Col. Mohammed Sambo Dasuki (Rtd) V. Federal Republic Of Nigeria & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The appellant and 5 others were arraigned at the High Court of the Federal Capital Territory [hereinafter called “the trial Court”] on an information alleging various allegations of criminal breach of trust, fraud, dishonest misappropriation of monies belonging to the Federal Government of Nigeria etc. In all, the appellant and the co-accused are being prosecuted on 19 charges.

Upon arraignment the trial Court, on 18th December, 2015, granted the appellant bail on terms. The terms on which the order releasing the appellant on bail was predicated were further reproduced in the Enrolled Order dated 21st December, 2015. The appellant met the bail terms, and was consequently released from the Federal Prison, Kuje, where he was held on remand on 29th December, 2015. The order releasing the appellant from the prison custody was carried out by the Controller of the Kuje Prison. The appellant was immediately re-arrested and taken away by officers of the Directorate of State Services [DSS].

When the trial Court granted bail on 18th December, 2015, it also directed the fixture of the

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trial of the appellant and the other 5 co-accused persons to 2nd & 3rd days of February, 2016. The hearing has been frustrated since because of the interlocutory application and appeals.

On 12th January, 2016, in reaction to his re-arrest, the appellant filed the motion, the subject of this appeal, praying the trial Court for the following orders.

1. AN ORDER prohibiting the complainant from further prosecuting the instant charge or any other charge against the 1st Defendant, or seeking any form of indulgence before this Honourable Court or any other Court in Nigeria, except and unless it complies with the Order of this Court made on 18th December, 2015, the said Order which remains valid for all intents and purposes, having not been set aside by any Appellate Court.
2. AN ORDER discharging the 1st Defendant/Applicant of all the offences contained in the instant charge, the said Charge which cannot be lawfully prosecuted by the Complainant who is in brazen disobedience of a subsisting Order of this Honourable Court made on 18th December, 2015.

Alternatively

3. A Mandatory Order directing the complainant who acts through the Department of State Services/EFCC

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and other enforcement agencies, to immediately produce the 1st Defendant in Court, by which this Honourable Court may give directives as it considers appropriate, for the administration of justice in accordance with the Administration of Criminal Justice Act, 2015.

Alternatively

4. AN ORDER staying further proceedings in this Charge until the 1st Defendant/Appellant exhausts the remedies available to him in law for the enforcement of his right to liberty, the said right which had already been preserved by the Order of 18th December, 2015.
5. And for such Orders or other Orders this Honourable Court may deem fit to make in the circumstances of this case.

The grounds for the application are said to be –

1. Until set aside, an Order of Court remains valid for all intents and purposes.
2. The Complainant having brazenly defied the order of Court made on 18th December, 2015 is in contempt of the proceedings and majesty of this Honourable Court, contrary to Section 6(6)(a) of the 1999 Constitution (as amended).
3. Until the complainant complies with the aforedescribed subsisting order of this

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Honourable Court, it cannot continue to lawfully prosecute this Charge, neither can it be afforded any right of audience in any Court in Nigeria.

4. In consequence of the above, the 1st Defendant is entitled to be discharged of all the offences contained in the present Charge whereof he stands trial.
5. In the light of the Complainant’s, continued denial of the 1st Defendant/Applicant’s right to take benefit of the Order admitting him to bail.
6. This noble Court has powers to grant the reliefs sought herein for the protection of its majesty, integrity, and the rule of law in our democracy, ditto the preservation of law, order judicial powers of the Court entrenched in the 1999 Constitution (as amended).

The trial Court, after hearing the parties and considering their various positions, dismissed the application having come to the conclusion, on the facts, that it “did not make any order against (the) re-arrest” of the appellant and that the 1st respondent, “the complainant in this case is not in contempt of my Order of 18th December, 2015”. The appellant appealed the ruling dismissing his application seeking an order, inter alia, to prohibit the 1st respondent from further

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prosecuting him on four(4) grounds of appeal.

