Abia State Co-operative Federation Ltd. V. Imo State Co-operative Produce Marketing Association Ltd. & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

This is appeal from the judgment of Isuama. J. the Abia State High Court delivered on 25/10/96. By its title, the appeal appeared to be in connection with a decision in a dispute between what appear to be two Cooperative Societies of Imo State and Abia State whether it so ended in the court below was the issue before the court below. Here are the facts. The respondents in this appeal and there are two of them: (1) Imo State Cooperative Produce Marketing Association Ltd; and (2) Ibeneme Transport Services Ltd, who was in the court below representative by its Attorney, Chief Innocent Obi against Abia State Cooperative Federation Ltd.

The now respondent took out a writ on 9/6/93 against the defendant now the appellant. In thw writ, the plaintiff in the court below, claimed declaratory relief and injunction and for a certificate of occupancy to the building property known as No.9 Ojike Lane Abia State. On 15/6/93, the now appellant as defendant filed what he called “notice of a counter claim”. The Attorney-General Abia State also took out a writ of summons in a separate action against the respondent. Because the Attorney-General did not proceed with the prosecution of writ, it was struck out. The respondent objected to the counter-claim of the appellant, it was struck out by kalunta. J., who was then trial judge, against whom the now appellant had filed a motion asking for the case to be removed from the court, but the motion was eventually withdraw by the now appellant. After that as the matter continued the notice of counter-claim filed by the appellant was struck out for other reasons by Kalunta J. the trial judge was on 27/10/95 transferred to another judicial area. Another judge, Isuama, J., took over the matter between the parties as the trial court. The appellant filed another application seeking a relisting of his counter-claim struck out Kalunata. J. Isuama. J., considered the application of relist, and the prayer of the defendant for a stay of proceedings and refuge both applications on defendant for a stay of proceedings and refused both application on 31/7/96. The defendant filed a notice of appeal to the Court of Appeal against the rulings. Hearing started in the substantive appeal nearly two months after on 30/9/96 when evidence of PW1 was taken. Hearing continued on 14/10/96 when the appellant asked for an adjournment. The hearing was adjourned to 15/10/96 for cross examination of the plaintiff’s witnesses who had already testified on 14/10/96. At this stage it is pertinent to state that on conclusion of the case, it is said that the case file was missing and the contents of the record made here taken from the file of one of the parties. The date entered therefore does not appear to be correct in some cases. About the time this case was proceeding, Ebonyi State was created and the trial Judge. Isuama, J., was being proposed as the Chief Judge Ebonyi State. The two events had effect on the proceedings in the court below. The application of the defendant for adjournment made on 14/10/96 was refused and the defendant refused to cross-examine the witnesses. Hearing however continued on 15/10/96. PW2, PW3 subsequently testified. The plaintiff now, respondent closed his case. Again the defendant asked for an adjournment to consult his counsel. The court agreed and adjourned the matter to 22nd October 1996 to enable the defendant defend. Meanwhile, the defendant filed an application for a stay of proceedings of the matter pending the determination of the appeal which the appellant had filed in the Court of Appeal on 12/8/96. When the trial court granted an adjournment to the defendant on 15/10/96 it ruled then that the matter would resume for hearing on 22nd, 23rd and 25th October 1996, until conclusion of hearing of the case for the defence. When the court resumed on 22nd October 1996 it was confronted with a motion for a stay of proceedings to enable the defendant/applicant apply to the Court of Appeal in appeal against the ruling of the court which refused the motion for a stay of proceeding just taken and opposed by the plaintiff. The trial court refused, it however adjourned hearing to the next day and to 25/10/96 for defence and for judgment.

