Major-general Zamani Lekwot (Rtd) & Ors Vs Judicial Tribunal On Civil And Communal Disturbances In Kaduna State (1997)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI JSC.
By a Motion on Notice the appellants/applicants pray for the following orders –
“(i) Setting aside the judgment: of the judicial Tribunal on Civil and Communal Disturbances in Kuduna State presided over by Hon. Justice B. O. Okadigbo delivered on 2nd Februarv, 1993, in charge No. KD/C&CDT/5/92 Federal Republic of Nigeria v. Major-General Zamani Lekwot & 6 others.
(ii) Nullifying all the proceedings of said Tribunal from the 4th day of December, 1992 until the said date of judgment.
(iii) Fixing a date for the hearing of application filed by the applicants on the 2nd of December 1992 for stay of proceedings of the 1st respondent Tribunal pending the determination of the appeal.
AND for such further order or other orders as Honourable Court may deem fit to make in the circumstances.
AND FURTHER TAKE NOTICE that the grounds of the said E application are as follows:
(i) On the 2nd day of December, 1992, the appellants filed in the Supreme Court for stay of proceedings in charge No. KD/C&CDT/5/92 then pending before the 1st Respondent until the final determination of the appeal then pending before the Supreme Court.
(ii) On the same day the appellants filed all Ex-Parte application for stay of the afore-said proceedings until the determination of the Motion on Notice referred to above.
(iii) Notwithstanding the fact that the said applications were duly served upon the 1st respondent on the 4th of December, 1992, the 1st respondent continued with the said proceedings until 2nd February,1993, when it delivered its judgment.
(iv) By thus proceeding with the trial, the Tribunal had pre-empted the exercise of the jurisdiction of the Supreme Court to grant a stay of proceedings.
(v) Notwithstanding the fact that the application for stay of proceedings pending appeal was patently urgent, the Supreme Court Registry has failed to list the application for hearing.”
The motion was supported by an affidavit of’) paragraphs sworn to by one Adewale Adesokan, a legal practitioner in the Chambers of Messrs G. O. K. Ajayi & Co. Solicitors to the appellants/applicants. Paragraph 2 to 9 read thus –
“2. On 2nd of December 1992 we filed in the Supreme Court on behalf of the Appellants a Motion Ex-Parte and a Motion on Notice for an order granting a Stay of Proceedings in Charge No. KD/C & CDT/ 5/92 which was pending before the 1st Respondent.
- I served a copy of the Motion on Notice on the lst Respondent on 4th December /992 1lI1d the same Was received and signed for by one Y. K. Adeyerni a Deputy Secretary. A copy of the Motion Paper on which the Secretary to the lst Respondent Tribunal acknowledged service thereof is now produced and shown to me marked “AA1″.
- The said Motion on Notice Was also served on the office of the Honourable Attorney-General of the Federation and Minister of Justice on 3rd December 1992.
- That when we realised that the Tribunal had adjourned the said Charge No. KD/C&CDT/5/92 to the 14th of December 1992 for continuation of trial not withstanding the service upon it of the application to May the same proceedings Chief G. O. K. Ajayi S.A.N., our Principal, wrote a letter to the Tribunal urging it not to proceed with the trial.
A copy of the said letter is now produced and shown to me marked “AA2”.
- That the letter referred to in paragraph 5 was delivered by me to the Registrar of the Tribunal before the Tribunal commenced sitting on the 14th of December 1992.
- That when the Tribunal commenced sitting on the 14th of December 1992 and called upon the Prosecution to call his next witness. I drew the attention of the Tribunal to the Motion for Stay of its proceedings which was and is still pending before this Honourable Court and to the aforementioned letter of Chief Ajayi to the Tribunal but the Tribunal ignored me and proceeded with the trial.
- I have now become aware that the Tribunal delivered judgment in the said Charge No. KD/C/CDT/5/92 on the 2nd of February 1993 in which it convicted the lst and the 3rd-7th Appellants/Applicants of culpable homicides punishable with death.
- Unless the judgment of the Tribunal is first set aside it will be impossible for this Honourable Court to begin to exercise its undoubted jurisdiction to consider the Appellants’ application and to decide whether or not it will grant Stay of Proceedings prayed for.”