At the Court of Appeal, the appellant argued the appeal on 3 Issues formulated from the 4 grounds of appeal contained in the Notice of Appeal. The 3 Issues are as follows –

ISSUES FOR DETERMINATION

1. Whether the High Court FCT Abuja was right, when having regard to the peculiar facts and circumstances of this case, it failed to give effect to its order releasing the Appellant on bail when it was apparent that it was the Respondent acting through one of its agencies the Directorate of State Services in conjunction with the EFCC that was responsible for the flouting of the Court’s order [Grounds 1 and 3].
2. Where, as established in this case the Appellant is unable to prepare for his defence due to the interference with his liberty by the Respondent, whether the reliefs sought herein is the best remedy for (i) for the restoration of the dignity and efficacy of the Court’s adjudicative powers and (ii) for ensuring a fair trial for the Appellant before an independent and impartial Tribunal [Ground 1].
3. Where as in this case, the Complainant is in

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disobedience of lawful order(s) in which he persists in disobeying, whether the Lower Court was right in indulging such a contemnor who is seeking further indulgences before it, while still in contempt and indeed whether the Complainant can be granted audience in this matter while it is still in contempt [Ground 4].

The 1st respondent, however, formulated a sole issue for the determination of the appeal from the appellant’s 4 grounds of appeal thus –

Whether the learned trial Judge was not right in refusing the appellants application wherein he sought for an Order of prohibition to prevent the further prosecution of the charges preferred against him and an Order discharging him in respect of the said charges on the ground that the prosecution was in breach of the Order admitting him to bail.

The Court of Appeal, in its discretion, adopted the sole issue formulated by the 1st respondent for the determination of the appeal, and resolved the appeal on that sole issue. In dismissing the appeal, the Court of Appeal [per Aboki, JCA], found, inter alia, that since trial Court made no order against the re-arrest or further arrest of the appellant no order of the trial

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Court was consequently disobeyed or flouted either by the 1st respondent, EFCC, or the DSS. This further appeal, brought on 7 grounds of appeal, is consequent upon that decision of the Lower Court dismissing his appeal on 15th June, 2016. One of the grievances or complaints of the appellant before us now is that the Lower Court, in dismissing his appeal the very day the appeal was argued, had breached his right to fair hearing.

From the 7 grounds of appeal the following 5 issues for the determination of this appeal have been formulated by the appellant. That is –

ISSUES FOR DETERMINATION

1. Whether by hearing the appeal and adjourning judgment to 4pm of the same day, the Court of Appeal did not by that action of undue haste to deliver judgment breach the Appellant’s right to fair hearing, particularly the hallowed principle that “Justice hurried is Justice denied” and in the circumstances thereof could it be said that there was no miscarriage of Justice [Ground 1].
2. Whether the adoption by the Court of Appeal of the sole issue formulated by Respondent before it as opposed to the Appellant’s 3 Issues tied

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to the 4 grounds of appeal did not amount to both a non-consideration and misapprehension of the issues put forth by him for adjudication and determination and in consequence therefore breached Appellants right to fair hearing and occasioned a miscarriage of Justice [Ground 2].

3. Whether in the resolution of the sole issue adopted by the Court below was right, when it affirmed the decision of Hon. Hussaini Baba J of the High Court of the FCT where he refused to give effect to his order releasing the Appellant on bail when it was apparent that it was the Respondent acting through one of its agencies – the Directorate of State Services in conjunction with the EFCC that was responsible for the flouting of the Court’s order [Grounds 3 and 4].
4. Where, as established in this case and contrary to the conclusion of the Court below, the Appellant is unable to prepare for his defence due to the interference with his liberty by the Respondent, whether the reliefs sought herein is the best remedy for (i) for the restoration of the dignity and efficacy of the Courts adjudicative powers and (ii) for ensuring a fair trial for the Appellant before an

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independent and impartial Tribunal [Ground 5].

