Yahaya Farouk Chedi & Anor V. Attorney-general of the Federation (2007)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A.

In the Federal High Court holden at Abuja, the Appellants were charged on a three-count information as follows:

”COUNT 1

That you Yahaya Faruk Chedi ‘m’ 47years old, Abubakar Rabo Abdulkareem ‘m’ 33 years old, both of No. 37, Chedi Quarters, Kano, Kano State between 2003 and 2006 in Kano within the jurisdiction of the Federal High Court with intent to subvert or promote the subversion of the Government or of its officials did conspire among yourselves to commit felony to wit: managing, assisting in the management and membership of an unlawful society known and called HISBAH BOARD ORGANISATION and you thereby committed an offence contrary to Section 516 of the Criminal Code Act, Chapter 77 Laws of the Federation of Nigeria 1990.

COUNT 2

That you Yahaya Faruk Chedi ‘m’ 47 years old, Abubakar Rabo Abdulkareem ‘m’ 33 years old both of No. 37 Chedi Quarters, Kano, Kano State between 2003 and 2006 in Kano within the jurisdiction of the Federal High Court are members of an unlawful society called HISBAH BOARD ORGANISATION and you thereby committed a felony contrary to and punishable under Section 64 of the Criminal Code Act Chapter 77, Laws of the Federation of Nigeria, 1990.

COUNT 3

That you Yahaya Faruk Chedi ‘m’ 47 years old, Abubakar Rabo Abdulkareem ‘m’ 33 years old both of No. 37, Chedi Quarters Kano, Kano State between 2003 and 2006 in Kano, Kano State within the jurisdiction of the Federal High Court managed and assisted in the management of an unlawful society of more than ten persons known and called HISBAH BOARD ORGANISATION contrary to section 62 (2)(1) and punishable under section 63 of the Criminal Code Act, Chapter 77 Laws of the Federation of Nigeria 1990. ”

The facts of this case briefly are that, after the above stated criminal charges had been preferred against the Appellants, trial commenced on 4/4/06. The Respondent had taken four out of five witnesses listed to be called by it. On 25/4/06, the Respondent in the course of the trial filed a motion for stay of proceedings which was opposed by the Appellants. This Court granted the Appellants bail on a 9/5/06, the Appellants having been first refused by the trial court. On 23/5/06 the date the ruling on the motion for stay of proceedings was to be delivered, the learned trial Judge observed that the processes of the Supreme Court in suit No. SC/26/2006 referred to in the Respondent’s application were not supplied by the Respondent. The learned trial Judge therefore called for the production of the said processes for his consideration and counsel for both parties addressed the trial court on the relevance of the said processes to the application for stay of proceedings. Consequently, the learned trial Judge delivered his ruling on 27/6/06 granting the application for and ordered a stay of the criminal proceedings pending before him.

The Appellants dissatisfied with the ruling filed this appeal. On 28th day of June, 2006, the Appellants filed a Notice of Appeal containing three grounds of appeal. Both sides filed and exchanged briefs of argument as provided for by the relevant rules of this Court.

The briefs were respectively adopted by learned counsel for both parties at the hearing of the appeal on 15/01/2007.

Learned counsel for the Appellants, Yusuf O. Ali Esq. Senior Advocate of Nigeria, urged the Court to allow the appeal and order the learned trial Judge to go on with the hearing of the case against the Appellants before that court. He also submitted that the case of Ajomale Vs. Yaduat Supra, relied upon by the Respondent not apposite is irrelevant to the case under consideration. He observed that the special consideration is that the liberty of the Appellants are involved.

Replying, learned counsel for the Respondent Mrs. G. E. Odegbaro submitted that there is a pending case at the Supreme Court, and the decision thereof will affect the outcome of the case against the Appellants in the trial Court. He urged the Court to dismiss the appeal in its entirety and uphold the ruling of the trial court.

