power to compel, and an application to such magistrate, in the manner hereinafter set forth for the issue of either summons directed to, or a warrant of arrest to apprehend such a person; or

(b) by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed and the charge sheet shall be signed by the Police Officer in charge of the case.”

Section 33 of FHCA

“33. (1) Subject to the provisions of this section, criminal proceedings before the court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act, and the provisions of that Act, shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect or all matters falling within the jurisdiction of the court.

(2) Notwithstanding the generality of subsection (1) of this section, all criminal cases or matter before the court shall be tried summarily:”

The above provisions are in my view, very clear simple and unambiguous. They should therefore be given their simple, natural and ordinary meaning. The intention of the legislature in making the provisions is also very clear and easily ascertainable. In the case of the High Court, the intention is for the filing of an information with proof of evidence and the charge intended or sought to be preferred against the accused person so that he will have an advanced notice or knowledge of the case of the prosecution against him. It is also to give the judge before whom the information is filed or who is required to give leave to the prosecution to prefer or file the charge an opportunity to peruse those document and know whether a prima facie offence has been disclosed or made out against the said accused person before granting his leave to the prosecution to file the charges – see Egbe vs. State (1980) NCLR 341; Ikomi vs. State (1986) 3 NWLR (PT 28) 340; Abacha vs. State (2002) 11 NWLR (PT 779) 437; and Ohwovoriole vs. FRN (2003) 2 NWLR (PT. 803) 176 at 194 – 195, 208. Another rationale for the filing of an information and securing the leave of the judge is to ensure that an innocent person is not victimized, framed or persecuted rather than prosecuted before the High Court which is a superior court of record on merely false allegation or act which do not constitute any offence in law. It is very clear from the provision of section 77(a) and (b) of the CPA that the filing of an information or securing the leave of the judge for or before filing charges against an accused person is a procedure applicable only to or in the High Court proceedings. It has no application in the Magistrate Court where under subsection (a) criminal proceedings can be instituted on a complaint whether or not on oath. It is also to be noted that there may be some peculiar circumstances under which criminal proceedings before the High Court itself may be instituted just like in the Magistrate Court on a complaint whether on oath or not in accordance with subparagraph (iv) of section 77(b) i.e. section 77(b)(iv). The distinction in the procedure for institution of criminal proceedings before the Magistrate Court and the High Court under the provision of section 77 is deliberate and is intended by the legislature to make the institution or initiation of proceedings in the former court prompt, simple and less cumbersome.

Section 33 of the FHCA which provides that criminal proceedings before the Federal High Court shall be conducted substantially in accordance with the provisions of the CPA expressly makes the application of the said provision of the CPA or the substantial conduct of criminal proceedings in the Federal High Court subject to the provisions of the section (i.e. section 33 FHCA). Thus the application or invocation of the provision of the CPA in the conduct of criminal proceedings is only possible or permissible subject to or in the absence of any provision therefore in section 33(1) of the FHCA (supra). Therefore where a contrary provision is made in the FHCA different from that in the CPA, as regards the conduct of criminal proceeding, the former shall prevail. This is immediately followed by a provision or an exception in subsection (2) of section 33 FHCA (supra) which provides that notwithstanding the generality of subsection (1) of the section all criminal causes or matters before the court shall be tried summarily. This provision is also deliberately inserted or made in section 33 with the intention by the framers of FHCA to make the criminal proceedings before the Federal High Court more speedy easier and less formal or less cumbersome than those in the State High Court where the CPA is generally applicable. I agree with the learned senior counsel for the appellant that the provisions of section 77 and 340 CPA on the filing of information and securing the leave of the judge to prefer or file charges apply generally to the High Court in all the Southern States except Lagos State where the learned counsel himself agreed that the filing of information before a judge has been abolished by the Criminal Procedure (Amendment) Edict 1987. I am however unable to agree with the learned senior counsel in his assertion that the requirement for leave and the need for the Federal Attorney General to file a criminal information are still prerequisites under the CPA applying to criminal trials before or in the Federal High Court. My stand is based on the express proviso or exception made in subsection (2) of section 33 of the FHCA (supra) which provides in a mandatory term that criminal matters or causes before the court shall be tried summarily. It should also be emphasized that the provisions of section 77 upon which the appellant relies for his above assertion is itself made only applicable subject to the provision of any other enactment. Thus where there is another enactment or law as in the case of the Federal High Court (in its section 33 (2) or of Lagos State (in its Edict No.4 of 1979) the application of section 77 in the Lagos State High Court or the Federal High Court is clearly excluded (as in the instant case). The use of the words “shall be tried summarily” used in subsection (2) of section 33 (2) FHCA also prescribes or enjoins a summary trial of criminal cases before the Federal High Court similar to summary proceedings in the Magistrate Court as provided or in section 277 of the CPA. Clearly from the wording of the later section trials on information are excluded or are different from the concept or conduct of a summary trial. The submission of the appellant counsel to the effect that trials in the Federal High Court should be by way of information is therefore wrong and misconceived. The distinction sought to be drawn in the appellant brief between the manner of initiating criminal trials and how to conduct such trial should also be rejected as a mere rhetoric and academic rather than practical. In my humble view the manner of conducting trials and how they are initiated are interrelated and dependent on the other or cannot be separated. It is the attitude of this court and the Supreme not only to frown at an academic argument and hypothetical analysis as canvassed in the appellant brief on the point but also to disregard such arguments and analysis which are not based on the substance of the case – see Ariori vs. Elemo (1983) 1 SC NLR, Nkwocha vs. Governor of Anambra State (1984) 1 SCNLR 634, Coker vs. Olukoga (1994) 2 NWLR (PT 329) 648; UBN Plc vs. Sepok (Nig) Ltd (1998) 12 NWLR (PT 578) 439 at 480; and Agbo vs. State (2006) All FWLR (PT 309) 1380 at 1412; (2006) 6 NWLR (Pt. 977) 545. I therefore agree with the submission of the respondent’s learned counsel that all the requirement for the filing of complaint or charges in the Magistrate Court or for the institution of a criminal proceeding in Magistrate Court in accordance with Section 78 of CPA have been substantially complied with in the present case. Consequently the case was instituted in a summary manner or by way of a summary trial procedure as recommended in section 33 (2) of FHCA.