5. Was the Court of Appeal not in error when it affirmed the decision of the High Court of the FCT that the Complainant (FGN) was not in disobedience of lawful orders(s) and whether the Courts below were right in indulging such a contemptnor who was seeking indulgences before it, while still in contempt and indeed whether the Complainant can be granted audience in this matter while it is still in contempt [Ground 6 &7].

The 1st respondent on his part, has formulated two issues for the determination of the appeal thus –

1. Whether the appellant’s right to fair hearing was infringed upon merely because the Court of Appeal adopted the issue formulated by the 1st Respondent and delivered Judgment the same day the appeal was heard [See grounds 1 and 2 of the Notice of Appeal].
2. Whether the Court of Appeal was not right when it affirmed the decision of the learned trial judge which dismissed the Appellant’s application seeking to stop the Prosecution from further prosecuting the charges against him on the ground that the prosecution was in breach of the order admitting him to bail

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pending his trial [See grounds 3, 4, 5, 6 and 7 of the Notice of Appeal].

The appellant’s issue 4 does not, with all deference to the learned Senior Counsel who settled it, seem to draw its blood and life from ground 5 of the Grounds of Appeal from where it purports to flow from. Rather, it seems to flow from the obiter dictum of the Lower Court in the last paragraph of its judgment, which in paragraph 29 of the Appellant’s Brief the learned senior counsel had described as “a righteous obiter”‘ At page 1047 of the Record the Lower Court had stated or remarked in passing thus –

It is still pertinent to observe, that bail is a right of a person accused of trial, once it is not a homicide charge. It enables him to prepare for his defence, which is a constitutional right. If Courts grant bail, there should be compliance, as disobedience to Court orders, is injurious to the smooth running of the administration of justice, and capable of eroding the rule of law, which is necessary and a part and parcel of any democratic society, and to avoid anarchy.

The complaint in ground 5 of Notice of Appeal is that the Lower Court erred when it held –

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That the act of the EFCC is not the act of the DSS, and that the two bodies are creations of two distinct statutes with two separate powers and functions;

ii. That it is incredulous to argue, as the appellant did, that once he had been granted bail for one offence and is being prosecuted for it by one agency of the Federal Government of Nigeria (FGN); he could no longer be apprehended and prosecuted by another agency of the FGN for another offence; and

iii. that the principle in HADKINSON & HADKINSON (1952) P.285 CA does not apply in the instant case as no order of Court had been flouted.The entire superstructure of the appellant’s appeal rests on Issue 5. That is, whether the Court of Appeal was not in error when it affirmed the decision of the trial Court that 1st respondent, the complainant, or the FGN was not in disobedience of any lawful order of any Court of law The learned trial judge (H.B. Yusuf, J) had stated emphatically, as a fact at page 910 of the Record, that he “did not make any order against the re-arrest” of the appellant after the due execution of his order admitting the appellant to bail. The Court of Appeal affirmed this finding of fact.

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Either at the Court of Appeal or before us in this appeal, there is no specific ground of appeal challenging this finding of fact. There is a settled presumption that a specific finding of fact neither challenged nor rebutted is correct: REGISTERED TRUSTEES, APOSTOLIC FAITH MISSION v. JAMES (1987) 3 NWLR (Pt.6) 566; BAKARE v. THE STATE (1987); NWLR (PT.52) 579. This Court in DARIYE v. FRN (2015) 61 NSCQR 1457 at 1496 – 1497, re-stating its earlier stance in ONIBUDO v. AKIBU (1982) 2 SC 60 at 63, held that the appellant who does not appeal a specific finding of fact is deemed to have accepted and conceded it. Facts not disputed are always taken as established.