In the Appellants’ brief, one sole issue was submitted as covering the three grounds of and for determination in the appeal. The sole issue is hereby reproduced verbatim as follows:

“Whether the learned trial Judge exercised his discretion properly and in accordance with the law by granting respondents application for stay of proceedings when the respondent as applicant did not make out a case entitling it to the order and when the trial Judge relied on extraneous and irrelevant facts in coming to his decision”.

The Respondent in its brief also formulated one sole issue for determination in the appeal. This is reproduced verbatim hereunder as follows:

“Whether the lower Court judicially and judiciously considered the Respondents application and exercised its discretion properly and in accordance with the law in granting the Respondents application for stay of proceedings in the light of the peculiar circumstances and affidavit evidence before it:

The Court of Appeal is free to adopt issues identified by either counselor on its own volition formulate issue(s) that it considers would appropriately determine the real complaints in an appeal. See the cases of:

(1) Ikegwuoha vs. Ohawuchi (1996) 3 NWLR (Pt.435) p. 146 and

(2) Aduku Vs.Adejoh (1994) 5 NWLR (Pt. 346) p.582

In the circumstances, I shall rely on the sole issue formulated by the Appellant. I adopt same accordingly. Learned Senior Advocate of Nigeria, the lead counsel for the Appellants contended that the learned trial Judge went on a frolic and gratuitously made an order directing the Respondent’s counsel to supply the Supreme Court processes in the civil case, Suit No.SC/26/2006 rather than give his ruling on the application as argued simpliciter. Further affidavit facts ought to have been exhibited by the Respondent in respect of the said Supreme Court processes.

Failure to do this made the said processes alien to the proceedings in the matter of the application for stay of proceedings before the trial court. Indeed the order directing the submission of the said documents after argument had been closed on the motion for stay of proceedings was a fishing expedition. The documents not forming part of the record of the trial court could therefore not legally, legitimately and constitutionally be relied on by that court. On this point, reliance was placed on the cases of:

(1) Shyllon Vs. Asein (1994) 6 NWLR (Pt.653) p. 670 at p.688 and

(2) Texaco (Nig.) Plc v. Lukoko (1997) 6 NWLR (Pt.510) p.651 at p. 663.

Furthermore, the learned Senior Advocate of Nigeria referred to the cases of:

(1) Carribbean Trad. & Fid. Corp. Vs. NNPC(1991) 6 NWLR (Pt.197) p.365 at pq5- 361- 362 and

(2) Bamaiyi Vs. State (2003) 17 NWLR (pt.848) p.47 at pgs. 61 – 62.

and submitted that the principles upon which the court will act in granting or refusing an application for stay of proceedings are as follows:

(a) There must be a pending appeal. Where there is no pending appeal, there is both in law and in fact, nothing to stay. In short the application is incompetent and the court will strike it out. And the pending appeal must in law be valid. There are however certain circumstances when an application could be granted without a pending appeal.

(b) In order to enable this court exercise its discretionary power to grant an application for stay of proceedings, the appeal must be competent and arguable on it merits.

Where an appeal is frivolous, vexatious or an abuse of court’s process this court will decline jurisdiction.

(c) Whether the interlocutory order following an application for stay of proceedings will finally dispose of the case.

(d) One of the most important factors is the preservation of the “res” Where the “res” will be destroyed, damaged or annihilated before the matter is disposed of, the court will grant a stay.

(e) Another consideration is the factor of hardship. The court will be most reluctant to grant an application for stay of proceedings if it will cause greater hardship than if the application was refused.

(f) In view of the importance the courts attach to the protection of the fundamental rights entrenched in the Constitution, an application for stay will be granted if a final determination is likely to render the rights sought to be protected null and void.

(g) Where an appeal raises issue of jurisdiction of the lower court, this court will grant an application for stay of proceedings, if on the face of the appeal, the court is satisfied that there is a real issue of jurisdiction.

(h) An application for stay of proceedings being an equitable remedy, the applicant must place before the court all material facts to enable the court consider the application sympathetically.