Moving the motion Chief Ajayi, SAN, learned counsel for the applicants, relied on the affidavit in support and the brief of argument filed on 23/6/93 as earlier ordered by this Court on 27/5/93. He said the respondents have filed no counter affidavit in opposition and as such the court should treat all averments of facts as undisputed. He said not withstanding the fact that the Motion on Notice for stay or proceedings was served on the Tribunal, it nevertheless proceeded to hear the case against the applicants until it concluded same on 2/2/93 when it delivered its judgment. That, that was an attempt by the Tribunal to frustrate the exercise by this court of its undoubted jurisdiction to hear the said motion.
He said that was also an unjustifiable attack on the due process of administration of justice. It was submitted that nobody however highly placed should be allowed to pre-empt the decision of a court of law. When an application for stay of execution or proceedings is pending before any court, such court must remain “master of the situation”, and one litigant must not be allowed to assume that role at the expense of the other litigant or of the court. It was further submitted that by proceeding with the trial of the applicants the Tribunal was guilty of contempt of court in that it had pre-empted the exercise of the jurisdiction that belonged to this Court. A number of authorities were cited including –
VASWANI TRADING CO. V. SAVALAK (1972) 1 ALL NLR 4R3
OJUKWU V. GOV. OF LAGOS STATE (1985) 2 NWLR (Pt. 10) 806
GOV. OF LAGOS STATE V. OJUKWU (1986) I NWLR (PI. 18) 621 at 638
ATTORNEY-GENERAL V TIMES NEWSPAPERS LTD. (1974) AC. 277 AT 307
EZEGBU V. F.A.T.B. (1992) 1 NWLR (Pt. 220) 699
MOHAMMED V. OLAWUNMI (1993) 4 NWLR (Pt. 287) 254 AT 277.
The court was urged to follow the authorities above and set aside, undo or nullify the pre-emptive act of the Tribunal and that after the “slate” must have been wiped clean, this Court would then be in a position to exercise its jurisdiction to grant or refuse the application for stay of proceedings. When asked by the court why copies of the proceedings of the Tribunal and the judgment to be set aside were not exhibited or attached to the motion, Chief Ajayi replied that the affidavit in support contained all the relevant facts necessary tor the application and that it is the trial of the applicants that is in issue and not their conviction as they have no appealed against their conviction any Court. When reminded that the Tribunal had since been wound up, Chief Ajayi said the ceasure of a Tribunal or judge should not stop this court from exercising its powers or jurisdiction to grant the application, The Court was urged to set aside the proceedings and judgment of the Tribunal from 4/12/92 to 2/2/93 when it delivered its judgment.
Responding, Mr. Onwugbufor learned Solicitor-General of the Federation, submitted that the application which is to set aside the Proceedings and judgment of the Okadigbo Tribunal is not properly before this court. He referred to the Notice and Grounds of Appeal in the record and said they only raise issue of jurisdiction pertaining to proceedings in respect of Fundamental Human Rights before a Kaduna High Court. In addition he said the relevant proceedings of the Tribunal and its judgment sought to be set aside do not form part of the record before the Court. The prayers in the motion, he said, are not necessary for the determination of the appeal which is only on jurisdiction. It was also submitted that the VASWANI and OJUKWU cases relied upon by the applicants are clearly distinguishable from the case herein in that in the former cases the court was dealing with physical houses subject matters of the suits, whereas in this Case a Tribunal that has since been disbanded or wound up is involved. Another important difference between the cases cited by Chief Ajayi and this case is that in ail the cases cited the acts complained of were those of the parties themselves and not that of the court or tribunal simpliciter. He said any appeal from the decision of the Tribunal would go to a Confirming Authority and will not come to this court. He added that the judgment and sentence of the Tribunal had in fact long been confirmed, part of the sentences served, and the appellants released. He said the motion is an indirect way of asking this court to do what it has no power to do, not being a Confirming Authority of the Tribunal decision, He said Decree NO. 55 of 1992 which carne into force on 1/12/92 before the motion for stay of proceedings was filed in court on 2/12/92, and served on the Tribunal on 4/12/92, expressly provides that everything partaining to the Tribunal cannot be questioned in any court, We were therefore asked to take the Decree into consideration in deciding the motion.
It was further submitted that the Tribunal was never in contempt of this court because in the first place no order of court was made or issued against the Tribunal throughout its sittings, and secondly that the action of the. Tribunal was amply protected by Decree No. 55 of 1992. He referred to the cases of-
KALU V. ODIU (1992) 5 NWLR (part 240) 130 at 164
ATTORNEY·GENERAL OF ANAMBRA STATE & ORS. V. OKAFOR & DRS. (1992) 2 NWLR (Part 224) 396 at 492
AKIBU V. ODUNTAN (1991) 2 NWLR (Part 171) 1 at 10.