The concurrent findings of fact to the effect that the trial Court made no order that the appellant, upon his being admitted to bail, shall not be re-arrested or further arrested by any other prosecutoral organisation for any other offence are not perverse. The orders made on 18th December, 2015 by the trial Court do not have such attributes or riders to them. The orders are explicit and unambiguous. I agree with the 1st respondent, on the authority of KALU v. FRN (2014) 1 NWLR (Pt.1389) 379 at 544 and ONWUKA

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EDIALA (1989) 1 NWLR (Pt.96) 182, that a party is not permitted to read into an order of Court what the order does not, in fact, contain.I have painstakingly read the Appellant’s Briefs viz-a-viz the supporting affidavit at the trial Court. I have not been able to see any proof offered by the appellant that his arrest, on 29th December, 2015, was in connection with the offences he was arraigned for his trial at the trial Court. That is, the offences he was admitted to bail pending his trial at the trial Court. It is not enough to assert without proof, as the appellant has done, when it is submitted that the 1st Respondent, through the EFCC/DSS acted with guilty mind when it caused the appellant to be re-arrested on 29th December, 2015. The law is settled: he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side: Section 132 of the Evidence Act. I am unable to see from any averment in the supporting affidavit, at pages 671 – 674 of the Record, where the appellant satisfactorily

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that his re-arrest and subsequent detention was in violation of the trial Court’s order admitting him to bail.

The 1st respondent filed counter-affidavit. It is at pages 709-743 of the Record. In paragraphs 14, 16 and 19 thereof it is averred

14. That (the appellant) was being investigated by the DSS and the Nigerian Military Authority for various offences relating to breach of Military Service Laws (and that he) was re- arrested after his release from the prison custody to allow those bodies to conclude their investigations and take appropriate steps under the service Law.
15. That (the trial) Court never made any order that the appellant should not be rearrested or investigated for breaking martial laws or from being prosecuted for any other crime apart from this case.
16. That on 21st December, 2015 (the trial) Court never made any Order preventing the further investigation of any other offences that the (the appellant) or any other defendant may be suspected for and for which they may be lawfully arrested.

The terse response of the appellant as contained in paragraphs 7 & 8 of the Reply to the counter-Affidavit,

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is that the re-arrest of the appellant has nothing to do with breaches of service law and that the appellant retired from Military Service since 1987. I, however, notice, from the annexures to the supporting affidavit, the Exhibit Dasuki Series, that the appellant at all material times up to 2015 was the National Security Adviser to the President of the Federal Republic of Nigeria. The deponent of the affidavit, that is the Appellant’s Reply to the Counter-Affidavit, did not aver that the appellant, in that capacity, had nothing to do with breaches of security or Military laws. I agree with the 1st respondent that the orders made on 18th December, 2015 did not inure in favour of the appellant’s claim to immunity against arrest, investigation and prosecution for any other offence(s) he may have committed at one time or the other.

The appellant has made so much fuss about the rule in HADKINSON v. HADKINSON (supra) in submitting that since the 1st respondent has flouted the order of the trial Court made on 18th December, 2015, he was guilty of contumelious contempt warranting the prohibitive orders sought against it.

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These submissions are made quite oblivious of paragraphs 6 and 7 of the supporting affidavit and trial Court’s finding on them at page 773 of the Record. That is –

From paragraphs 6 and 7 of the affidavit in support of this application, it is clear that after the 1st Defendant/Applicant satisfied the terms in exhibit Dasuki 2 he was released from the Federal Prisons on the 29th December, 2015. At this point, the order of the Court directed at the Comptroller of Prisons was in my view complied with.

Paragraph 6 of the supporting affidavit has admission against interest to the effect that the appellant, upon fulfilling the bail terms ordered by the trial Court on 18th December, 2015, was released from the Federal Prisons, Kuje, on 29th December, 2015 as ordered by the trial Court. The appellant, by his own showing,cannot be heard to say that the order made on 18th December, 2015 was flouted and that the 1st respondent was guilty of contumelious contempt of that order. At the risk of repetition, I agree with the 1st respondent that there was no order made by the trial Court that the appellant would no longer be rearrested, investigated and prosecuted by any other agency of the

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FGN on reasonable suspicion that the appellant had committed another or any other offence. Accordingly, I do not think that the Court of Appeal erred when, at page 1040 of the Record, it held that once the appellant was, on 29th December, 2015, released from prison custody the order made on 18th December, 2015, admitting him to bail, had been complied with; and that it is fallacious to submit that the EFCC, the 1st respondent, had disobeyed the court order admitting the appellant to bail.