The two types of trials “full” and “summary” are provided for in the CPA and they are designed as such under the said Act irrespective of their manner of initiation, institution and conduct. Thus a summary trial is and remains so in both its manner of initiation institution and conduct and is distinct from the full trial (on information) which also has its peculiar characteristics and different pre-requisites in both its manner of initiation, institution and conduct. It will therefore be wrong and contrary to the letter and spirit of the law (i.e. the CPA) to differentiate between the manner of initiating a summary trial and the way it is conducted. Similarly, we cannot differentiate on how a full trial on information can be commenced or initiated from how it will be conducted. Thus a summary trial is or remains as such from its inception to its conduct and conclusion in the same way as a full trial on information also remains with its full characteristics from its inception conduct and conclusion as recommended by the law and it would be a double standard to mix them up or to expect such a full trial to (on information) be commenced or be initiated summarily and be conducted or concluded fully (or as a full trial). In the same manner a summary trial cannot be expected to commence fully and be conducted or concluded summarily. It is very clear from the wording of the provision in subsection (2) of section 33 of the FHCA (supra) that all criminal causes or matter before the Federal High Court shall be tried summarily. The provision does not differentiate between the manner of initiation or the conduct of the said trials. Consequently, the intention is to make summary procedure (with all its ramifications) applicable in criminal trials before the Federal High Court irrespective of their stages contrary to the suggestion of the appellant’s counsel.

In the last arm of his submission the learned Senior Counsel for the appellant refers (in the brief) to the provision of section 33(1) of FHCA which provides that criminal proceedings before the Federal High Court shall be conducted substantially in accordance with the provision of the CPA which should have effect in the said court with necessary modifications to bring it into conformity with the FHCA, and suggested that the provision of section 81 of the CPA which provides the procedure for the filing of a complaint before a Magistrate shall be modified by substituting the word “Magistrate” in the section with the words “judge of the Federal High Court.” With due respect to the learned Senior Counsel I find it difficult to agree with or accept his suggested amendment or modification to the law or statute (i.e. CPA). To do so or to accept the suggestion of the learned counsel which would amount to importing into the said statute words that are not intended by the legislature in order to give it (i.e. the provision) the meaning that will suit purpose of the appellant. The suggested amendment or modification is also contrary to or against the rules of interpretation of statute set out and adumbrated above. In particular, one of those cardinal rules is that the words used in the statute or law alone are to be considered and be given their ordinary and natural meaning without importing other words from other sources or without giving them any special meaning not intended by the legislature – see Ejuetami vs. Olaiya (supra); Miscellaneous Offences Tribunal vs. Okoroafor (supra); and Aqua Ltd vs. Ondo State Sport Council (1988) 4 NWLR (PT 91) 622. It is also not the function of a judge to import into any legislation word that have not been employed by the legislature and which will give a different meaning to the of the law so promulgated by the legislature. The judge must not bring to bear his personal feeling or prejudices as to what the law should be but rather to what it is from the clear wordings used by the legislature – see Fawehinmi vs. IGP (2000) 7 NWLR (PT 665) 481 at 529; and Major and St. Mellons Rural District Council vs. Newport Corporation (1952) A.C. 189 at 199 cited in the respondent brief.

I will consequently not grant the modification to the CPA suggested or requested by the appellant’s learned counsel which I regard as a desperate ploy on the part of the said counsel aimed merely to suit his client purpose or interest. If any modification is to be allowed at all by this court, it should be against the insistence or agitation of the said appellant that all the formalities required for the filing of complaints before the Magistrate under section 59 of CPA including the form (Form No.3) of the criminal complaint used in the Magistrate Court (reproduced in the appellant brief) must be satisfied or complied with by the 1st respondent (the prosecution) in the instant case. It is my humble view that such strict formalities can be modified or even waived in the present case which is before a Federal High Court. Such a modification or waiver is covered by or will be justified under the provision of section 33(1) of FHCA which provides that the provisions of CPA shall have effect subject to or with such modification as may be necessary to bring them into conformity with the provision of the FHCA. Thus in the modification exercise it is the provision of the CPA that should give way to or be modified to be in conformity with those of the FHCA. (supra) in order to give effect to the later law or statute. To do otherwise (as we are requested by the appellant) is contrary to the express provision of the later law (i.e. the FHCA) and therefore illegal.

I agree with the submission in the respondent’s brief on the formalities required for commencement of a summary proceeding in the Magistrate Court under section 78 of the CPA. It is very clear from the provision of the section that the formalities of filing of formal or written complaint, and an application for the Magistrate to issue a summons or warrant to compel the attendance of the accused person or to apprehend him only arise or are applicable where the accused person is already in custody (or in detention), as in instant case, there is no need for any application by the prosecution for the issuance of summons or warrant to compel his attendance. All that is required is for the prosecution to produce or bring him before the court upon a charge contained in a charge sheet in accordance with the provision of section 78(b) of the CPA. There is no also no need to apply for or secure the leave of a Magistrate before the filing of a complaint or a charge (which terms are used synonymously) under the above provision of the CPA (see also section 81 CPA cited and reproduced in the appellant’s brief).

I also uphold the submission in the respondent’s brief which is not controverted by the appellant who did not file a reply brief that the issues or points relating to the failure of the 1st respondent to apply for the issuance of a criminal summons or warrant before the lower court, are a fresh or new issues which were not raised or considered at the lower court.

The trite principle of law that a party cannot raise such fresh or new issues at the appellate court except with leave of the said appellate court as well as the authorities cited by the respondent under the principle are apposite. The fresh issues raised without leave by the appellant cannot or will not be entertained by the appellate court. In the instant case even though I have already, considered the submissions on those issues because the 1st respondent’s objection against them appear at the last lap of their submission under issue 1, they can still be disregarded or discountenanced. Luckily and coincidentally, my above consideration of the fresh issues does not favour the appellant who raised them without the requisite leave at this level.

From my above consideration of issue No.1 of the appellant’s brief (which corresponds with Issue 1 of the 1st respondent) It must be answered in the affirmative and resolved together with its related ground 6 of the appeal) against the said appellant. It is accordingly hereby so resolved. Thus, the criminal proceeding or action instituted or commenced by the 1st respondent in the present case was in substantial compliance with the provision of the CPA and FHCA.

