Alhaji Ikira Aliyu Bilbis V. Attorney-general, Zamfara State & Ors (2003)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an interlocutory appeal against the ruling of Mika’ilu, J., (as he then was) of the Zamfara State High Court of Justice delivered on 23/5/2002. In the substantive suit in the court below, the appellant herein as the plaintiff commenced an action against the respondents in this appeal who were the defendants by writ of summons dated 12/7/2001 and claimed the following reliefs:

”Declaration

1. That the recommendation for the dismissal of the plaintiff as the Executive Chairman of Tsafe Local Government Council to the Zamfara State Government by the Zamfara State House of Assembly following the report of the House Committee on Local Government and Chieftaincy Affairs on the investigation of the financial misappropriation by the suspended Chairman Tsafe Local Government, is illegal, unlawful and unconstitutional.
2. That the approval of the recommendations for the dismissal of the plaintiff by the Governor of Zamfara State and the eventual removal of the plaintiff, is illegal, unlawful and unconstitutional same having been based on an illegal recommendation of the house.
3. That the report of the Committee on Local Government and Chieftaincy Affairs on the investigation of the financial misappropriation by the suspended Chairman Tsafe Local Government upon which the 2nd defendant based its recommendation for the dismissal of the plaintiff is devoid of any fairness by reason of bias on the part of the 3rd – 5th defendants who alleged that the plaintiff had offered them bribe which they collected.
4. That the 3rd – 5th defendants were incompetent to sit and or continue to sit as members of the House Committee on Local Government and or chieftaincy affairs for the purposes of investigation or continuing to investigate the alleged financial misappropriation by the plaintiff by reason of the allegations of bribery and corruption against the plaintiff by the 3rd – 5th defendants which rendered them subceptible to investigations along with the plaintiff and thereby rendered them incompetent to fairly justly carry out or continue to carry out any investigation concerning the allegations made against the plaintiff and give unbiased report to the 2nd defendant capable of being relied on by reason of bias.
5. That the alleged irregular withdrawal of money by the plaintiff as Executive Chairman of Tsafe Local Government from the Council’s account maintained at United Bank for Africa simpliciter in the absence of the signatories of the accounts who deliberately, wilfully and knowingly abandoned their duty posts without handing over their respective offices, and fully aware that their absence would bring to a near total collapse of the administration of the Local Government and without any criminal intention does not render the plaintiff criminally liable.
6. That the alleged irregular withdrawals by the plaintiff if done was the most convenient means of keeping the wheels of governance of the Local Government from been grounded by their calculated, deliberate and wilful action by the signatories who abandoned their duty post without making arrangements for the continuity of the functions of the Local Government.
7. An order setting aside the purported dismissal of Alhaji Ikira Aliyu Bilbis, as the Chairman of Tsafe Local Government.
8. A declaration that the plaintiff is still the elected Chairman of Tsafe Local Government.
9. An order of perpetual injunction, restraining the 1st and 2nd defendants from holding out and/or parading the 6th defendant as the Chairman of Tsafe Local Government.
10. An order of perpetual injunction restraining the 6th defendant from carrying on the duties and/or functions of the Chairman of the Tsafe Local Government or in any way operating as the said Chairman.”

Pleadings were duly filed and exchanged between the parties and trial commenced with the appellant closing his case after calling six witnesses. However, the respondents as defendants who opened their case on 3/4/2002 had their case closed by the court within three weeks by the court in its ruling dated the 29/4/2002, before concluding their defence. Dissatisfied with the ruling dated 29/4/2002, the respondents appealed against the ruling and filed a motion on notice dated 8/5/2002 filed the same date, praying the Honourable Court for the following orders:

“1. AN ORDER staying further proceedings in substantive suit No. ZMS/GS/34/2001 pending the hearing and determination of the applicants/defendants appeal No. ZMS/CA/K/5/2001 to the Court of Appeal, Kaduna against the ruling of the High Court Gusau delivered on the 29th April, 2002.

And such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

The motion was supported by a five paragraph affidavit deposed to by one Musa Abdullahi of Sabon Fegi Area, Gusau, a Litigation Clerk in the Attorney-General’s Chambers and read as follows:

“2. That by virute of my position aforesaid, I am conversant with the facts stated therein.

3. That I have authority of my employers and defendants/applicants to depose to this affidavit.
4. That on the 8th day of May, 2002 at about the hours of 12.30 p.m., I was informed by Alh. Ahmad Bello Mahmud, the Attorney-General of Zamfara State in his office and in the course of my official duties and which information I verily believe as follows:

(a) That the respondent had filed suit No. ZMS/GUS/34/2001 against the applicants herein.