The appellant has not been able to show that the concurrent findings of fact by the trial Court and the Court of Appeal that the trial Court made no order that the appellant shall not subsequent to the order made on 18th December, 2015, admitting him to bail, be arrested or further arrested, investigated and prosecuted for any other offence, is perverse. The concurrent findings, also, that the order made on 18th December, 2015 admitting the appellant to bail was complied with on 29th December, 2015, and not flouted, upon the appellant fulfilling the bail terms, are similarly not perverse. This Court, as a policy, remains hesitant to interfere with concurrent findings of fact

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made by the trial and intermediate Courts. It only intervenes and interferes with such concurrent findings of fact if and only when they are shown to be perverse: ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY (2015) 61 NSCQR 1857; ATOLAGBE v. SHORUN (1985) LPELR – 592 (SC).

The appellant complains vociferously that he was denied fair hearing by the Court of Appeal in three ways. That is –

i. that his re-arrest on 29th December, 2015 and incarceration since adversely hamper his right to adequate time and facilities to prepare his defence to the 19 charges he was facing at the trial Court, and that his incarceration restricts his access to his counsel. This alleged right comes under Section 36(6) of the 1999 Constitution;

ii. that the Court of Appeal’s preference of the sole issue formulated by the 1st respondent to his three issues demonstrates that the Court of Appeal did not give adequate consideration to the case he had presented before it; and

iii. that the Court of Appeal delivering Judgment just a few hours after the conclusion of the hearing of the appeal was hasty, and that justice hurried is justice denied.

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It is clear from GARBA V. UNIVERSITY OF MAIDUGURI (1986) 2 SC 128; (1986) 1 NWLR (Pt.18) 550, that the right entrenched in Section 36(1) of the Constitution has three major components; namely:

a. Fair hearing or trial (which includes audi alteram partem – i.e hear the other party and the right agqinst bias-nemo judex in causa sua),

b. the determination of the civil rights or obligation within a reasonable time; and

c. by a Court or tribunal established by law.

The appellant’s complaints in this appeal appear to rest on the first two.

The complaint that the short adjournment of a few hours before the delivery of its judgment by the Court of Appeal, just like the Court of Appeal’s preference of the 1st respondent’s sole issue to the three issues formulated by the appellant, appears to me to be complaints attacking the manner the Court of Appeal exercised its undoubted discretion. An appeal attacking the exercise of discretion should ordinarily have been brought upon leave first sought and obtained: PRUDENT BANK PLC v. OBARAKI (2012) NWLR (Pt.128S) 504 at 513. I have not seen any evidence of such leave in this appeal.

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Be that as it may, this Court will not interfere with the exercise by the Court of Appeal of its undoubted discretion unless the appellant shows that the discretion was not exercised judicially and judiciously; LAFFERI NIG. LTD. v. NAL MERCHANT BANK PLC (2015) LPELR – 24726 (SC). The interference is very seldom and only in exceptional cases where there has been manifest and obvious miscarriage of justice: ODUSOTE V. ODUSOTE (1971) ALL NLR 219.

The appellant, citing Section 258(1) of the Constitution and the cases of AGBANELO v. U.B.N. (2000) 7 NWLR (Pt.666) 540 and UNONGO v. APER AKU (1983) 2 SCNLR 332 at 352, submits that the decision of the 5 justices of the Court of Appeal delivered only in a few hours whereas they had 3 months to do so was rather a hasty and “hurried judgment at the expense of a carefully reasoned out judgment”, particularly that the appeal was determined on only one issue.