As stated earlier, the 2nd and 3rd issues of the appellant’s brief are interrelated as they are both dealing with the admissibility or otherwise of some documentary exhibit annexed or attached to the affidavit in support of the appellant’s motion for stay of proceedings before the lower court. These documents are Exhibit OD1-OD3 which are copies of the civil suit or actions filed by the appellant in Bayelsa State High Court and the Federal High Court, Abuja challenging his removal or impeachment from office as the Governor of Bayelsa State on the one hand, and Exhibit OD4 which is a copy of the letter from the Appellant’s counsel to the Attorney General of the Federation informing the later of the pending civil suits of the appellant and urging him to stop or halt the criminal proceedings against the said appellant until his civil suits or action are determined by the two courts. It is therefore convenient to deal with the two issues together (i.e. issues 2 and 3) as they are both challenging the decision of the learned trial judge on the admissibility or otherwise of the two set of documentary exhibits which he held to be inadmissible. For the above reason, I will deal with issues 2 and 3 of the appellant together while also considering the relevant reply to the two issues in the 1st respondent’s brief which merges all the remaining 4 (four) issue of the appellant (i.e. issues 2, 3, 4 and 5) into one and argues them together.

Under his issue No 2, the appellant begins his submission by an admission that Exhibit OD1-OD3 are public documents copies of which are required by law to be certified before they can be tendered or admitted in evidence. It is however argued by the appellant that the stage or time at which the objection to the admissibility of the said document (or exhibits) was made in the instant case was premature as it was at a preliminary stage. The learned senior counsel for the appellant relies on two Supreme Court decisions and the decision of this court for this submission. These are Adejumo v. Military Governor of Lagos State (1970) All NLR (PT 1) 183; and Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT 135) 688; and Adebayo vs. FCDA (1998) 6 NWLR (PT 552) 118 at 129-130 in all of which it was held that documents annexed or attached to an affidavit must not be objected to at a preliminary stage but until the substantive action comes up for hearing when all the facts are put before the court. The appellant’s brief also refers to the case of Jadesimi vs. Okotie-Eboh (unreported) Appeal No. CA/L/233/84 relied upon by the learned trial judge on his decision in the present case regarding the admissibility of Exhibit OD1 – OD4 and it is submitted that the later decision of this court (in the unreported case) was arrived at per incuriam as it was made or arrived at without consideration of the earlier Supreme Court decision to the contrary in Adejumos case (supra). Thus in their subsequent decisions both the Supreme Court (in Nwosu vs. Imo State supra) and this court (in Adebayo vs. FCDA (supra) applied the correct principle or approach by holding that an objection against the admissibility of such documentary exhibit annexed to an affidavit cannot be taken or allowed to be taken at a preliminary stage until the substantive action comes up for hearing.

In his submission on Exhibit OD4 under his 3rd issue, the appellant argues that there is no way in which a letter written by a solicitor to the Attorney-General can be treated as a public document under the criteria based in section 109 of the Evidence Act (Cap 112), LFN 1990. In the above submission in the appellant’s brief, the learned senior counsel for the said appellant cites and relies on the definition of a public document given in Aguda on “law of Evidence” (2nd Edition) page 277-278; and No 306 – 308. This court is finally urged under issues 2 and 3 to hold that the trial court was in error in its holding that Exhibit D1-D4 (particularly Exhibit 4) are public documents and the objection against their admissibility was not premature.

The 1st respondent’s reply to the above submissions of the appellant on issues 2 and 3 is contained in pages 15 – 24 of the respondent’s brief. In a brief nutshell, the 1st respondent’s submission under issue 2 which begins by emphasis on the appellant admission on the inadmissibility of Exhibit OD1-OD3 under the Evidence Act (supra) describes the appellant’s submission under the Issue as contradictory as it is in the form of approbating and reprobating. Thus by admitting that the documents which were required to be certified before being admissible and were not so certified, it was a contradiction and wrong for the appellant’s counsel to insist that the trial judge or court should have admitted or placed reliance on those inadmissible documents. It is also argued by the 1st respondent that objection to admissibility of documents can be properly taken in appropriate cases or stages of the suit. Thus once the court’s attention is alerted on the admissibility of the document in a proceeding conducted by affidavit evidence as in the instant case, the court should consider and rule on their admissibility or other wise under section 97 (2) (c) of the Evidence Act (supra) – see Fawehinmi vs. IGP (2000) 7 NWLR CPT 665) 481 at 525 cited in the brief in support of the pre position. The cases cited and relied upon by the appellants are said to be inapplicable in the present case as they are not on all fours and the point canvassed thereat are different from those now being canvassed by the appellant’s counsel. The principle in the two cases of Adejumo vs. Governor of Lagos State (supra) and Nwosu vs. Imo State Environmental Sanitation Authority (supra) is said to be only applicable where there is a substantive suit and interlocutory application and the objection is taken or raised on a mere technical ground. Where on the other hand the objection relates to a mandatory provision of the law of evidence as in the instant case, and the document on their face value violate the requirement of the law, the court can be alerted and will properly refuse to look at or rely on the document. It is also submitted by the 1st respondent that in the above authorities (supra) the court allowed an objection to be raised against the admission of document where all the facts are put before the court.

