Femi Falana: How the Supreme Court banned stay of proceedings!

Those colleagues who think, rather erroneously, that they are defending the Supreme Court ought to be reminded of the state of the law on stay of proceedings before the enactment of the ACJA. Following the embarrassment caused by the conviction of James Ibori in a British Court after he had been freed by the federal high on the basis of the preliminary objection raised by the defense team led by Mr. James Daudu SAN the federal government expressed concern over the manipulation of the legal system by politically exposed persons. In response to the serious complaint the heads of the Supreme Court, Court of Appeal and Federal High Court issued Practice Directions to fast track the trial and appeals arising from cases of corruption, money laundering, human trafficking, kidnapping, rape and terrorism.

Thus, pursuant to Order 1 of the Federal High Court (Criminal) Practice Directions, 2013 the rules shall minimize undue adjournments and delays and reduce the time spent at trials dealing with interlocutory matters and ensure that hearings are not stalled by unpreparedness of Court or the parties. Order 6 thereof stipulates that the hearing of cases prosecuted by the EFCC, ICPC and SSS shall be conducted on a day to day basis as far as the schedule of the Court may permit. Without ensuring that investigation has been concluded and a prima facie case established a prosecutor shall not file against a defendant in the court.

In order to discourage interlocutory appeals, Order 7 of the Court of Appeal Practice Directions 2013, provides that “the courts shall refuse to hear appeals arising from interlocutory decisions of the court below where the matter deals with any of the issues in 3 above and the court is of the opinion that the grounds raised in the appeal are such that can conveniently be determined by way of an appeal arising from the final judgment of the court below.” Instead of entertaining interlocutory appeals the Court of Appeal may order the trial court “to accelerate hearing in the substantive suit.”

Order 10 of the Supreme Court (Criminal Appeals) Practice Directions, 2013 is in pari materia with Order 7 of the Court of Appeal Practice Directions, 2013. It is however provided that the apex court “ will only determine applications which cannot be taken with the substantive appeal.” For the avoidance of doubt, each Panel of the Supreme Court shall take all steps “to reduce the time spent on hearing and determination of interlocutory applications both at the trial court and appeal and in the process minimize avenues for parties to make use of interlocutory applications as a means to frustrate or delay the expeditious conduct of cases at the Courts below.”

Furthermore, the President of the Court of Appeal issued the Court of Appeal (Fast Track) Practice Directions 2014 on December8, 2014. Order 4 of the Practice Directions specifically states that that active case management includes “discouraging interlocutory appeals and requiring parties, except in the most deserving cases, to subsume their interlocutory matters under a final appeal or under the substantive suit at the trial court,” In dealing swiftly with applications and objections to minimise their interruption of the main proceedings the Court will penalise delay tactics with heavy costs and rely on technology to aid case management. Court processes may be served by electronic means.

It is abundantly clear from the foregoing, that the Federal High Court and both appellate courts in the country had, before the enactment of ACJA, adopted measures to discourage parties and their counsel from resorting to interlocutory appeals to frustrate the hearing and determination of cases of economic crimes and terrorism. To that extent, it is of no moment to insist that the abolition of stay of proceedings and interlocutory appeals by the ACJA is illegal and unconstitutional. Therefore, the contempt proceedings being initiated by Mr. Daudu will certainly provide an opportunity for me to join issues with the lawyers who are manipulating the criminal justice system to shield members of the ruling class from prosecution for grand corruption while indigent suspects are railroaded to jail over minor economic offences.

Femi Falana, a human rights activist is a Seniour Advocate of Nigeria