Let me debunk some misconceptions inherent in these submissions. What is important is not how long it takes to write a judgment, but how articulate the judgment is. It is also not the quantum of issues formulated that determines the fate of an appeal but the

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aptness of the issues to the dispute. A single issue, properly formulated and direct to the dispute or controversy, can (and often times it does) resolve the dispute. It is only in the academic world that disputes or controversies are used to identify or find issues. In adjudication issues are formulated for the resolution of real disputes.

Section 258(1) of the Constitution must have been cited in error. As pointed out in the Brief of the 1st respondent. The appellant, apparently, intends to refer to Section 294(1) of the same Constitution that provides –

Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

The mischief the provision intends to address and stamp out is delay in justice delivery. Section 294(1) is neither an antidote nor the antithesis of Section 36(1) of the same Constitution that prescribes, inter alia that in the determination of his civil rights and obligation a

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person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law. I do not see how a judgment delivered by the Court of appeal within a few hours after the conclusion of the final addresses by the parties ordinarily violates the right to fair hearing guaranteed to the appellant. Appeals at the Court of Appeal are heard on briefs of arguments previously filed and served on the parties. The briefs are available to the justices of the Court to peruse and appreciate the issues therein long before a date is appointed for the hearing of the appeal on the said brief. In this appeal, we have not been told that the briefs were only available to the five (5) Justices of the Court of Appeal just on the day the appeal was heard.

In view of Section 285 of the amended 1999 Constitution, UNONGO v. APER AKU (supra) no longer represents good law. In the UNONGO case Section 140 of the Electoral Act, 1983 intended to hasten the pace of the administration of justice in election matters was held to be unconstitutional. Section 285 (6) & (7) of the Constitution, as amended, have restored what the annulled Section 140 of

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the Electoral Act, 1983 had intended to achieve.

Speedy trial, in criminal proceedings, is an aspect of the rights to personal liberty and fair hearing guaranteed, respectively, by Sections 35 and 36 of the Constitution: OKECHUKWU BENSON v. C.O.P. (2013) LPELR – 21212 (CA). It appears to me the learned Justices of the Court of Appeal, in this case, had in mind what the learned Idoko, J (of blessed memory) had in mind in MORGAN OKETA OGWU & ANOR. v. THE STATE (1981/82) BNLR 31, – when he stated:

This speedy trial guaranteed under our Constitution is a valuable one and it is armed at serving three purposes, namely: (1) it protects an accused against prolonged imprisonment; (2) it neutralizes the anxiety and public suspicion which leaving a case hanging on the neck of an accused engenders; and (3) it prevents the means of proving the innocence (or otherwise) as a result of loss of witnesses and dulling away of (their) memory.

Of greater value for speedy trial, when the Court is aware that the accused person is in custody, is the prevention of his punishment before his trial and conviction.

When this Court in ARIORI v. ELEMO (1983) 1 SCNLR 1

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and FAWEHINMI v. NBA (No.2) (1989) 4 SC (Pt.1) 63 stated that a party can waive a right inuring to him for fair hearing/trial, it also made it clear that the public right to speedy trial or determination by the Court within a reasonable time cannot be waived. No litigant, as I stated in ANPP & ANOR. v. INEC & ORS. (2008) LPELR – 9256 (CA), has a right to unnecessarily delay the hearing of his suit and move the Court to proceed at his pace. In order to give effect to the liberty of an accused person incarcerated the essentiality of speedy trial imposes a duty on the Court and the parties [including their counsel) to ensure that any antics or gimmicks aimed at delaying the determination of the matter must be avoided. In DARIYE v. FRN (2015) 6 NWLR (pt.1467) 325 at 362 delay tactics employed by the rich and powerful designed to cripple criminal justice system was loudly deprecated. No litigant has that right or privilege.

The parties in litigation have the right to have their case/matter fairly considered: UDOFIA v. THE STATE (1984) LPELR – 3806 (SC). The Court, in my firm view, cannot be guilty of undue haste, if in its decision, the issues in the case or matter are fairly considered.