(b) That the respondent had opened his case and closed same on 12/11/2001 and 19/4/2002, thereafter, the

applicants opened their defence on 3rd April, 2002.

(c) That upon the oral application of the respondent, the court rejected the applicants plea for last adjournment to close their case by calling their last witness (the 3rd defendant in the suit) and tender vital documents in their defence.

(d) That the court consequently ordered the closure of the defence and the applicants case on 29/4/2002.

(e) That the applicants being dissatisfied with this ruling appealed against it before the Court of Appeal, Kaduna on 7th May, 2002; the notice and grounds of appeal and receipt for payment of the notice of appeal in appeal No. ZMS/CA/K/5/2001 are exhibited herewith and marked A and B.

(f) That the ground of appeal alleges error in law bordering on a constitutional denial of right to fair hearing to the applicants/appellants.

(g) That the applicants are determined to prosecute the appeal with diligence.

(h) That the appeal contains substantial and trivial issues of constitutional and fundamental importance to be determined by the appellate court.

(i) That it is most necessary to stay proceedings in suit No. ZMS/GS/34/2001 pending the hearing of the said appeal.

(j) That refusing this application will greatly prejudice the applicants as it will render the successful outcome of the appeal nugatory as well as render the prosecution of the appeal unnecessary and ineffective.

(k) That the respondent will not be prejudiced by the granting of this motion.

(1) That the applicants stand to suffer greater inconvenience especially in the breach of their constitutional right to fair hearing and denial of justice.

5. That I swear to this affidavit in good faith to the best of my knowledge, information and belief pursuant to the Oaths Act as amended.”

A six-paragraph counter-affidavit deposed to by one Aminu Adamu of Tudun Wada Label Gusau, Litigation Secretary of Adamu Umar & Co. of counsel to the respondent in motion No. ZMS/GS/M99/2002 read as follows:

“2. That by virtue of my position aforesaid, I am quite conversant with the facts of this case.

3. That I have the oral authority of both my employers and Barrister Musa Labaran of counsel to the respondent to depose to this affidavit.
4. That I have been informed by Barrister Musa Labaran of counsel in the office, during further consultations, with Adamu Umar on 9/5/2002, at 3 p.m. and I verily believe the following information:

(a) That the affidavit in support of the motion is very much economical about the truth in relation to the

facts that led to the closure of the defence case.

(b) That the Attorney-General’s Chambers representing the defendant/applicants were responsible for most of the adjournment, when the plaintiff was proving his case.

(c) That several adjournments were granted at the instance of applicant’s counsel to put their witnesses but they refused to bring them.

(d) That the witness 3rd defendant was fully aware of the case against him and is resident in Gusau but chose to stay away from the proceedings until he was summoned on 23/4/2002.

(e) That even when he came and the court was willing and ready to take him, he was nowhere to be found as he chose to abandon the court without the least courtesy of seeking the leave of the court to so do inspite of being summoned to do so.

(f) That though the 3rd defendant knew when the case is adjourned to, he opted/elected to stay away in Sokoto out of the jurisdiction of the Honourable Court and over 200 kilometres away from the courtroom. Attached and marked as exhibit ‘A’ is the affidavit of the 3rd defendant/applicant.

(g) That the defendant were given ample opportunity to bring their witnesses which they summoned and

deliberately elected not to put them in the witness booth to testify. Attached are copies of proof of service in respect of persons summoned by the defendant marked as exhibit ‘B-B9’.

(h) That on the day the case for the defendant was closed, the 3rd defendant/applicant was comfortably seated in his office attending to some people. Attached is the counter-affidavit in motion No. ZMS/GS/M94/2002, and marked as exhibit ‘C’.

(i) That this application is malafide and borne out of total absence of good faith and good cause.

(j) That neither the defendants, particularly 3rd defendant nor the counsel have any sincere desire to lead evidence as the withdrawal of motion No. ZMS/GS/M94/2002, seeking leave to re-open the defence clearly indicates.

5. That the defendants, particularly the 3rd defendant/applicant had through their counsel clearly shown that they were not interested in continuing the defence in the action by withdrawing an earlier motion which might have provided them with another opportunity to exercise their allegedly infringed right.

(k) That the defendants/applicants have nothing to lose since even if the suit No. ZMS/GS/34/2001 is determined as their right of appeal is not extinguished.

(i) That the grant of this application will be over-indulging the applicants who have by withdrawing motion No. ZMS/GS/M94/2002 have elected to postpone the exercise of their right to be heard by the Honourable Court to a later uncertain date to the detriment of the plaintiff.

(m) That the applicants have treated the orders of the Honourable Court with a worrisome levity.

