⦿ CASE SUMMARY OF:
Justice Onnoghen Nkanu Walter Samuel v. Federal Republic Of Nigeria (2019) – CA
by PaulPipAr
⦿ TAG(S)
– Stay of proceedings;
⦿ PARTIES
APPELLANT
Justice Onnoghen Nkanu Walter Samuel
v.
RESPONDENT
Federal Republic of Nigeria
⦿ CITATION
(2019) LPELR-47524(CA);
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Abdu Aboki, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
– CHIEF WOLE OLANIPEKUN, SAN, OFR;
* FOR THE RESPONDENT
– OYIN KOLEOSHO;
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⦿ FACT (as relating to the issues)
The Attorney-General of the Federation had on behalf of the Federal Republic of Nigeria made application to the Chairman of Code of Conduct Tribunal on 11th day of January, 2019 to enable the Respondent commence trial for the offence of failure to submit all assets and liabilities contrary to Paragraph 15 (1) & (2) 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 the same Constitution against the Honourable Mr. Justice W. S. Nkanu Onnoghen, GCON.
The Application was accompanied with four copies of the charge and an Affidavit in support. On the same date the request of the complainant was granted. Part of the Order of the Code of Conduct Tribunal which was signed by the Hon. Chairman and the two Honourable members of the Code of Conduct Tribunal reads: “And upon perusal of the summary of the evidence and or Affidavit in support, as well as accompanying charge, the Tribunal having been satisfied directs that the accused be summoned to appear before the Tribunal and plead to the accompanying charge against him.”
The accompanying charge reads thus:
“CHARGE
COUNT ONE
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON between 8th June, 2005 to 14th December, 2016 being a public officer serving as a Judicial Officer in the Federal Republic of Nigeria as a Justice of the Supreme Court failed to declare and submit a written declaration of all your assets and liabilities within the prescribed period of three (3) months after being sworn in as the Justice of the Supreme Court of Nigeria on the 8th day of June, 2005 and you thereby contravened the provisions of Section 15(1) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b. and c of the same Act.
COUNT TWO
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declared your Assets in your Declaration of Assets Form CCB 1 (after you were sworn in as the Justice of the Supreme Court of 2 Nigeria) by omitting to declare a domiciliary (US Dollar) account No, 870001062650 maintained with Standard Chartered Bank (Nig,) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) read along with Section 15(1) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2)(a), b, and c of the same Act.
COUNT THREE
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declared your Assets in your Declaration of Assets Form CCB1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) by omitting to declare a domiciliary (Euro) account No, 93001062686 maintained with Standard Chartered Bank (Nig,) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under section 23 (2) a, b, and c of the same Act.
COUNT FOUR
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declare your Assets in your declaration of Assets Form CCB1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) by omitting to declare a domiciliary (Pound Sterling) account No, 285001062679 maintained with Standard Chartered Bank (Nig,) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b, and c of the same Act.
COUNT FIVE
That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, & CON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely declare your Assets in your Declaration of Assets Form CCB 1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) by omitting to declare an e-Saver savings (Naira) account 4 No. 5001062693 maintained with Standard Chartered Bank (Nig.) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct Bureau and Tribunal! Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b, and c of the same Act.
COUNT SIX
That you Justice Onnoghen Nkanu Walter Samuel being a public officer as justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau on or about 14th December, 2016 falsely failed to declare in your Declaration of Assets Form CCB 1 (after you were sworn-in as the Justice of the Supreme Court of Nigeria) a (Naira) account No. 010001062667 maintained with Standard Chartered Bank (Nig.) Ltd. Wuse 2, Abuja which is being operated since 2011 and you thereby contravened the provisions of Section 15(2) of the Code of Conduct and Tribunal Act Cap C15 LFN 2004 and punishable under Section 23 (2) a, b, and c of the some Act.”
The complainant subsequently filed a motion on notice for the Chief Justice Walter Onnoghen to be step-aside from office of the Chief Judge until the determination of the suit.