As regards to Exhibit OD4 the 1st respondent submits that the said exhibit was rightly held by the learned trial judge to be a public document under section 109 (b) of the Evidence Act (supra). It is said to come under or be covered by the subsection as “a public record kept in Nigeria of private documents.” It is said that the original of the letter in Exhibit OD4 is kept as a public document in the Attorney General’s Office and only a copy of it is in the possession of the appellant and has to be certified in order to be admissible under section 97(2) (c) of the Act (supra) – see Fawehinmi vs. IGP (supra) cited in support of the above submission. The 1st respondent brief finally urges this court to uphold the finding of the lower court on Exhibit OD4 as a public document that has not been certified under the principle laid down in Aduku vs Adejoh (1994) 5 NWLR (PT 346) 582 at 597 cited in support of the 1st respondent’s final submission. In my consideration of the above submissions from the two briefs under issues 2 and 3 (together), my starting point should be on the admission of the learned counsel for the appellant that Exhibits OD1 -OD3 are public document which are required, under the law, to be certified before they can be tendered or admitted in evidence. This admission and the fact that the appellant has not filed any reply brief to contradict or answer the submission of the 1st respondent that Exhibit OD4 is also qualified as a public document under section 109 (b) (reproduced in the appellant’s brief) show that the said appellant has no reply to proffer against the 1st respondent’s submission on the true nature of Exhibit OD4. Consequently I will treat or regard all the Exhibits (i.e. OD1 – OD4) as public document which have been conceded by both parties as requiring certification before they can be tendered or admitted as Exhibit in cases where affidavit evidence is used. This is in line with the provision of section 97. It is to be noted that the documentary exhibits (Exhibits OD1 – OD4) in the present case were copies of the proceedings in the two courts where the civil cases filed by the appellant are pending as well as a copy of the letter his counsel had sent to the Federal Attorney-General. Thus the documents exhibited in the supporting affidavit to the appellant’s application at the lower court were secondary as opposed to primary documentary evidence (see the definition of the two terms under section 95 of the Evidence Act (supra). The Act allows such secondary evidence of document to be given only in certain circumstance as enumerated under section 97 (1) (a) – (g) of the Act. A further classification of documentary exhibit (5) provided in the Act (supra) which also affects their admissibility filed which is the bone of contention in the present case is between public and private documents. The Act defines only public document in section 109 leaving all other document which are not in the category of public documents as (or to be) private document under section 110 of the Act. Exhibits OD1 – OD3 are conceded to be covered by or to come under section 109 (a) (iii) as public document as they are acts or records of acts of a public officer, whether legislative, judicial and executive and whether of Nigeria or elsewhere. In the case of Exhibit OD4 in the instant case even if it is not regarded as coming under the above provision, it is in my view covered under subsection (b) of section 109 as a public record kept in Nigeria of a private document. I therefore agree with and accept the submission of the 1st respondent counsel to that effect. It is only certified true copy (CTC) of a public document properly issued by a public office that is admissible in evidence under section 111 of the Act. There is no provision in the Act making ordinary photocopies or copies of public document without certification as admissible – see Aina vs. Jinadu (1992) 4 NWLR (PT 233) 91, Jules vs. Ajani (1980) 5 -7 SC 96; Ojo vs. Adejobbi (1978) 3 SC 65; Cardoso vs. St. Mathew Daniel (1966) 1 All NLR 25; Raymond Iheonu & Anor vs. Simon Obiukwu (1994) 1 NWLR (PT 322) 594; and Esso West Africa Incorp vs. Alli (1968) NMLR 414; International Merchant Bank (Nig) Ltd. vs. N. Abiodun Dabiri & 2 Ors. (1998) 1 NWLR (PT 533) 284 at 298. Even in the case of Jadesinmi vs. Okotie-Eboh (1986) 1 SC 479; (1985) 2 NWLR (PT 10) 909 cited by the appellant counsel which has gone on appeal to the Supreme Court it was held that photocopies of the writ of summon, attached to a process or an affidavit which were not certified were not admissible in evidence. see also Afe Babalola on “Law & Practice of Evidence in Nigeria” pages 209 – 214.

In the present case the heavy whether being made or raised by the appellant’s counsel is not on the admissibility or otherwise of the documentary exhibit (in Exhibit OD1 – OD4) but rather on the flimsy reason or ground as to the stage at which the objection as their admissibility may be raised. With due respect to the learned SAN he appears to have left the substance and he is merely pursuing the shadow of the crucial point of the objection raised by the 1st respondent which is on the admissibility of the uncertified public documents which he has conceded are in law inadmissible. How then will he expect the learned trial judge to close his eye or overrule the objection of the 1st respondent which is on a solid legal ground or point? I therefore regard the appellant’s argument or submissions under the issue as also technical and merely academic in nature. Consequently I agree with the 1st respondent that the cases of Adejumo & -Anor vs. Governor of Lagos State (1970) All NLR (pt. 1) 183 as well as the two other cases of Nwosu vs. Imo State Environmental Sanitation mental Sanitation Authority (1990) 2 NWLR (PT 135) 688 at 735; and Adebayo vs. FCDA (1998) 6 NWLR (PT 552) 118 at 130 – 131 cited and relied upon by the appellant in his lame submission under the issues cannot help or avail the said appellant as the 1st respondent’s objection was raised at an appropriate time or stage during the substantive hearing of the appellant’s motion for striking out the charges against him or staying the criminal proceedings before the trial court. Thus all the facts relating to the two prayers in the appellant’s motion had been put before the trial court and it would have granted either of the appellant two prayers but for the 1st respondent’s objection. There was no better or more appropriate time or stage for the 1st respondent to raise its objection before the charges are likely to be struck out thereby terminating the criminal prosecution of the appellant or the criminal proceeding before the lower court be suspended for a considerably long period.

It is to be emphasized here that there is a difference between criminal and civil proceeding in relation to an application for their stay pending appeal. While in the case of civil proceeding nobody is being seriously jeopardized or, incarcerated or having his liberty curtailed, the same cannot be said in a criminal proceeding.

Consequently there is a conventional need to have a quick and speedy trial in the later proceeding as dictated by public policy. It is therefore a pity and unusual to observe that in the present case instead of the prosecution to cause delay in the criminal proceeding which some time may attract some chastising remarks or threat to discharge an accused person by the trial judge, it is rather the accused person himself (i.e. the appellant) who embarks on delaying tactics and is capitalizing on technical rather than substantial grounds to delay and stall the criminal proceeding against him at the trial court. This is despite the fact that the said appellant is still under detention and in custody of the security operatives uptil this time. Since in criminal trial or proceeding as in the instant case the courts are guided by public policy and the need for a speedy trial and fair hearing within a reasonable time as enjoined in section 36 (4) of the Constitution of the Federal Republic of Nigeria, 1999 it is the duty of all parties (including the appellant) and the court to ensure that justice and the proceeding are not unnecessarily delayed in the present case – see Odo vs. COP (2004) 8 NWLR (PT 874) 46; Solomon Ogbo & Anor vs. The Federal Republic of Nigeria (2002) 4 SCNJ 199 (2002) 10 NWLR (Pt. 774) 21; and Sokoto State Government vs. Kamdax (Nigeria) Ltd (2004) 9 NWLR (PT 878) 345. The provisions made in the Evidence Act (supra) on the admissibility of documentary evidence (which cover section 91 – 113 of the Act are primarily meant to apply only in civil proceeding rather than in criminal proceedings. This is because of the phrase used at the beginning of section 91(1) or (2) to wit “in any civil proceeding”. It is my humble view that by the above phrase the issue raised in the appellant’s brief that an objection against the admissibility of documentary exhibits or document annexed to an affidavit cannot be raised at an interlocutory stage or cannot be taken until when the substantive matter comes up for hearing is only applicable in civil cases and not in criminal cases. This is why all the authorities cited and relied upon by the appellant’s counsel where the Supreme Court and this court made the holding or stated the principle canvassed by the said counsel are civil as opposed to criminal cases. Thus the authorities of Nwosu vs. Imo State Environmental Sanitation Authority (supra); Adejumo vs FCDA (supra) are only applicable to or in civil cases and they are not relevant or applicable in the present case which is a criminal case. The submission as well the authorities cited by the appellant in support thereof are consequently inapposite and misconceived. I have already stated the golden rules of interpretation of statutory provision one of which is that in its function or duty of interpretation of such provisions, the court must confine itself to the express wording of the statute and should not go outside it in order to find or give it a different meaning. Another corollary rule is that it is not the function or duty of the court to amend the legislation in question merely to achieve a particular object or result as the appellant’s learned counsel is seeking or attempting to do in the present case. In other words, the courts merely interpret and apply the express words or language used by the legislature (to ascertain the later intention) and have no power to make or amend the law – see Fawehinmi v. IGP (2000) 7 NWLR (Pt.665) 481 at 529 cited in the respondent’s brief. Where there is an express provision of a statute, as in the instant case the courts (including the apex court) cannot make or give a decision to the contrary. To do so will be against the law and the court will be seen as derogating from its traditional function of interpretation of the law and will encroach into the arena of the legislature by making or amending the said law. The position of the law in view of my above discourse is or should be that in criminal cases, all the technicalities on the admissibility of documents arising from the provision of the Evidence Act (supra) which are only relevant to civil proceedings may be shunned or disregarded by the court in a criminal trial and the main consideration will be to achieve the interest of justice in the case or avoid or miscarriage of it.