(n) That granting this application will amongst others:

i.Amount to greater hardship.

ii.Frustrate the court in dispensing with justice timeously.

iii.Accord the applicants their desired goal of truncating the mandate of the respondent.

iv.Denying the respondents the only opportunity to clear his name, reputation integrity, and goodwill against the smear of the applicants within reasonable time.

v.Further denying the applicant decent, humane and civilized treatment from his last hope, the court.

vi.That the applicants will not be prejudiced/suffer inconvenience since the suit is in relations to their official legislative functions and has nothing to do with their personal capacity(ies ).

6. That I swear to this affidavit in good faith and in accordance with Oath Act, 1990.”

The motion was argued by counsel to the parties on the 13th of May, 2002.

In his ruling delivered on 23/5/2002 at pages 175 – 179, of the record, the learned trial Judge, inter alia held:

“Undoubtedly, a stay of proceedings will not be granted where the appeal is frivolous and sham, but it will be granted where it would be in just or inequitable to refuse it as held in Minister for W/H v. Tomas (2002) 2 NWLR (Pt. 752) 740. But in our case the interlocutory appeal is on fundamental question of fair hearing or which is not only common law right. Its breach vitiates proceedings and render the same null and void as held in Alhaji v. Ma’ji (2002) 4 NWLR (Pt. 756) 46, (2002) FWLR (Pt. 756) 46, and cannot therefore be treated as frivolous and sham in consideration of the circumstances of this case which involves closing the case of party before the party closed his case. The purpose of a stay would be to do substantial justice so that at the end, whatever decision is reached by the appellate court will not be rendered nugatory. Refer to United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) 195. I do agree with the learned counsel for the respondent that the more fact that ground of appeal is labelled ‘error in law’ does not make it an appeal on ground of law as shown in Ade Coker v. U.B.A. (1997) 2 NWLR (Pt. 490) 64, (1997) 2 SCNJ 130 at 141 (supra). However, the averments raised by the learned counsel for the respondent in this regard are averment most appropriately to be heard and determined by the Court of Appeal. In our case, the case for the defence of the applicant was closed when they were not ready for the close and wanted to bring more evidence. The issue involved is crucial and critical to the case of the applicants. If the proceedings are not stayed and the appeal succeeds, then the appeal would be rendered nugatory. Consequently, the application is hereby granted.”

Dissatisfied with the ruling dated 23/5/2002, the appellant who was the respondent in the motion appealed to this court by a notice of appeal filed on 6/6/2002, containing three grounds of appeal.

The grounds of appeal without particulars read as follows:

“1. The trial Judge erred in law when he held that a ground of appeal of mixed law and fact does not require leave.

2. The trial Judge erred in law when he held that a document that was not duly certified as required by law was competent before him.
3. The trial Judge erred in law when he held that he was not competent to inquire into the competency of the respondent’s grounds of appeal.”

When the appeal came up for hearing on 30/10/2002, the appellant’s counsel, M. R. D. Labaran, Esq., who was in court, holding brief for Adamu Umar, Esq., adopted and relied on the appellant’s brief. Counsel to the respondents who was served on 8/10/2002, was absent but has filed the respondent’s brief. The appeal was deemed duly argued in accordance with Order 6 rule 9(5) of the rules of this court.

In the appellant’s brief, two issues were formulated for determination of this appeal as follows:

“1. Whether there is a competent appeal pending before the Court of Appeal and a competent notice of appeal upon which the trial Judge relied in reaching his decision.

2. Whether the trial court was incompetent to inquire into a ground of appeal in considering an application before it based on such ground of appeal.”

The respondent on the other hand in the respondent’s brief, formulated only one issue for determination which reads:

“Whether from the circumstances of this case, the trial Judge was right in reaching the decision to stay all

further proceedings in suit No. ZMS/34/2002.”

Arguing the appeal in the appellant’s brief, Musa Labaran, Esq., learned counsel for the appellant, submitted that the appeal is incompetent before this Honourable Court by reasons of failure to comply with the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria. He explained that the appeal is against the decision of the trial court refusing to grant an adjournment to the defendants/respondents to tender documents. Relying on the authority of Donatus v. The State (1990) 2 SCNJ 50, learned counsel for the appellant argued that adjournment is a matter within the discretion of the court and that the challenge against the refusal to grant an adjournment is a challenge against the exercise of a court’s discretion which is a ground of mixed law and fact, citing Ade Coker v. U.B.A. Plc. (1997) 2 NWLR (Pt. 490) 641, (1997) 2 SCNJ 130 at 141 in support of his argument. Learned counsel for the appellant said that an appeal does not lie as of right against the decision of a High Court of a State where same does not come under the provisions of section 241 of the 1999 Constitution of the Federal Republic of Nigeria. He further said that a ground of appeal challenging the exercise of the discretion of a court, being a ground of mixed law and facts, requires leave before same could be filed. It is further submitted by the counsel to the appellant that exhibits A and B upon which the trial Judge acted was an inadmissible piece of evidence by reason of non-compliance with section 111 of the Evidence Act.

