ON WHETHER COURT CAN GRANT APPLICATION FOR STAY OF PROCEEDINGS IN CRIMINAL MATTER: An insight into the Court of Appeal (Abuja Division) laudable decision in ONNOGHEN V. F.R.N. [2020] 12 NWLR PT.1738 PG. 289-302. Courtesy: Moruff O. Balogun Esq.

SUMMARY OF FACTS:
The Attorney-General of the Federation on behalf of the Federal Republic of Nigeria filed an application at the Code of Conduct Tribunal on 11 day of January, 2019 to enable the respondent commence the trial of the appellant for the offence of failure to submit all assets and liabilities contrary to paragraph 15(1) & (2) of the Code of Conduct Bureau and Tribunal Act, and 11(1) of the Fifth Schedule, part 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and punishable under paragraph 18(1) and (2) of 1999 Constitution.

The application was accompanied with four copies of the charge and an affidavit in support.. On the same date, the request of the respondent was granted and an order was made by the Code of Conduct Tribunal for the appellant to be summoned to appear before the tribunal and plead to the accompanying charge against him.

The respondent also filed a motion on notice before the Tribunal pursuant to section 6(6), paragraph 11(1) of the Fifth Schedule, part 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and prayed inter alia: an interlocutory order directing the respondent to step aside as the Chief Justice of Nigeria and the Chairman of the National Judicial Council over allegation of contravening the provision of the Code of Conduct Bureau and Tribunal Act, Cap. C15, Laws of the Federation of Nigeria, 2004 pending determination of the case; an order directing the President of the Federal Republic of Nigeria to swear in the most senior Justice of the Supreme Court as acting Chief Justice and Chairman of the National Judicial Council in order to prevent a vacuum in the judicial arm of government pending determination of the case etc.

The grounds for the application to step aside was that the appellant was the head of all Nigerian courts and Judiciary a well as the Chairman of the National Judicial Council, that it would be against the rule of natural justice for the appellant to remain the Chief Justice of Nigeria and Chairman National Judicial Council while facing trial under the same judges that he chairs their promotions, disciplinary and other related matters.

The appellant filed a motion pursuant to section 33(6), 153(1), 158(1), 292(1)(a)0), paragraph 21(B) part 1, of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and prayed for an order striking out and/or dismissing the charge preferred against him on grounds inter alia: that the appellant was a judicial officer, a Justice of the Supreme Court of Nigeria and the Chief Justice of Nigeria, and that the constitutional provision for his removal had not been complied with, the charge was in bad faith and the Tribunal had no jurisdiction to entertain the charge.

On 14h January 2019, when the proceedings started, the appellant was not in court. The counsel to the appellant drew the attention of the Tribunal to the fact that the appellant had not been served in accordance with Section 123 of the Administration of Criminal Justice Act and that the appellant had filed an application to challenge the jurisdiction of the tribunal to hear the criminal charge against him, and that they were ready to move their preliminary objection. The respondent applied for the charge to be served on the appellant personally and contended that the appellant had to be in court before objection could be taken. The counsel to the appellant contended that the appellant need not be in the court before objection could be taken.

The trial Tribunal after hearing the parties ordered for substituted service on the appellant and adjourned for hearing of both applications challenging the jurisdiction of the tribunal and the one by the respondent seeking for an interlocutory order directing the appellant to step aside as the Chief Justice of the Supreme Court pending the hearing of the criminal allegation.

The appellant being dissatisfied with the decision of the trial Tribunal to hear the two motions together filed a notice of appeal at the Court of Appeal. The appellant also filed an application for stay of proceedings in respect of the charge against the appellant before the Code of Conduct Tribunal pending the hearing and determination of the appeal filed by the appellant.

Held: Unanimously dismissing the application.

On Whether court can grant application for stay of proceedings in criminal matter-
The jurisdiction of Courts to grant stay of further proceedings in the course of a criminal trial in a court or tribunal has been greatly curtailed by the provisions of sections 306 and 396(2) of the Administration of Criminal Justice Act, 2015.

Section 306 provides that an application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained, whilst section 396(2) states that after the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment. The provisions allow for speedy trial of cases and meant to obviate the difficulties often encountered by trial courts which are most often bogged down by interlocutory appeals filed by defence counsel in order to stultify proceedings and if possible, truncate trials of accused persons.

On Nature and aim of order of stay of proceedings –
An order of stay of proceedings either before a court, a tribunal, an arbitrator or judicial commission of inquiry is a fundamental interruption in the proceedings of the court or tribunal. Order of stay of proceedings is an equitable order so it cannot be made in vacuo. The aim of an order of stay is usually to protect the res to avoid a situation where the res is wrecked before the appellate court exercises its jurisdiction. A stay of proceedings is not granted as a matter of routine. It is a matter of law and facts. The law must provide for it and the applicant must satisfy the court that the proceedings must not be allowed to continue in the interest of justice.

On When to file application for stay of proceedings-
The following circumstances give rise for applications for stay of proceedings.
The usual cases of applications for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the court, pending the outcome of the appeal on the interlocutory decision.

The application is also made after final judgment, when the defendant or plaintiff against whom judgment was given having appealed against the judgment seeks to stay proceedings in respect of execution pending the determination of the appeal. This is generally referred to as a stay of execution or injunction or stay of proceedings. The effect is generally the same, namely to suspend any proceedings in relation to the matter; and
Other cases, where a plaintiff after commencing an action against the defendant and during its pendency proceeds to initiate another action against the same defendant whether in this country or abroad, in respect of the same or substantially similar subject-matter. The defendant is entitled in such a circumstance to apply for a stay of proceedings in the latter action.

On Whether application for preliminary objection can stop trial court from proceeding with substantive criminal trial –

The application for preliminary objection cannot stop the trial court from proceeding with the substantive trial since section 396(2) of the Administration of Criminal Justice Act, 2015 allows for a consideration of any objection to be done at the time of delivery of judgment in the substantive case. The section provides that after the plea has been taken, the accused person may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the Substantive issues and a ruling thereon made at the time of delivery of judgment. The provision allows for speedy trial of cases and is meant to obviate the difficulties often encountered by trial Judges who are bogged down by interlocutory appeals filed by defence counsel in order to stultify proceedings and if possible truncate trials of accused persons.

On What due process entails:
The court is the home of due process. Due process demands that legal proceedings are conducted according to rules and principles. The notion of justice is justice according to law and not justice that is tailored to sentiments, whims and caprices of individuals.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.