On 25/10/96 the trial court proceeded in the absence of the appellant to deliver judgment on the unchallenged evidence of the plaintiff. The defendant was dissatisfied with the judgment of Isuama. J., in the suit. He has filed this appeal on seven grounds. In the appeal, the appellant asked to abandon grounds 2 and 3 earlier filed, and replaced them with four other grounds 4, 5, 6 and 7. The appellant argued grounds four which he formulated and submitted three issues, namely:

“(1) Whether the trial judge was right when he on 25th October 1996 continued with the proceedings after he became aware that an application for a stay of proceedings was pending at the Court of Appeal.

(2) Whether the trial judge was right when he heard and determined the suit without the appellants counter claim.

(3) Whether in all the circumstances of the case the defendant was given a fair hearing in the suit.”

In the respondent’s brief filed on 7/4/2000 he adopted the appellant’s issue 2, and rephrased the issues of the appellant’s briefs of (1) and (3) in this manner:

“(1) Whether there was any basis for the trial Judge to have stayed the delivery of his judgment which was made on 25th October 1996.

(3) Whether the trial Judge was right when he held that the appellant was given ample opportunity to be heard but it refused or neglected to be heard.”

When the appellant received the respondent’s brief with issues as above, the appellant filed a reply brief and submitted thus; “that contrary to the view expressed by the respondent in his brief the issue of the counter-claim is part of the proceedings in the court below, it can therefore be properly argued that it arose in the said proceedings even if the learned trial judge did not refer to the issue of counter-claim in his judgment. Therefore the appellant submitted that his issue was properly before the court and competent. Appellant referred to Section 16 of the court of Appeal Act, which empowers the court to do what the court could not do by rehearing of same. He cited JADESIMI v. OKOTIE EBOH (1989) 1 NWLR (PT.16) page 264 at 274 para. C-D. In reply to the respondents issue one, it is the appellant’s submission that an application for a stay of proceeding when properly made can stay delivery of a judgment of the court. He urged the court to allow the appeal.

In further reply in issue 3 in the appellants reply brief, the appellant submits that he was not given ample opportunities to conclude his case.”

In this appeal, there is little difference in the three issues formulated by the appellant, and his reply and issues raised in the respondents brief. It is possible to see in issues one and three of the respondent; words which make them different from the appellant’s issues for determination of the appeal and may question the status of the respondent to raise what appear to be different issue when the respondent has not filed any cross appeal. A proper consideration of the said issue one and three will show that the words only amount to alternative view formulated on the grounds of appeal of the appellant, not a different issue and the issue properly derive as in the appellants brief from the ground of appeal filed by the appellant. I will therefore treat each issue of the appellant and of respondent together in one write up. I start with issue 2 of the appellant: “Whether the trial judge was right when he heard and determined the suit without the appellant’s counter-claim.” The respondent has submitted and asked whether the counter-claims as struck out on 27/1/95 by Kalunta, J., in the first instance and secondly by Isuama, J., formed part of judgment of the court below of 25/12/96. Did the counter-claim in substance form part of the proceeding in the court below before the judgment of 25/10/96? The respondent has submitted that the counter-claim does not form part of the judgment of the court below which was delivered on 25/10/96. Except to the extent that the application to relist the counter claim was refused and dismissed by Isuama, J., in his ruling on 31/7/96 and the appellant had previously appealed the interlocutory ruling to the court of appeal. The issue of the counter claim does not from part of the judgment of the court below delivered on 25/10/96. The issue of counter claim did not feature in the judgment of the court. It is not determined in the judgment of 25/10/96, and it is not a Subject of appeal in that ruling of the court.

It is trite law that grounds of appeal must derive from the matters contested on which the trial court has made decision in the judgment appealed against. Parties will not be allowed to argue any issue not covered in the judgment. See MOMODU v. MOMODU (1991) 1 NWLR (Pt.169) 608. The court of Appeal can entertain only issues arising from the ground of appeal if the ground of appeal can be traced to the pleadings. The Court of Appeal can entertain only issues arising from the ground of appeal if the ground of appeal can be traced to the pleadings of the parties in the court below and the issues on which the parties have joined issues on which the court below has ruled in the judgment appealed against. See CHIEF BALOGUN v. MOSES ADEJOBI & ORS (1995) 2 NWLR (Pt.376) p.131.