He said this court should not lend its power to set aside the proceedings and judgment of the Tribunal through the back door except by way of a proper and valid appeal which is non-existent in this case. We were urged to dismiss the application.
Chief Ajayi in reply agreed that the appeal before this court is on jurisdiction only, but added that despite Decree No. 55 of 1992, the court can still decide whether or not it has jurisdiction. He said the court should grant the application.
I have given careful consideration to the submissions of counsel on both sides. Because of the nature of the order which I intend to make finally, I do not wish to dwell too much on the merit or otherwise of the application itself.
Clearly the appellants/applicants’ appeal before this court is in respect of the ruling of Kaduna High Court under the Fundamental Human Rights (Enforcement Procedure) Rules 1979, whereby the appellant/applicants were granted leave to bring the application for prohibiting the Tribunal from proceeding or further proceeding with the trial of the appellants and were refused the prayer for stay of proceedings of same. The appellants appealed to the Court of Appeal Kaduna division against the order refusing them stay of proceedings of the Tribunal. The Court of Appeal by majority of 2:1 held that the Kaduna High Court lacked jurisdiction to have entertained the motion. It therefore struck-out the motion before the Kaduna High Court for lack of jurisdiction. The appellants thereafter appealed to this court. They riled only two grounds of appeal, which without particulars read thus –
“ERROR IN LAW
(1) The Court of Appeal (Mustapha and Oduwole JJCA.) erred in law in holding that the Kaduna High Court had no jurisdiction to hear and determine the appellants’ application on the ground that the jurisdiction of the courts had been ousted by section 8 of the Civil Disturbances (Special Tribunal) Act Cap. 53 Laws of the Federation of Nigeria.
(2) The Court of Appeal (Mustapha and Oduwole JJCA.) erred in law in holding the view that the words “as amended” after the words A. “the Constitution of the Federal Republic of Nigeria 1979″ incorporated all Decrees that had repealed or suspended or modified the 1979 Constitution.”
It appears to me therefore from the facts stated above that there is nothing directly emanating from the proceedings of the Tribunal before the High Court or the Court of Appeal or this Court. The issue is simply about the jurisdiction of the High Court regarding the ex-parte application made at the High Court by the appellants themselves. Chief Ajayi in his address has made no attempt to show to us that an appeal lies from a decision of the Tribunal to the High Court or to the Court of Appeal or to this court. And clear enough no decision of the Tribunal is involved either in the motion before the High Court or in the appeal.
I am therefore inclined to agree with Mr. Onwugbufor that the appeal pending in this court has nothing to do with the proceedings or judgment of the Tribunal which we were told started on 4/12/92 and ended on 2/2/93 with the judgment. I agree with Chief Ajayi when he submitted that both the court from which an appeal lies as well as the court to which the appeal lies have the duty of ensuring that the appeal if successful, is not rendered nugatory and that the court will make an order to that end (see for example KIGO (NIGERIA) LTD. v. HOLMAN BROS. (NIGERIA) LTD. (1980) 5- 0 7 SC. 60; OGUNREMI v. DADA (1962) 1 All NLR 663; VASWANl v. SAVALAKH (supra); SHODEINDE & ORS. v. AHMADlYYA MOVEMENT-IN-ISLAM (1980) 1-2 SC. 163). But as I have shown above, the appeal before this court has its origins in the High Court, Kaduna and not in the Tribunal. This made the application look rather abnormal or unusual.
Added to this is the fact that Chief Ajayi has not deemed it necessary to exhibit to this motion the proceedings and judgment of the Tribunal from 4/12/92 to 2/2/93 (both dates inclusive) which he wanted us to nullify and set aside. The omission I believe is a serious irregularity as no court would make an order setting aside or nullifying proceedings or judgment on which it has never set its eyes! I think mere affidavit evidence verifying the facts would to my mind be insufficient.
And I so hold.
On these grounds I have without hesitation come to the conclusion that this application is not properly before us. The circumstances are such that it is only just that the application should be struck-out as incompetent. And it is hereby struck-out. The respondents are awarded costs of one hundred (N 100.00) naira only.
Other Citation: (1997) LCN/2715(SC)