(i) The court has a discretionary power to exercise in the matter and like every other discretionary power, it must be exercised judicially and judiciously. The discretionary power must be exercised not “in vacuo” but in relation to the facts of the particular case before the court.

According to the learned Senior Advocate of Nigeria, the Respondent did not fulfil or satisfy any of the above principles to have entitled it to the grant of the order of stay of proceedings.

Contending further, learned Senior Advocate of Nigeria argued that the application for stay was brought “mala fide” by the Respondent. This is because the Appellants were facing criminal charges in the trial court at the instance of the Respondent as complainant, trial had commenced and four witnesses had already been called. The Appellants are not parties in the Suit No.SC/26/2006 pending before the Supreme Court. The tussle is between the A.-G. of Kano State and the A.-G. of the Federation. Since the charges against the Appeliants had to do with the managing, running and belonging to an unlawful society which were not related to the legality, validity, lawfulness, constitutionality and implementation of the Hisbah Law as passed by the Kano State House of Assembly and assented to by the Governor of that State, there was neither relevance nor nexus between the Supreme Court suit and the criminal trial which culminated in this appeal.

There is therefore no legal or factual relationship, no correlation between the offences for which the Appellants are being tried and the Suit No. SC/26/2006 a civil matter. The civil matter cannot form the nucleus of an application for stay of proceedings of a criminal matter. He referred to the cases of:

(1) Nalsa and Team Associate Vs. NNPC (1996) 3 NWLR (Pt. 439) p. 621 at p. 623;

(2) In re: The Vessel M. Vs. Lupex (1993) 2 NWLR (Pt. 278) p. 670 at p. 683 and

(3) Fagbenro Vs. Orogun (1993) 3 NWLR (Pt. 284) p. 662 at p. 674.

It was further submitted by learned Senior Advocate of Nigeria that the existence of Suit No. SC/26/2006 wrongly swayed and formed the fulcrum of the trial Court’s decision to grant a stay of the proceedings before it.

It was canvassed that the processes in the said suit pending before the Supreme Court were practically smuggled into the proceedings and reliance on same by the learned trial Judge led His Lordship to doing cloistered justice in the matter of the application.

Learned Senior Advocate of Nigeria contended that it would not be equitable, just, constitutional and in consonance with the spirit and letters of the provisions of Section 35 (4) and (5) of the 1999 Constitution and the decision in the case of Bamaivi Vs. State (Supra) to allow a criminal matter to hang for an indefinite period on the heads of the Appellants who are presumed innocent like a sword of Damocles.

It was submitted by the learned Senior Advocate of Nigeria that the trial Judge did not exercise his discretion judicially and judiciously thereby rendering his ruling under attack perverse. Hence, this Court is entitled to intervene and set aside the ruling. He relied on the cases of:

(1) A.C.B. Ltd Vs. Nwadiogbu (1994) 7 NWLR (Pt.356) p.330 at p. 344 and

(2) Long-John Vs. Blakk (1998) 6 NWLR (Pt.554) p. 442 at p. 443.

In reply, learned counsel for the Respondent observed that the trial court rightly exercised its discretion judicially, judiciously and in accordance with law having taken into cognisance the peculiar circumstances surrounding the case when it granted the order staying the proceedings of the trial of the Appellants. He relied on the case of:

Achukwu Vs. Ngige (200418NWLR (Pt. 875) p. 363 at p.377

The Respondent’s counsel urged the court to hold that the cases cited by the Appellants to drive home the point that an appeal must be pending before a stay of proceedings can be granted, are not on all fours with the case under consideration. It is trite law that there are certain special and exceptional circumstances when an order of stay of proceedings could be granted without a pending appeal. He relied on the cases of:

(1) Ajomale Vs. John Ethakpemi Yaduat & Anor (1991) 5 NWLR (Pt. 191) p. 266 at p. 289 and

(2) Lanre Ladimeji & 47 ors Vs. Fed Min. of Works and Housing & 2 ors, (2000) 3 NWLR (Pt. 648) p. 340 at p.345.

