A Fact neither Challenged nor Rebutted Is Correct
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 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.
Issues for Determination
- Whether by hearing the appeal and adjourning judgment to 4 pm 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].
- 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 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 Appellant’s right to fair hearing and occasioned a miscarriage of Justice? [Ground 2].
- 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 41.]
- 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 court‘s adjudicative powers and (ii) for ensuring a fair trial for the Appellant before an independent and impartial Tribunal [Ground 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) and whether the courts below were right in indulging such a contempt nor who was 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 6 & 7].
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 lst 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. 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.
I have perused the appellants three issues formulated for the determination of his appeal at the court of appeal, as well as the 1st respondents 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 contempt nor. 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 appellant’s application seeking to stop the prosecution from further prosecuting the charge against the appellant before the (trial) court on the ground that the 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 appellant’s issues are hopelessly inelegant and incomprehensible, that the court hearing the appeal can prefer the respondent’s issue(s) to the appellant’s 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 283; (2001) 4 SCN] 103 at 116 117 (if ever these weird reports 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 lst respondent’s sole issue in preference to his 3 issues, which in my view are subsumed in the lst 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 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. DA RAP 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 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 lst 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 lst 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.
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. IKHIME (2001) 12 SC (pt. 11) 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 appeal lacking in merit and being clearly an abuse of court process, is hereby dismissed in its entirety. The case is remitted to the 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.
Representation
Chief J. B. Daudu, SAN, leads Ahmed Raji, SAN, with Adeola Adedipe, Esq; C. E.
Ogbozor, Esq; and M.Y. Sula, Esq., for the Appellant (in appeals Nos. SC. 617/2016 & SC 618/2016).
Rotimi Jacobs, SAN, with A. O. Atolagbe, Esq, and H. O.P Ejiga, Esq. for the 1st Respondent (in appeals No. SC. 617/2016 & SC. 618/2016).
Olumide Olujinmi, Esq, with Richard Ebitade, Esq; Ademola Owolabi, Esq; and Balogun, Esq, for the 2nd Respondent (in appeals Nos. SC. 617/2016 & SC. 618/2016).
Solomon Umeh, SAN, with S.O. Enejah, Esq; U.U. Fingesi, Esq; and E. M. Uyo, Esq, for the 3rd Respondent (in appeals Nos. SC. 617/2016 & SC. 618/2016)
- Aderemi, Esq, for the 4th Respondent (in appeals No.. SC. 617/2016 & SC. 618/2016).
- Ayodele, Esq; with M. D. Ayodele, Esq, for the 5th Respondent (in appeal No. SC. 617/2016).
Olushola Dare, Esq; with E.A. Dare, Esq, for the 4th & 5th Respondents in appeal No. SC. 618/2016.
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