In the present case the interest of justice requires that the documents attached to the supporting affidavit which were not certified and which the appellant counsel has himself admitted as requiring such certification under the law should not be allowed to be used to defeat the criminal proceeding instituted against the appellant at the trial lower court or to stay or stall the said proceedings for an indefinite time. To allow this to happen will not be in the interest of justice as it will terminate the proceeding in lamine or cause it an unnecessary long delay.

On the above consideration of the 2nd and 3rd issues of the appellant brief which correspond with some parts of or heading of the 1st respondent’s 2nd issue, the said issues, and their related grounds of appeal (ground 1, 2, 4 and 5) must also be answered in the affirmative and resolved against the appellant.

Under Issue No.4 of the appellant’s brief, the gravamen of the appellant submissions is hinged on the contention that having struck out or having discountenanced the exhibits attached to the affidavit in support of the appellant’s motion the learned trial Judge should have gone ahead or further to consider the facts as deposed to in the said affidavit which are said to be sufficient to entitle the said appellant to the grant of the reliefs sought for in the application. The appellant relies on his above submission on the similar approach by the Supreme Court and this court in Nwosu vs. Imo State Environmental Sanitation Authority (supra) and Jadesimi vs. Okotie-Eboh unreported (supra). The relevant part of the later case is extensively quoted in the appellant’s brief to show that after rejecting the exhibit attached to the affidavit in support this court proceeded to consider the other facts relevant or in support of the grant of the relief sought for in that case. It is pointed out that the 1st respondent in the present case did not file any counter-affidavit to counter or contradict the facts deposed to in the supporting affidavit which we are urged to regard as unchallenged and uncontradicted and therefore to hold that the learned trial judge was wrong in not considering or acting on the said averment in his refusal to grant the appellant application. The relevant averments in support of the appellant’s application before the lower court are said to be contained in paragraphs (3), (4), (5), (6), (8) and (9) which have been quoted or reproduced in the brief. The 1st respondent’s reply to the above submissions under issue No 4 are contained in pages 23 – 24 of its brief. It is conceded that the 1st respondent did not file any counter-affidavit at the lower court to challenge or contradict the appellant’s supporting affidavit but based its objection solely on point of law. Despite its non-filing of a counter-affidavit, the 1st respondent submit that it is not in every situation that the absence of a counter-affidavit will amount to an admission. Also the fact that none of the paragraphs in the supporting affidavit was stuck out by the learned trial judge does not automatically mean that his prayers should be granted – see Ejefor vs. Okeke (2000) 7 NWLR (PT 665) 363 at 381; and Arunlola vs. Adeoye (1995) 6 NWLR (PT 401) 338 at 353 cited in support of the above preposition where this court (Enugu and Ibadan Divisions) decided in line with the 1st respondent’s above submission. It is stated in the brief that the 1st respondent did not file a counter-affidavit because it was unnecessary for it to do so as the averment in the supporting affidavit were self contradictory and even if accepted as true they are not sufficient to sustain the appellant’s prayers at the lower court. The 1st respondent finally urges this court to hold so.

After my due consideration of the above submissions on issue No 4 and my perusal of the relevant parts of the ruling of the learned trial judge (at pages 93-94 of the record of appeal), I am of the humble view that under the general rule on affidavit evidence, an unchallenged and uncontradicted fact or averment is deemed admitted and the court should rely or act upon it. I therefore agree with the appellant’s submission that the failure of the 1st respondent to file a counter affidavit to challenge or contradict the factual averment is an admission of the facts as deposed to or averred in the said supporting affidavit – see Agu vs. NICON Insurance Plc. (2000) 11 NWLR (PT 677) 187; Uko vs. Ukpai (1998) 9 NWLR (PT 567) 705 at 707; Leadway Assurance Co Limited vs. Zeco Nigeria Limited (2004) 4 SCNJ 1, (2004) 11 NWLR (Pt. 884) 316; Nigerian Navy vs. Garrick (2006) 4 NWLR (PT 969) 69 at 112; and Ezeja vs.State (2005) 6 NWLR (Pt. 921) 235: (2006) All FWLR (Pt.309) 1535 at 1563 and Agbo vs. State (2006) All FWLR (PT 309) 1380 at 1400; (2006) 6 NWLR (Pt. 977) 545. I am however of the view that despite the 1st respondent admission of the facts deposed to in the supporting affidavit, it is a settled principle of law that before a court can rely and act upon those uncontroverted or unchallenged facts so deemed admitted, it has to consider them and ensure that they are credible. The Supreme Court and this court have held in a plethora of recent decisions that such an unchallenged and uncontroverted evidence is inconsequential when it is hallow, empty or bereft of any substance or sinfully or corruptly false, incredible, improbable or fall short of the required standard as no court or tribunal will act on it. In such a situation, the court can overlook or ignore or discountenance the unchallenged averment because they are not credible or not sufficient to sustain the relief sought by the plaintiff or applicant – see Neka BBB Manufacturing Co. Ltd. vs. African Continental Bank Ltd. (2004) 1 SCNJ 193, (2004) 2 NWLR (Pt. 858) 521; Provost, Lagos State College of Education & Ors. vs. Dr. Kolawole Edun & Ors (2004) 2 SCNJ 156, (2004) 6 NWLR (Pt. 870) 476; Adelakun vs. Oruku (2006) 11 NWLR (Pt. 992) 625 (2006) All FWLR (PT 308) 1360 AT 1372, (2006) 11 NWLR (Pt. 992) 625; Nsirim vs. Omuna Const. Co. Ltd.(1994) 1 NWLR (PT 318) 1 at 23; O. Arabambi & Anor vs. Advance Beverages Industries Limited (2005) 12 SCNJ 331 at 359; Unity Life and Fire Insurance Co. Ltd. vs. International Bank of West Africa Ltd (2001) 7 NWLR (PT 713) 610, and Imana vs. Robinson (1979) 3 – 4 SC 1; (1979) 12 NSCC 1 at p. 5.