The Supreme Court Suit No.SC/26/2006 constitutes the very special or exceptional circumstance for the grant of the application for stay of proceedings. The processes having been referred to in the supporting affidavit of the Respondent but inadvertently not exhibited cannot be said to have been smuggled in by the learned trial Judge and therefore could not lawfully form part of the record of the trial court. What is more, the learned trial Judge pointed out the ‘lacunae’, gave an order that the processes should be properly exhibited and called on counsel for both parties to address it on same. He relied on the case of:

Dickson Moses Vs. The State (2006) NSCQR, Vol. 26, Part 2, p. 895 at p. 948.

The Respondent’s counsel contended that there is a nexus, correlation and pivotal relevance between the criminal charges against the Appellants in the trial court and the claims with the attendant reliefs sought by the Kano State Government against the Inspector- General of Police in Suit No. SC.26/2006. He referred to reliefs 8 and 9 at page 50 of the record of proceedings, and observed that the Appellants are officials of the Kano State Government. Stay of court proceedings would be granted as in this case if continuing with the case would constitute an exercise in futility by foisting upon the court a situation of complete helplessness. On this position of law, reliance was placed on the case of:

Ajomale Vs. Yaduat Supra.

Learned counsel for the Respondent further contended that the ruling of the trial court that is being appealed was given in exercise of its judicious and judicial discretion in the given circumstances. Unless the exercise of discretion leads to injustice and or miscarriage of justice, an appellate court will not normally set aside or interfere with the exercise of discretion of a lower court. Therefore when the discretion is exercised as in the instant case, on just and legal reasons, it is judicial and judicious and would be sustained. He relied on the case of;

Royal Exchange (Nig.) Ltd Vs. Aswani Textiles Ltd (1992) 3 NWLR (pt.227) p.1 at p.5.

It is obvious that the application for stay of the proceedings of the criminal trial of the Appellants was premised upon the outcome of the case in Suit No.SC/26/2006 which was pending in the Supreme Court. Indeed, the learned counsel for the Respondent submitted in his brief that the pertinent prayer of the Respondent in the application was a stay of proceedings pending the determination of the Supreme Court case as it relates to the charge against the Appellant in the trial court.

Also the learned Senior Advocate of Nigeria, counsel for the Appellants, observed that the sole and only ground upon which the Respondent predicated its application for stay was the existence of the said Supreme Court matter. The pendency of the said suit also swayed and formed the fulcrum of the trial court’s decision to order a stay of the proceedings.

In determining the real premise of the application for stay of proceedings under consideration, it is pertinent to examine the averments of the affidavit in support thereof. For ease of reference, hereunder reproduced verbatim are some of the relevant portions of same as follows:

“1. ————————————————–

2. —————————————————

(a) That the Accused/Respondent instituted an action at the Supreme Court to determine the legality or otherwise of establishing the Hisbah Group.

(b) ————————————————-

(c) That the determination of the matter before the Supreme Court will direct/affect the matter before this Honourable Court.

(d) ————————————————-

(e) ————————————————-

See page 25 – 26 of the record of proceedings.

The learned Senior Advocate of Nigeria rightly observed that the Appellants are not parties in the suit before the Supreme Court. However, the Respondent is a party. There is no doubt however that the main purport of that suit is the determination of the legality or otherwise of the establishment of the Hisbah Group vide the Kano State Hisbah Board (Amendment) Law No.6 of 2005. Indeed, the suit is to determine the legality, validity, and constitutionality of both the Kano State Hisbah Board Law, No.4 of 2003 and the Kano State Hisbah Board (Amendment) Law, No.6 of 2005. Two of the reliefs sought in the Writ of Summons taken by the A. – G. of Kana State as plaintiff in the suit are for ease of reference, hereunder reproduced verbatim as follows:

“8. INJUNCTION restraining the defendant by himself, his agents, or privies and in particular the Inspector-General of Police from arresting, harassing or intimidate any person in the lawful execution and/or implementation of the provisions of Law No.4 and Law No.6 respectively

9. ORDER directing the defendant by himself his agents or privies to stop forthwith any interference with the lawful implementation of the provisions of Law No. 4 and Law No. 6 and in particular to stop the arrest and or prosecution of any official of Kano State Government In the lawful execution and implementation of the provisions of the said Laws.”