Further, the Defendant (herein Appellant) filed a motion asserting that the tribunal does not have the requisite jurisdiction to hear and determine the charge, having not complied with several procedures for the indicting of Judicial officers.
In the course of the proceedings before the lower Tribunal on 14th day of January, 2019, the Learned senior counsel to the Appellant drew attention of the Code of Conduct Tribunal to the absence of Defendant to which the Learned Defence counsel submitted there was no need for Defendant to be present since he had filed a motion challenging the jurisdiction and that the Defendant had not been served in accordance with Section 123 of Administration of Criminal Justice Act.
Finally, the honourable tribunal ruled, “that the Notice of Preliminary Objection be taken together with the Respondent/Prosecution’s interlocutory application for the removal of the Appellant/Applicant.”
It is this said ruling that the Defendant (Appellant herein) has appealed to this Court of Appeal.
At the Court of Appeal, the Appellant further filed a motion to stay proceedings at the tribunal pending the determination of this appeal.
⦿ ISSUE(S)
The single issue is as regards the stay of proceedings.
⦿ ARGUMENTS OF PARTIES
* FOR THE APPELLANT
*FOR THE RESPONDENT
⦿ HOLDING & RATIO DECIDENDI
THE STAY OF PROCEEDING WAS DENIED.
The Court of Appeal held,
“I have carefully read all the Affidavits filed in support and against the motion for stay of further proceedings aforesaid and all the exhibits attached thereto. I have also ruminated over the various submissions and admonitions of the learned Senior Counsel to the Appellant urging this Court to grant the application as prayed in the interest of justice and the arguments of learned Counsel to the Respondent urging this Court to refuse the motion seeking for stay of further proceedings in respect of the aforementioned charge against the Appellant/Applicant. I am of the solemn view that the Appellant/Applicant motion praying this Court for an Order staying further proceedings in respect of charge No. CCT/ABJ/01/2019 between FEDERAL REPUBLIC OF NIGERIA V. JUSTICE ONNOGHEN NKANU WALTER SAMUEL before the Code of Conduct Tribunal pending the hearing and determination of the appeal filed by the Appellant/Applicant herein ought to be refused and same is hereby refused. The hearing of the appeal herein is hereby accelerated and fixed for 4th February, 2019.”
⦿ REFERENCED
⦿ SOME PROVISIONS
Section 306 of the Administration of Criminal Justice Act 2015 provides: – “An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained.”
Section 396(2) of the Administration of Criminal Justice Act provides: – “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.”
⦿ RELEVANT CASES
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⦿ NOTABLE DICTA
* PROCEDURAL
A Court has indubitable discretion and power to grant stay of proceedings in any cause or matter where there are enough materials placed before the Court and the Court is satisfied that they constitute special and exceptional circumstances. The discretion also involves an examination or consideration of collateral circumstances so it will be granted where justice of the matter demands in order to prevent the destruction of the res and subject matter of the action and to prevent the hoisting of state of helplessness. It will also be granted to prevent the emasculation of the constitutional right of appeal of the Applicant where it is obvious to the Court that there are enough strong materials placed before it vide Affidavits evidence. This Court will not hesitate to grant the order sought in order to do justice to the parties pending when their rights will be determined. It is however not granted as a matter of Course. – Aboki, J.C.A. Onnoghen v. FRN (2019)
Entering of an appeal brings about a handing over of the reins of control of the case to the appellate Court and it is expected that by the hierarchical allotment in our Constitution, a subordinate Court whose decision has been appealed on will defer to the appellate Court and not engage in any conduct that could render the decision of the appellate Court nugatory. – Jonah Adah, J.C.A. Onnoghen v. FRN (2019)
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. – Jonah Adah, J.C.A. Onnoghen v. FRN (2019)
From this decision in Saraki’s case (supra), it is clear that the Code of Conduct Tribunal is a Tribunal with a quasi-criminal jurisdiction and The Administration of Criminal Justice Act is applicable to it. – Jonah Adah, J.C.A. Onnoghen v. FRN (2019)
* SUBSTANTIVE