The immediate question that comes to mind from the above principle is whether the fact deposed to in the supporting affidavit of the appellant in the present case are credible and sufficient to sustain the reliefs he claimed at the lower court. In this regard it is worthwhile to reproduce the 6(six) paragraphs relied upon by the said appellant in establishing his reliefs at the trial court (see page 21 of the appellant’s brief). These are paragraphs 3, 4, 5, 6, 8 and 9 and they read as follows:-

“(3) That I am informed by the 1st Accused that he was the Executive Governor of the Bayelsa State Government until he was unconstitutionally removed as Governor.

(4) That the 1st Accused is challenging his removal as Governor and has filed two actions challenging his removal. Now shown to me and marked as Exhibit OD1 and OD2 are copies of the actions filed on behalf of the 1st Accused by Professor A.B. Kasunmu (SAN).

(5) That I am informed by Professor A.B. Kusunmu (SAN) that with respect of the suit filed in the Federal High Court, Abuja he has misplaced the filed copy of the originating summons but pending applications filed after the said originating summons are attached herewith and marked as Exhibit OD3.

(6) That I am informed by the 1st Accused that he is entitled to immunity from arrest and prosecution by virtue of his being Executive Governor of the State.

(8) That unless proceeding are stayed to await the trial of the cases pending before the courts in Abuja and Yenogoa, the 1st Accused would have been (sic) prejudiced by being forced or compelled to go through trial in this case.

(9) That I am informed by Prof. A.B. Kasunmu (SAN) and I verily believe him that the prosecution has not complied with the mandatory provisions for the commencement of criminal proceeding before the Federal High Court, Lagos.”

In considering the credibility and sustainability of otherwise of the above averments, I will consider them individually. Accordingly the 1st averment in paragraph 3 which asserts that the appellant was the ex-Governor of Bayelsa State also States that he was removed as the Governor of that State. No any reason or detail is given for his removal except the ipse dixit of his counsel that the removal was unconstitutional. Clearly the averment in paragraph 3 apart from being self-contradictory as rightly held by the learned trial judge (in his judgment at page 93 of the record) it is also self-assuming and has no relevance to the appellant’s reliefs for striking out the charges or for stay of proceedings. The next two paragraphs (of the above quoted averments (i.e. paragraphs 4 and 5) are hinged or based on Exhibit OD1 – OD3 which have been discountenanced or struck out by the learned trial judge for being uncertified and inadmissible. Consequently, they do not have any effect or evidential value to support or sustain the appellant’s reliefs as aforesaid. Paragraph 6 of the above averments is predicated on paragraph 1 which has been found to be self-contradictory and self-assuming. In other words, the Immunity relied upon under paragraph 3 only applies to the 1st Accused (appellant) for his being and remaining to be the executive Governor of Bayelsa State. But since the appellant has been removed from the governorship (as per his paragraph 3) he cannot claim or rely on the immunity as he seeks to do under paragraph 6. The averment in the later paragraph is therefore incredible and unreliable and a deliberate distortion of the true position or fact. It is also bereft of any substance and a falsehood based on the personal view or ipsit dixit of the appellant. I will defer my comment on paragraph 8 above which states that the appellant will be prejudiced if the criminal proceeding against him are not stayed. This is because it is the subject-matter of the next issue of the appellant yet to be considered (i.e. issue NO.5). The last paragraph of the above reproduced deposition (paragraph 9) has been dealt with by me in my treatment of the 1st issue where the fallacy and incredibility of the averment (also based on the personal view of the appellant counsel) are clearly shown.

From my above analysis of all the paragraphs or averments relied upon by the appellant in support of his motion before the lower court it becomes very clear that they are incredible, devoid of any substance, hallow and falling short of the required standard as no court or tribunal can act or rely on them in granting the reliefs sought. The averments are also not sufficient to sustain or support the reliefs sought by the appellant before the trial court. Consequently, I am inclined to agree with and accept the submission in the 1st respondent brief that the learned trial judge was right in his refusal to countenance the said averment or paragraphs (which he ignored) in his consideration of the appellant application for stay of proceeding. In other words with his rejection of Exhibits OD1-OD4 and with the remaining paragraphs in the supporting affidavit which have been found to be hallow and shallow and insufficient to sustain the reliefs claimed by the appellant the learned trial judge had no other credible evidence or materials adduced or furnished by the appellant to sustain his application. Issue No.4 of the appellant together with its related ground of appeal (ground 3) must consequently also be answered in the positive and resolved against the said appellant. It is hereby so resolved.

Under his last issue (Issue No.5), the appellant stated that the criminal proceeding against him in the present case was filed after his removal or Impeachment from the Gubernatorial Office of the Bayelsa State. He could not have been prosecuted before then because of the constitutional immunity he enjoyed under section 308 of the 1999 constitution. It is conceded by the appellant that the immunity is or can only be enjoyed during the period he remains as the Governor. It is however pointed out in the appellant’s brief that his impeachment from the office of the Governor of Bayelsa State and the consequences that followed are the basis of the civil action he filed at both the Federal High Court, Abuja and the High Court of Bayelsa State. After filing the charges in the instant criminal proceeding against him the prosector/1st respondent was duly informed or notified (by Exhibit 4) of the civil action in Abuja and a pending motion for interlocutory injunction “to restrain him from initiating a criminal proceedings (sic).” The appellant’s brief cites and relies on the authority of The Governor of Lagos State vs. Ojukwu (1986) 1 NWLR (PT. 18) 621 and submits that under the principle of the case and the above circumstance of the present case, the criminal charges in the present case ought not to have been filed until the determination of the pending motion or application for injunction before the Federal High Court Abuja. The learned senior counsel for the appellant then made the following statement in the brief:

“No matter how frivolous and unmeritorious that application might be the prosecutor should not have gone ahead to file criminal charges in court. On that ground alone the trial judge should either have struck out the charge or at least stayed proceedings.” The case of Akilu vs. Fawehinmi (supra) is again cited and relied upon on the above submission. It is also submitted by the appellant that there is nowhere in the ruling of the learned trial judge where he held or found that the 1st accused/appellant would not be prejudiced. It is finally submitted in the appellant’s brief under issue No.5 that since the only reason given by the trial court for the refusal to grant the appellant’s application is based on the inadmissibility of the exhibits annexed or attached to the affidavit, this court is asked or urged to order the stay of proceeding on it’s finding in favour of the appellant on any of the issues earlier canvassed (i.e. issues 1 – 4) and that if issue 1 is decided in the appellant’s favour, the entire action (or the charge against him) should be struck out.

The 1st respondent’s reply to the above submission of the appellant under the 5th issue can be found under the last heading of its brief covering pages 25-27 thereat. A question is posed in the brief as to whether the mere fact that a civil suit or action is pending in the court is enough to sustain the prayer for stay of proceeding in a criminal case? In answer to the above poser, the learned counsel for the 1st respondent pointed out that the poser which seems to be based or the rule in Smith vs. Selwyn (1914) 3 KB 98 is in fact the reverse of the said rule. In any case it is submitted in the brief that the rule in Smith vs. Selwyn (supra) has been held to be no longer applicable in Nigeria- see Veritas Ins. Co. Ltd vs. Citi Trust. Inv. Ltd. (1993) 3 NWLR (PT 281) 349 at 364 – 365, A. G. Fed vs. Dawodu (1995) 2 NWLR (PT 380) 712 at 723; and James vs. IGP (2005) All FWLR (PT 274) 313 at 335 cited in the brief in support of the above preposition. It is submitted that with the abolition or abrogation of the rule in Smith vs Selwyn the position now in Nigeria is that both the criminal and civil proceedings arising from the same transaction can go on or proceed simultaneously. The authority of Akilu vs. Fawehimni (No.2) (supra) cited and relied upon by the appellant is also reviewed in the 1st respondent’s brief with the conclusion that the case or authority is not applicable to the present case where the suit purportedly instituted by the appellant against his removal from governorship are civil in their nature while the action in the present proceeding which the appellant sought to be stayed is a criminal action. It is pointed out that the parties in the two set of actions are also different. Thus under the criteria set out in Akilu’s case (supra) the two set of proceeding do not amount to a duplication that can necessitate a stay of one set pending the determination of the other. It is also further distinguished in the brief that the criminal proceeding in the present case involves money laundering offences while the purported pending suits relates to the removal or impeachment of the appellant from governorship of Bayelsa State and his arrest and alleged extradition. These are said to be completely different in nature and have nothing in common to the criminal charges in the present case. Finally, the 1st respondent’s brief urges this court not to stay the criminal proceedings pending at the lower court against the appellant.

Issue No 5 as set out above relates to ground 7 and is the only issue dealing with the appellant’s prayer for stay of proceeding at the lower court which was refused by the learned trial judge. All the other four (4) preceding issue are related to his other prayers for striking out the criminal action or charges filed against the said appellant. I have duly considered the submissions in the two briefs under the issue. While I agree with the introductory remark at the beginning of the appellant’s submission wherein it is conceded that the criminal proceeding against the appellant can only be filed or instituted after his removal or impeachment from governorship of Bayelsa State because of the constitutional immunity under section 308 of the 1999 Constitution enjoyed by him and other person occupying the office of a State Governor, I am however to emphasize that the immunity can only be enjoyed by the appellant during the period he is or remains a State Governor under section 308 of the 1999 Constitution. Thus the immunity is only enjoyable by the person holding or occupying the office and terminates or ceases when the person ceases to hold the office of a State Governor. During the incumbency of the governor as the beneficiary of the constitutional immunity, he cannot even waive it as it is inchoate to his incumbency in office. When faced with the interpretation or the constitutional provision in section 308, this court pronounced in line with the above position or statement which has been admitted or conceded in the appellant’s brief in Tinubu vs. IMB Securities Ltd (2001) 16 NWLR (PT 740) 670; and Chief DSP Alamieseigha vs. Chief Saturday Teiwa & 3 others (unrep) Judgment of this court in CA/A/51/m/2000 delivered on 12/7/01. In the later case which incidentally involved the present appellant this court (Abuja Division) held at page 10 of the judgment (per Oduyemi JCA) as follows:

“It is also trite that immunity need not be expressly claimed; that it existence rendered the exercise of jurisdiction null and void – R VS Madan (1961) 2 Q.B.

However in the sense that the immunity terminates when the person who enjoys the immunity ceases to hold the office by which he enjoyed immunity the constitutional provision concerned could be classified as procedural making the immunity merely, inchoate or in suspense during the beneficiary’s incumbencys in the office – Empson vs. Smith (1966) 1 QB 426.”

The above pronouncement applies to the appellant in the present case and since it is a common ground that he had ceased to be the Governor of Bayelsa State at the time when the criminal proceedings were instituted or filed against him the immunity under section 308 will not avail him and the criminal charges filed against him at the lower court cannot be terminated or stayed.

As regard the letter in Exhibit 004 which the appellant counsel wrote to the 1st respondent, I agree with the appellant submission that the principle in the Governor of Lagos State vs. Ojukwu (supra) and Akilu vs. Fawehinmi (supra) will ordinarily apply to the 1st respondent where he has the notice of a pending matter in the court and he goes ahead to take action to frustrate or render nugatory the outcome of the pending action.

However on the facts of the present case as disclosed in the affidavit in support of the appellant’s motion before the lower court, there is nothing to show that the 1st respondent was actually served with the letter in exhibit 004 before the commencement of the criminal proceeding at the lower court. The said letter is dated on 14/12/05 while the charges against the appellant were filed on 19/12/05. There is no indication of when the 1st respondent was served with the said letter and in the supporting affidavit, it is merely stated in paragraph 6 thereof that:-

“(6) That Professor A. B. Kasunmu, SAN, of counsel to the 1st accused, upon filing the said suit at the Federal High

Court, Abuja (exhibit OD1) did promptly send advanced copies of the processes thereto to the Honourable

Attoney-General of the Federation so as to put him on notice. Attached hereto and marked exhibit 004 is a copy of the covering letter with which the said processes were so forwarded.”