The underlined are mine for emphasis. See page 39 of the record of proceedings. The Appellants and others were appointed by the Kano State Governor as members of the Hisbah Board to properly coordinate the Hisbah activities in the State. 1st and 2nd Appellants are indeed Chairman/Commander General and Deputy Chairman of the said Board respectively. See paragraphs 7 and 18 of pages 41 and 46 of the record of proceedings. It is also not in doubt that the Appellants were arrested by the Inspector- General of Police and charged to court in connection with the activities and operations of the Hisbah Board. As a matter of fact, the Inspector- General of Police had earlier on declared as illegal and unconstitutional the Hisbah Laws and the operations of the bodies created by them. See paragraph 17 at p. 46 of the record of proceedings.

The charges are quite unambiguous, the Appellants are accused of being members of, managing/assisting in the management of an alleged unlawful society, the Hisbah Board Organisation. As earlier on observed in this judgment, the major subject matter of the case before the Supreme Court in Suit No.SC/26/2006 is the legality or otherwise of the Hisbah Board Oganisation.

The question to pose at this juncture is whether of a fact there is any bearing between the case in the Supreme Court and the one in the trial court, although one is civil and the other criminal in nature. The impression created by the learned Senior Advocate of Nigeria is that there is a conflict in the two cases. With respect, I do not see the slightest conflict. Indeed, I find a common denominator in both as enumerated above and at the risk of repetition, it is the issue of the legality of the Hisbah Board Organisation. The brain behind the Organisation is the Kano State Government. The Attorney-General of Kano State who is an agent of the Kano State Government is the plaintiff in the matter before the Supreme Court seeking for the declaration of the authenticity and legality of the Organisation yea, the laws establishing the Organization. In the suit, the Supreme Court is being called upon to interpret the Constitution, the grund norm of the country vis-a-vis the Kano State Hisbah Board Law, No.4 of 2003 and Kano State Hisbah Board (Amendment) Law, No.6 of 2005 and determine the validity of the laws. One of the intendments of the suit no doubt is to clear the air regarding the status of the Organisation. Its outcome will definitely impact greatly upon the case against the Appellants in the trial Court in which they are accused of being members of, managing and assisting in the management of an alleged unlawful society, the Hisbah Group.

The Supreme Court’s declaration on the said Hisbah Laws and the Bodies established by them including the Hisbah Group, will affect the legs upon which the alleged charges against the Appellants are standing. The legs will either wobble and give way or stand firmly. It seems to me that the desire of the Respondent is to ensure that the Appellants are not brought to court in vain. Hence, as soon as it became aware of the case before the Supreme Court, it promptly brought it to the attention of the trial court vide the application for stay. This step in my humble but firm opinion is an innocuous one. It is infact in tune with the principles of equity and justice that parties will not be allowed to play any hide and seek game in litigations in courts. It is pertinent to note that cases are decided not “in vacuo” but in relation to all relevant facts. Litigation is not cloaked in a shroud of secrecy. See the case of:

Chief of Air Staff Vs. Iyen (2005) 6 NWLR (Pt. 922) p. 496 at p. 547 per Nikki Tobi JSC

“Litigation is a straight-forward legal matter of adjudication which does not, or better, should not admit pretence or tricks. Litigation is not a game of vain rhetoric or insincere polemics but one of reciprocal sincerity of the parties by placing their cards openly before the court for adjudication and final decision. The principles of equity and justice will not allow any party to play pranks in litigation in court.”

