Govt loses bid to stay action in suit against Russians
By Ibe Uwaleke, Judicial correspondent
LEGAL move by the Federal Government to ask the court to stay proceedings in the case brought against 13 Russians has suffered a setback.
The Federal High Court sitting in Lagos yesterday refused to grant government's application.
The Russians are on trial for allegedly lifting the country's 11,300 metric tonnes of crude oil without legal authority.
Justice Grace Okeke said in her ruling that she had gone through the notice of appeal on which ground the motion for stay was brought and could not see anything disclosing a special circumstance that could warrant the grant of stay.
More fundamental to her was the issue of the liberty of the accused persons whom she said had not been convicted for the alleged offence they were accused of.
Yesterday's ruling followed almost the same pattern as the one she delivered on October 19, 2004 when she also refused the government's application to amend the two-count charge brought against the Russians.
In fact, it was the refusal of the court to amend the prosecution's charge that forced the government to file an appeal after it accused the court of bias in the conduct of the case at the lower court.
Because it has filed a notice of appeal at the Court of Appeal, Lagos, the government bought a motion for stay of proceedings to stop further action at the trial court pending the outcome of the appeal.
The notice of appeal was filed on October 29, 2004 on which ground the application for stay was brought in order to pursue the appeal.
Arguing the application for stay, the government's counsel, Mrs. P. I. Ajoku, told the court that the pending appeal was crucial to the crux of the matter, therefore, the lower court must grant a stay.
She said that in considering a motion for stay, the court must apply its mind to the pending appeal warranting the motion, adding that it was not the duty of the complainant / appellant to say whether the appeal will succeed or not.
Ajoku further contended that the court has inherent jurisdiction to ensure the res (subject matter) is preserved as the damages caused for not granting a stay would be irreparable if the res is not preserved.
She added that where the grounds of appeal have raised substantial issue of law, the court should not hesitate to grant a stay.
Ajoku said that where such was not granted, it would amount to silencing the appellant even where there is a valid appeal.
In reply, counsel to the Russians, Chief Emeyo Etudor, asked the court to discountenance the application for stay, as, according to him, the motion was incompetent to be sustained.
He told the court that the grounds of appeal of the complainants did not disclose any issue of law but facts and that the court lacked jurisdiction to entertain the application.
He argued that the prosecution, before proceeding on appeal, did not obtain leave of court and if the court proceeded to grant the stay, the accused persons would lose their liberty as the stay would do more harm to the suspects that expected.
Justice Okeke agreed with the counsel to the Russians and said that if granted, a stay would do more harm to the liberty of the accused persons.
Before she refused the government's application, she sought to know what constituted res in the matter and whether a stay would also amount to legal or equitable remedy.
Relying on this premise, she said that if a stay would do more harm, the court would refuse it, adding that the judicial consideration of the government's application must be on the facts of the circumstance as stated by Justice Oputa in his decision.
She however adjourned the matter to January 26 for the parties to conclude oral address preceding judgment.
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