Being text of a paper delivered by law teacher and prosecutor Wahab Shittu at the Presidential Advisory Committee against Corruption (PACAC) roundtable on July 24. Tackling abuse of Stay of Proceedings in India The case of OlisahMetuh v FRN is revolutionary for outlawing stay of proceedings in criminal trials and upholding the constitutionality of section 306 of ACJA, 2015. We ought to commend the Supreme Court for the courageous decision and the controversy against the ruling is needless and groundless. The concern that has arisen from the abuse of stay of proceedings to stall criminal trials may not have been peculiar to Nigeria. In India, the Supreme Court ruled that a stay of proceedings by an appellate court in any pending trial to either corruption or civil or criminal cases shall not operate for more than six months without a speaking order. The justification as observed by the court is that the “cancer of corruption has eaten into the vitals of the state and needed to be nipped in the bud.” Secondly, the other justification is that the power to stay the trial of proceedings has to be exercised with ‘restraint’ particularly in corruption cases. In further providing justification for the ruling and condemning the element of delay in the criminal trial process particularly as it relates to corruption, the Supreme Court of India observed as follows: “It is well accepted that delay in a criminal trial, particularly in the Prevention of Corruption Act cases, has deleterious effect on the administration of justice in which the society has a vital interest. Delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development…Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability.” Clearly from the foregoing the constitutional mandate of expeditious disposal of a trial should be respected. The India template may have laid down the time limit for the stay of proceedings to six months but our Supreme Court in the Olisah Metuh v FRN did not impose any such time limit but ruled in favour of outright ban of stay of proceedings in criminal trials. This is consistent with statutory provisions as enshrined under section 306 ACJA and section 40 of the EFCC Act. This may also have arisen as a result of the fragrant abuse of stay of proceedings by counsel to stall the progress of criminal cases. As Professor YemiAkinseye George puts it: “Prior to Metuh, the Nigerian criminal justice system had literally become a failed system principally on account of its painful and pathetic inability to conclude High Profile Criminal Cases, particularly those involving politically-exposed persons (PEPs). Such cases dragged on interminably in the justice system…” This is a major source of concern which the Supreme Court decision in OlisahMetuh v FRN sought to address frontally, and I dare say, courageously. Summary of arguments The impact of the revolutionary decision of the Supreme Court in OlisahMetuh v. FRN are far-reaching.
- The effect of the combined provisions of sections 306 of the ACJA, 2015 and 40 of the Economic and Financial Crimes (Establishment) Act2004 is that no court has the power to stay proceedings in criminal trials.
- The effect of section 22 of the Supreme Court Act is limited to making an interim order or grant any injunction which the court below is authorized to make or grant and does not cover powers to order stay of proceedings in a criminal trial which are outlawed by sections 306 of the ACJA and 40 of the EFCC Act.
- Stay of proceedings in criminal trials is incompatible with the spirit and letters of section 36(4) of the Constitution which provides that ‘any person charged with a criminal offence is entitled to a fair hearing in public within a reasonable time’.
- The attitude of court as evidenced by the recent practice direction issued by respective heads of court is to fast track trials of cases involving corruption, economic and financial crimes, human trafficking, money laundering, rape, kidnapping and terrorism amongst others.
- Section 6(6)(b) of the constitution of FRN (as amended) does not confer specific powers on the Supreme Court to stay further proceedings in criminal trials.
- Section 15 of the Court of Appeal Act cannot be invoked to stay proceedings in criminal trials as such exercise of powers is outside the jurisdiction of the trial court and by extension the Court of Appeal.
- Delay of criminal trial proceedings is dangerous to justice delivery system. When proceedings are stayed, trials of cases are delayed. In many cases vital witnesses may have died, evidence may have been tampered with etc. in the end, justice is defeated.
- The argument that the decision outlawing stay of proceedings in criminal trials infringes right of appeal of the defendant is not correct. There is a distinction between stay of proceedings and right of appeal. The defendant is at liberty to raise whatever issues he/she is aggrieved about during the trial process on appeal at the end of the case, which right of appeal is still constitutionally guaranteed to the defendant. Consequently, the fact that the defendant is not allowed to stay proceedings does not translate to the erroneous view that his right of appeal is no longer guaranteed. The point being made is that stay of proceedings is antithesis of speedy trial guaranteed by the constitution. If the constitution advocates speedy trial, why emphasize stay of proceedings at the expense of speedy trial process?
- Closely related to this argument is the fact that the decision outlawing stay of proceedings is not peculiar to criminal trials. It is also adopted in election petition proceedings and it has been assisting tremendously in delivering speedy trial process. If Counsel has no difficulty with compliance in election petition proceedings why should stay of proceedings in criminal trials be different?
- Rather than advocate for right to stay proceedings, the emphasis in my view, should be on advocacy for constitutional timeframe for concluding criminal trials. It is also important to monitor security and investigative agencies in delivering on quality investigation. In many instances, cases are lost on account of poor investigation.
- Significantly, we should enhance the quality of investigation outcomes. The first proposal that I wish to make is that no case should be taken to court without proper investigation no matter the extent of public outcry. Secondly, emphasis should be placed on investigation led arrests as opposed to arrest led investigations. Thirdly, arraignment of suspects in court should be based on verifiable, conclusive and supportable findings arising from diligent investigations. Fourthly, investigators must be available at all times to give evidence in proof of the outcomes of the investigations. Fifthly, investigators must carry out all necessary steps including obtaining all relevant evidential materials in support of investigations. It is also important to guarantee the security and welfare of investigators including potential witnesses as well as sensitive documents in aid of the trial process. More importantly, it is important that the investigation process is adequately monitored to forestall compromise and severe sanctions should apply in the event of breaches. The other element that should be guaranteed is the security of evidential materials recovered during investigations if possible ensuring that such materials do not fall into private hands who could be subject of attacks targeting of course the recovery of those documents. It is also important to constantly test the character, integrity and moral standards of investigators including ensuring availability of up to date training programmes for investigators. There should also be stiffer penalties available to officers who deliberately bungled investigations for pecuniary or other vested interests. My final take on this is to call for a code of ethics to be put in place for all categories of investigators as a policy framework
- There is urgent need to domesticate the ACJA across the states of the federation to ensure speedy justice delivery. Nigeria stands to benefit quick dispensation of justice and observance to human rights, if the provisions of administration of criminal justice act are domesticated and implemented in states across the country.
- Advocates of stay proceedings in criminal trials are quick to rely on the FRN v. Dr. Bukola Saraki where the Apex court granted stay of proceedings. Significantly, that case was distinguished by the Supreme Court in the Olisah Metuh v FRN’s case and the reasoning behind the distinction can hardly be faulted.
- Shittu is EFCC External Prosecuting Counsel and Lecturer, Department of Jurisprudence and International Law, University of Lagos (UNILAG) & currently a Postgraduate (Ph.D.) Research Student as well as Principal Partner, W.K. Shittu & Co. (Legal Practitioners).
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