Speaking in a similar, the Apex court has said no party would be allowed to raise an issue not arising from the judgment of the court below. In the instant appeal on issue 2 of the appellant, the issue of counter claim did not arise from the judgment of court below; the parties did not join issues on the contents of the counter claim. To include the issue of counter claim is to raise a different issue on appeal from the issue before the court; besides the court below having dismissed the application to relist the counter claim the trial judge Isuanta. J., ceased to have jurisdiction on the issue of counter claim in the proceedings, as the appellant has lodged on appeal on the interlocutory order made by Isuama, J., on 31/7/96. The said appeal the record shows was filed in the court of appeal on 12/8/96. This shows that is the time the judgment of the lower court was delivered on 25/7/96, the matter of the counter claim was certainly not before the lower court. In answer therefore to the question whether the lower court was right when it heard and determined the suit without the appellant’s counter claim. I respond that the trial court was right since the counter claim was not before the trial court. I resolve the said 2 in favour of the respondent against the appellant.

Issue (1) asks “whether the trial judge was right when on 25th October 1996, he continued with the proceedings after he became aware that an application for stay of proceedings was pending at the court of appeal.”

Before proceeding with the answer to the first issue, I wish here to state the general rule about the attitude of the court to a pending application. In the case of ADEYEMI v. Y.R.S. IKE OLUWA & SONS LTD (1993) 8 NWLR (PT. 309) 27. The Supreme Court frowned and disapproved of the continuation of or dismissal on determination of suit when there is pending an application in its court or in the Court of Appeal or Court of superior jurisdiction. See RE JAJA (1995)2 NWLR (PT.375) 65. See also MOHAMMED v. OLAWUNWI (1993) 1 NWLR (PT.287) 254. It is generally the duty of the court to treat; and to take cognizance of all pending application. See ADEOYE ADEJOBI TRADING STORES LTD v. AINA (1986) 3 NWLR (Pt.29) 506, (1986) 5 CA (PT.1) 233.  Where in a trial court an application for a stay of proceeding is made, the trial court may require the applicant to satisfy the court that the application deserve a sympathetic consideration of the court because an application for a stay of proceedings is an antithesis to the speedy hearing matter, it must therefore be shown that there is a compelling reason for the grant of the application. Before the court can allow the application, the applicant must show that there is a pending appeal; otherwise there is nothing to stay hearing in the court below for. The pending appeal must be valid and not frivolous. The application for a stay of proceedings being interlocutory must be such that it can or may finally dispose of the matter before the court below. See OBI EBOKA & 2 ORS. V. RAYMOND ESEDEBE & 2 ORS. (1993) 3 NWLR (Pt.384) 486. In this application, the reason given by the appellant, see page 7 at 4.13 of the appellant’s brief, where appellant wrote: “In view of this development the defendant filed a motion for a stay of proceedings in the suit on 17/10/96. Pending the hearing of the appeal filed against the ruling of the trial court judge on 31/7/96.” It is evident from the above that the reason given by the appellant for filing an application for a stay of proceedings is to delay for his convenience the continuation of the proceedings before Isuama J. There is nothing inevitable about the application for a stay of proceedings, it was intended to hold and stop proceedings when from the ruling of the court the appellant had adequate warning and information that the court would proceed to judgment in the suit. A stay of the proceedings in the circumstance would clearly be an antithesis to the speedy hearing of the case; for the personal whims and caprices of the appellant in the court below. Such application can surely not get a sympathetic support of the court. I have refrained from commenting on the validity of the pending appeal filed in the court below on 31/7/96. Suffice it to say it appears to be an interlocutory application. It is not in my view a viable reason on which an application for a stay of proceedings in the court below may depend on; and the application in the stay is not intended to and cannot finally determine the suit. In the event it seems to me that such an application is not such that the court may exercise a judicious or even judicial exercise of discretion to allow. The court below was right to proceed despite the application. I resolve the issue against the appellant in favour of the Respondent.