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case or matter are fairly considered. In all the instances where hasty decisions or actions of the adjudicating body were held to be hasty and amounting to denial of justice in the proceedings those decisions or actions were shown to be aimed at frustrating the legal rights of one of the litigants. In DARIYE v. FRN (supra) the antics were aimed at delaying trial. In AKABOGU v. AKABOGU (2007) NWLR (pt.826) 445 and DURU v. FRN (2013) 6 NWLR (Pt.1351) 441, the actions or decisions of the adjudicating body were found respectively, to be aimed at denying the right of the appellant to address the trial judge, or to frustrate the appellants right of appeal. That is not the situation in this appeal.

The appellant has not shown satisfactorily that the Court of Appeal did anything wrong in law that compromised his right to fair hearing/trial when upon the adoption of the briefs of argument by the parties through their respective counsel it retired and delivered its judgment within only a few hours. Section 307 of the Administration of Criminal Justice Act, 2015 providing that when the case for both sides is closed, the Court shall consider its verdict and for

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this purpose may retire or adjourn the trial, read together with Section 36(1) of the Constitution, supports the procedure adopted by the Court of Appeal. Rather than condemn the Court of Appeal, I hereby commend the learned justices for their industry and enterprise.

The exercise by the Court of Appeal of its discretion to prefer the sole issue formulated by the 1st respondent for the determination of the appellant’s appeal is the main thrust of Issue 2 argued by the appellant in this further appeal. The genesis of the appeal at the Court of Appeal was the application filed by the appellant at the trial Court seeking orders to prohibit his further trial or prosecution on the ground that the trial Court’s order granting him bail pending his trial had been violated. In the words of the learned Senior Counsel for the appellant –

The application is about the Court recognising that it can enforce its own orders and protect its sanctity and integrity- The effect is that if the Court cannot assert its authority in the face of brazen disobedience by one of the parties, i.e. Respondent, the Court’s independence and impartiality would be compromised.

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The core issue, at the trial Court and Court of Appeal, was whether any lawful order made by the trial Court had been flouted The indubitable fact is that the order made on 18th December, 2015, admitting the appellant to bail, was enforced on 29th December, 2015 upon the appellant meeting all the bail terms. The trial Court found specifically that the order it made on 18th December, 2015 was not flouted, and that in fact it was complied with on 29th December, 2015. This specific finding of fact was admitted by the appellant in paragraphs 6 and 7 of the supporting affidavit at the trial Court.

I have perused the appellant’s three issues formulated for the determination of his appeal at the Court of Appeal, as well as the 1st respondent’s sole issue. I cannot fault the Court of Appeal decision preferring the 1st respondent’s sole issue to the 3 issues formulated by the appellant. The respondent’s sole issue was more apt and in it all the 3 issue formulated by the appellant were subsumed.

Appellant’s Issues 1 and 3 at the Court of Appeal complained that the 1st respondent disobeyed the order admitting him to bail and that the trial Court should not have indulged the 1st respondent as a contemptnor.

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The substance of Issue 2 is that in consequence of the 1st respondent’s disobedience of the trial Court’s lawful order the appellant was unable to prepare his defence. The sole issue formulated by the 1st respondent which summed up the 3 issues formulated by the appellant, is –

Whether the learned trial judge was not right in dismissing the appellants application seeking to stop prosecution from further prosecuting the charge against the appellant before the (trial) Court on the ground that prosecution was in breach of the order admitting the Appellant to bail pending his trial.

The learned Senior counsel for the appellant submits that it is only in the most unusual circumstances, such as when the appellants issues are hopeless inelegant and incomprehensive, that the Court hearing the appeal can prefer the respondents issues (s) to the appellants issue(s). citing the cases of HON. E. A. ARAKA v. AMBROSE N. EJEAGWU (2000) 15 NWLR (PT.692) 684 AT 718 and ISHAYA BAMAIYI v. THE STATE & 4 ORS (PT.715) 220 AT 293; (2001) 4 SCNJ 103 AT 116 117 (if even these weird reports

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exist), the learned Senior counsel submits correctly that the Court of Appeal, being an intermediate Court must consider all issues properly raised and formulated by the parties and pronounce on them; and that failure to do so would result in breach of the right to fair hearing. The appellant has not shown what injustice, in actuality, he has suffered from the Court of Appeal adopting the 1st respondent’s sole issue in preference to his 3 issues, which in my view are subsumed in the 1st respondent’s sole issue.