The above averment does not state the actual date or time when the letter was served on the Hon. Attorney-General or when he became aware of it. There is no endorsement whatsoever on the letter in exhibit OD4 to show that it was received by or on behalf of the recipient. Moreover the fact of the present case are different from those in Governor of Lagos State v. Ojukwu (supra) in that the Attorney-General was not a party to the civil suit said to be filed by the appellant at the Federal High Court, Abuja and the High Court of Bayelsa State (i.e. exhibits OD1 & OD2). He cannot therefore flout any order or frustrate the civil action in the said court the proceeding of which were separate and district from the criminal proceedings in the present case.

It is trite that the power of Attorney-General under Section 191 of the Constitution to institute and undertake criminal proceeding or to discontinue with it at any stage is only subject to his own conscience and good faith and in its exercise, he is required to have regard to the public interest, the interest of justice and the need to prevent an abuse of justice. Thus the Attorney-General is not under any control whatsoever judicial or otherwise in the exercise of his function or power except the risk of loosing his job if he offends his political master (i.e. the Governor or the President) – see State v. Ilori (1983) 2 SC 155; Akilu v. Fawehinmi (1989) 3 NWLR (Pt.112) 685 at 702; State v. Obasi (1998) 9 NWLR (Pt.567) 686 at 691 – 692; Edet v. The State (1988) 4 NWLR (Pt. 91) 722, (1988) 12 SCNJ (Pt.1) 79; Anyebe v. The State (1986) 1 SC 87. (1986) 5 NWLR (Pt. 42) 530; and A.-G., Kaduna State V. Hassan (1985) 2 NWLR (Pt. 8) 483.

Instead of the appellant’s learned counsel to convince this court by stating in his brief tangible reasons or principles for the grant of stay of proceedings under the issue he made a very unimpressive statement which I reproduced or quoted above when setting out his submission under the issue. I was very amazed and dumb founded by that outrageous statement coming from a very senior member of the legal profession to the effect that no matter how frivolous or unmeritorious the appellant’s application might be the prosecutor should not have filed the criminal charges against him in court. I have already stated the factors that are to be taken into consideration by the Attorney-General in discharging his function or power in the institution, control and undertaking of criminal proceeding before the court which include his regard to the public interest, the interest of justice and the need to prevent an abuse of justice. I will add another factor or consideration by adopting the language of the Supreme Court in Latifu Gbadamosi v. The Queen (1959) 4 FSC 181 at 183 wherein it is stated as follows:-

“It does great disservice to the administration of justice, and to public respect for the law, when a guilty person

escapes justice for a reason such as this ….”

Thus in the A-G’s power to institute or terminate a criminal proceeding against any person charged with an offence as in the instant case, he must have regard to the public respect for the law and ensure that an accused person or a person suspected on strong grounds of committing an offence should not be allowed to escape justice on merely technical grounds. Consequently, in the instant case a merely informal letter (exhibit OD4) from the counsel to an accused person is not enough to be relied upon by the trial court or by the Attorney-General (1st respondent) and to stay or suspend the criminal proceedings against the appellant. The description by the appellant’s counsel to their application at the lower court in the above quoted statement (i.e. frivolous and unmeritorious) is self defeating and is stating the truth and obvious nature of his application at the lower court. The question posed by the appellant’s counsel as emanating from the Supreme Court in Akilu v. Fawehinmi (supra) namely whether there is a real danger of causing injustice to the appellant should therefore be answered in the negative. Thus there is no any danger of causing injustice to the said appellant merely by the refusal of the learned trial Judge to stay the criminal proceeding against him.

I agree with and accept the respondent’s submission on the abrogation of the archaic rule in Smith v. Selwyn (1914) 3 KB 98 or its inapplicability in Nigeria for its being a “clog in or to the wheel of administration of justice” – see Veritas Insurance Co. Ltd. v. City Trust Investment Ltd. (supra); James v. IGP (supra) and A.-G., Fed v. Dawodu (supra) cited in the 1st respondent’s brief. I will however add that even if the rule in question (supra) is applicable in Nigeria, it will not avail the appellant because by his present application, for stay of proceeding he is asking for the reverse of the rule. In other words words while under the rule it is the civil right of the citizen that should be stayed until the hearing and determination of the criminal proceeding arising from the same transaction the appellant in his present application is asking for the reverse situation which is in apparent conflict with the principle in the rule (supra). I therefore accept the 1st respondent’s submission on the new trend under which both the civil and criminal proceedings arising from the same transaction can go on side by side or simultaneously.

In the last lap of the appellant’s submission under issue NO.5 it is stated that the only reason given by the learned trial Judge for refusing the appellant’s application before him is based on the inadmissibility of the exhibits annexed to the affidavit in support of the application. The appellant on or for that reason urges this court to order a stay of proceedings upon it’s finding in his favour under any of his preceeding issues (i.e. issues 1-4). It is also argued that

should this court find in favour of the said appellant under his first issue (i.e. issue No.1) the entire criminal action or the criminal charges filed against him at the trial court should be struck out. It is my humble view that this final submission of the appellant is very shallow, weak and is based on his own helplessness and inability to proffer tangible reasons or legal grounds in support of his 5th and last issue for determination which is on the necessity or otherwise of an order for stay of proceeding in the instant case. It is also speculative. Unfortunately for the said appellant all the proceeding issues mentioned and relied upon by him in his above submission have been resolved against him and none has been decided or found in his favour. Consequently, his request for the order of stay or for

striking out the criminal action or charges cannot be granted. In view of my above consideration of issue No.5 of the appellant, the said issue should be answered in the negative and also be resolved against the said appellant.

On my overall resolution of all the five (5) issues of the appellant against him, his appeal must fail and be dismissed. The appellant appeal is a delaying tactic aimed at causing delay or frustrating the criminal action or charges filed against the said appellant at the lower court. Consequently, I find the appellant’s appeal as frivolous and

unmeritorious which I hereby dismiss. I affirm the ruling of the trial court dated 23/12/05 dismissing the appellant’s motion and the notice of preliminary objection. The criminal action and the charges or proceeding against the appellant and others which are pending before the lower court should go on or proceed promptly so that no further

delay will be caused or occasioned again by either party.

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Other Citations: (2006)LCN/1996(CA)