The third issue is “whether in all the circumstance of this case the appeal as it occurred in the court below, and as reflected in the record of proceedings is that this matter the subject of appeal appeared to have started before the Hon. Justice Kalunta, who because of his transfer discontinued with the case. Justice Isauma took over the case and proceeded with hearing of suit filed three years earlier in June 1993. Hearing commenced before Isauma, J., 30/9/96. The 1st appellant asked for adjournment to produce some documents, the suit was adorned to 14/10/96. Prior to that date on 1/10/96 Isuama, J., became part of the newly created Ebonyi State. On 14/10/96, the defendant/appellant asked for an adjournment in order to cross-examine the 1st plaintiff witness. The defendant sent a letter seeking adjournment on 15/10/96, but the trial judge continued with the hearing of other plaintiff witnesses. The trial judge announced that he would conclude the case because his Lordship had then been made the Chief Judge Ebonyi State. He expressed a desire to proceed and conclude the case before he was due to take over on the given date at Ebonyi, at the end of the month.

As recorded in the appellant’s brief the file of the proceeding in the court below could not be found; such information about the suit in the court below is as copied from the file of the appellant. In the appellants brief the recorded as follows: “At the end of proceedings on 15/10/96, the trial judge adjourned the matter for three straight days namely 22nd, 23rd and 25th October 1996. The judge declared in open court and to the hearing of all present he has to deliver judgment in the matter on 25/10/96 whatever happened.” Appellant went further, “in view of this development defendant filed a motion for stay of proceedings in the suit on 17/10/96 pending the hearing of the appeal filed in the Court of Appeal on 12/8/96 against the ruling of the judge on 31/7/96.”

It is pertinent to observe that prior to 31/7/96, the appellant had filed an application to remove the case from the court presided over by Kalunta J., the trial judge made a ruling on 31/7/96, and struck out the counter claim of the appellant in that court. However other incidents occurred and kaluma, J., was moved to another division of the court totally unconnected with the defendant’s application to transfer the case. The defendant filed an application when Isuama, J., took over the case asking for the counter claim to be relisted. Isuama, J., refused and dismissed the application. The subsequent application to the court of Appeal, even the refusal by Isuama to stay the proceedings on 17/10/96 is founded on the appeal on the interlocutory order made on 31/7/96. The process for that appeal required in the court of Appeal only the exhibition of an order made in the court below before filing of the appeal. Now when the trial judge Isuama refused the defendant’s application for a stay proceeding on 17/10/96 he allowed three days to the defendant to prepare his defence; 22nd, 23rd and 25th October 1996. Can it be that the defendant was not given sufficient notice to prepare his defence. Is it correct to say that the defendant was not given a fair hearing? Or an opportunity to air his defence and hearing.

In OTAPO & ORS. v. SUMONU & ORS (1982) (Pt.58) 587; (1987) 5 SCNJ 51 the Supreme Court per Obasaki, JSC ruled that fair hearing can be said to occur when all the parties to a dispute in court are given a hearing or an opportunity to be heard. See ALADETOYINBO v. ADEWUMI (1990) 6 NWLR (PT.154) p.98, 100 B-C.

In the instant appeal the defendant/appellant even by his own admission has done everything to avoid proceeding with the case before Isuama, J. He filed an application for a stay of proceedings to serve his own purpose thereon abused the process of the court. He refused to cross-examine the plaintiff’s witnesses. He asked for adjournment at will. He was given 3 days by the Court to present his defence but he failed and refused to appear in court. The defendant had ample opportunity to present his defence given by the court, he refused to use the opportunity, and his complaint of denial of fair hearing has no basis. The issue fails, it is resolved against the appellant, in favour of the Respondent and the appeal is dismissed.

There will be costs of N10,000.00 against the appellant.

Other Citations: (2006)LCN/2048(CA)