An appellate court, in the interest of justice can, and it is permitted to, prefer an issue or issues formulated by any of the parties to all or any other issues formulated by another party. It can, even on its own, formulate an issue or issues which it considers germane to and pertinent in the determination of the matter in controversy: AGBAREH v. MIMRA (2008) 2 NWLR (Pt.1071) 410; MUSA SHA (JNR) & ANOR v. DARAP KWAN & ORS. (2000) 8 NWLR (Pt.670) 685. So long as it does not lead to injustice, an appellate Court is free to adopt the issue(s) formulated by the respondent in preference to those formulated by the appellant if the issue(s) formulated by the respondent are more

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elaborate, succinct and apt to the issues in controversy than those of the appellant. After all, the purpose of framing issue(s) is to attain a more judicious and proper determination of the appeal by bringing out clearly and accurately the point or question in dispute in order that it may be correctly isolated and addressed. The most important thing, as submitted by the senior counsel for the 1st respondent, is that the issue is traceable to the ground(s) of appeal.

At the risk of repetition, it is my firm view that the central issue, both at the trial Court and the Court of Appeal, is whether the 1st respondent did, in fact, disobey the order made on the 18th December, 2015 admitting the appellant to bail pending his trial. That central issue was the substance of the 3 issues formulated by the appellant and the sole issue formulated by the 1st respondent at the Court of Appeal. That central or core issue was not missed by the Court of Appeal. It was in fact fairly considered. The appellant, in this interlocutory appeal, has merely made fair hearing a whipping principle to filibuster all the way to this Court.

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The appellant’s vitriolic diatribe at the Court of Appeal for the expeditious determination of his own appeal is clearly symptomic of the mala fide or the ulterior purpose of his appeal. An appeal brought, not bona fide, but merely to delay a pending action or to gag other prospective actions is clearly an abuse of Court process: R-BENKAY NIG. LTD. v. CADBURY NIG. LTD. (2012) LPELR – 7820 (sc); CBN v. SAIDU (2001) 12 SC (PT.II) 146; EDJERODE v. IKINE (2001) 12 SC (PT.II) 125; AGWASIM v. OJICHIE (2004) 10 NWLR (Pt.882) 613 at 624 – 625 (SC) SARAKI v. KOTOYE (1992) 9 NWLR (Pt.624) 156 at 188 (SC).

A gagging suit is clearly an abuse of Court process: MOBIL PRODUCING NIG. UNLIMITED v. SUFFOLK PETROLEUM SERVICES LTD. (2012) LPELR – 40054 (CA). The appellant has, in the words of Lord Denning MR in WALTERSTEINER v. MOIR (1974) 3 ALL E.R. 217 at 230,

Used the abracadabra: “This is sub judice” – to avoid any discussion, not only on the matters concerned in the litigation, but other matters also. His whole conduct throughout the proceedings-

to my mind, his action was an abuse of the process of the Court – (The) proceedings were all a pattern (designed) not

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to get justice – but to thwart it. When the Court meets with such abuse, it has a means to cope with it. It will strike out the action and will give such judgment as the nature of the case permits.

The appeal lacking in merits, and being clearly an abuse of Court process, is hereby dismissed in its entirety. The case is remitted to the learned trial judge [Hon. H. B. Yusuf,J) of the High Court of the Federal Capital Territory for hearing, with the further directive that it shall be given accelerated hearing.

At the hearing of the appeals, it was the consensus of all counsel that the appeal No.SC.618/2016 shall abide the outcome of the appeal No.SC.617/2016. It is so ordered accordingly.

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SC.617/2016(CONSOLIDATED)