The next germane issue for consideration is the state of the case before the Supreme Court that is, Suit No.SC/26/2006. The Judgment in that case was delivered on 2/3/07, the Suit was declared incompetent and struck out. See the judgment yet to be reported in the case of:

A,- G. of Kano State Vs, A,-G. of the Federation Suit SC/26/2006 delivered on Friday, the 2nd day of March, 2007.

At page 18 of the judgment, the Supreme Court had this to say:

“Quite contrary to the requirement of the law in filing actions in courts of competent jurisdiction at the reliefs in this case sought by the plaintiff in this court were claimed against the Inspector-General of Police who unfortunately is not a recognised party subject to the original jurisdiction of this court under Section 232 (1) of the 1999 Constitution. That apart, relief 9 claimed by the plaintiff namely:-

“to stop the arrest and prosecution of any official of Kano State Government in the lawful execution and implementation of the provisions of the said laws.”

being in the nature of relief arising from criminal proceedings this court is specifically barred from exercising original jurisdiction in such matters in the provision to sub-section (2) of Section 232 of the 1999 Constitution. In other words the plaintiff’s statement of claim in the present case not having disclosed any dispute between Kano State as plaintiff and the Federation of Nigeria as defendant the original jurisdiction of this court cannot be invoked to hear and determine the plaintiff’s case in the absence of any justiciable dispute between the parties. ”

The doctrine of “stare decisis” is that lower courts are bound by the previous decisions and judgments of higher courts until they are seen to have been overruled. Such decisions and judgments to all intents and purposes cannot be jettisoned. This court must therefore take cognizance of the said judgment of the Supreme Court, a superior court both in authority and jurisdiction, as it relates to this appeal. See the cases of:

(1) Odugbo vs. Abu (2001) 14 NWLR (pt.732) p.45 and

(2) Ritz & Co. K.G. Vs. Techno Ltd (1999) 4 NWLR (Pt.598) p.298

It is very patent from the record as enumerated above that the trial Court granted the application for stay of the proceedings of the criminal trial of the Appellants because, it felt that there was the possibility of the purpose of trial being rendered nugatory by the outcome of the case in the Supreme Court. The success of the Supreme Court case might finally dispose of and put an end to the proceedings in the trial Court.

With the posture of the Supreme Court as reflected in its Judgment declining adjudication of the case, the order staying the proceedings is no longer relevant. The trial Court is left with no option other than to resuscitate and continue with the trial of the Appellants. The embargo placed on the case and the veil/covering cast of stay of proceedings must automatically now be removed and lifted.

Consequently and by implication, the matter of the stay of proceedings becomes stale thereby rendering the appeal nugatory. To still go ahead to consider the real nitty gritty of the appeal will no doubt amount not only to an academic exercise but also to an exercise in futility as no useful purpose will be served thereby. It is trite in law that courts have no jurisdiction to give advisory opinions but they being courts of law can only adjudicate upon live or living issues. Issues that are not live or living are regarded as hypothetical or academic, the courts do not form the habit of engaging themselves in such an inconsequential exercise. See the cases of:

(1) Nkwocha Vs. Gov. of Anambra (1984) NSCC Vol. 15 p. 484;

(2) Paico (press & Books) Ltd vs. C.B.N (2001) 3 NWLR (pt.700) p.347.

(3) Global Trans Oceanico S.A. vs. Free Ent. (Nig) Ltd (2001) 5 NWLR (pt.706) p.426 and

(4) U.B.A. Plc. Vs. B.T.L. Ind. Ltd (2004)18 NWLR (pt.904) p.180

From the foregoing process of deduction, this appeal succeeds. The order of stay of proceedings granted by the trial Court on 27/06/2006 is hereby set aside. The learned trial Judge is accordingly ordered to resume hearing in the trial of the Appellants with the utmost dispatch. All forms of avoidable and uncalled for delays that may further clog the wheel of speeding dispensation of justice in this allegation of crime must be shunned by the trial Court.

There shall be no order on costs.

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Other Citations: (2007)LCN/2289(CA)