The learned counsel for the appellant further argued that if the learned trial Judge had ignored exhibit A, there would have been nothing to rely upon. It is contended by the learned counsel for the appellant that the ruling of the trial Judge based on the consideration and admission of the notice of appeal cannot stand as courts are to act on admissible evidence only and urged the court to resolve issue No.1 in favour of the appellant.

On issue No.2, learned counsel for the appellant submitted that it is absolutely within the province and powers of the trial court to inquire into the grounds of appeal with the view to determine whether such a notice of appeal and ground is capable for legally sustaining the order of stay of proceedings sought by the defendants/respondents, citing the case Pinacle Commercial Bank Ltd. & Anor. v. Steel Bell (Nig.) Ltd. (2002) FWLR 1197. Learned counsel for the appellant cited several authorities in support of his appeal and urged the court to allow the appeal, which in his opinion, has merits.

Responding, A. I. Bukkuyum, Director of Civil Litigation, Zamfara State for the respondents in the respondents’ brief commence his submission by referring to page 135 of the record containing the ruling of the trial court that closed the case of the respondents as defendants which led to the ruling, the subject matter of this appeal. He referred to the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, (1992) 11-12 SCNJ (Pt. 1)44-45 and submitted that the essence and reality of the respondents’ complaint as inferable from the ground and particulars of appeal questioned the violation of their constitutional right to fair hearing not because of the Judge’s refusal to adjourn the case but by refusing to allow the respondents to complete their defence simpliciter.

Learned counsel for the respondents pointed out that, that being the case, he urged this court to hold that the respondents’ ground of appeal contains question of law alone without the necessity of obtaining leave to file same. Counsel submitted that the learned trial Judge, having considered the respondents’ ground rightly decided to stay the proceedings in the case and urged this court to so hold. He said that the appellant did not challenge the averment in support of the motion in paragraphs 4(e), (f) and (h) of their affidavit in support of the motion. That also worth noting in the circumstances of this case, is the period of four months between 12th November, 2001 and 19th March, 2002, within which the lone appellant opened and closed his case. This contrasts with a period of three weeks between 3rd April, 2002 to 29th April, 2002 within which the six respondents opened theirs only to be rushed and forced into closing it inconclusively without completing their defence, hence, the complaint in the appeal. Learned counsel for the respondents finally submitted that the appeal lacks merit and urged the court to dismiss the appeal.

Having examined the issues formulated by the parties in this appeal, I find the respondents’ sole issue more appropriate in the determination of this appeal as the whole purpose of the appellant’s complaint is the grant of the stay of proceedings by the learned trial Judge.

It is interesting to observe that although the appellant in his three grounds of appeal did not complain directly against the grant of stay of proceedings, yet, in his same notice of appeal the reliefs sought by appellant is an order setting aside the ruling of the trial Judge given on 23/5/2002 which is the order of stay of proceedings. I therefore adopt the respondents’ only issue in determining this appeal. I must state even for the purpose of reminding myself that this is an interlocutory appeal. For that reason, I have to exercise restraint in the determination of the appeal in order to avoid delving into either the substantive case or the pending interlocutory appeal.

From the sole issue in this appeal, what I have to determine in this appeal is whether the lower court was right in granting the respondents’ application, having regard to the circumstances in the present case.

An application for stay of proceeds pending appeal is an exercise of discretion and may be granted where an applicant has exercised his constitutional right of appeal so that the applicants’ right to appeal is not stultified. See the case Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266 at 274. Another relevant circumstance under which an application for stay of proceedings pending appeal could be granted was stated by Iguh, J.S.C. in Nalsa and Team Associates v. N.N.P.C. (1996) 3 NWLR (Pt. 439) 621 at 632 where he said:

“The point cannot be over emphasized that where, owing to a pending relevant appeal, the hearing of a case could work injustice to a party or constitute an exercise in futility, prudence, if not common sense, dictates that the proper course of action open to the court would be to stay or adjourn the case pending the determination of such an appeal with liberty to either side to apply for the hearing of the case to be resumed. See Joseph Shekoni v. Chief Ogunyemi Ojoko (1954) 14 WACA 504.”

In order to consider an application for stay of proceedings, there should be a pending appeal. See Olawunmi & Others v. Alh. Muhammed & Ors. (1991) 4 NWLR (Pt. 186) 516; The Provost Alvan Ikoku, College of Education, Owerri & Ors. v. Amuneke (1991) 9 NWLR (Pt. 213) 49. The pending appeal must be valid.

It is also one of the conditions for the grant of an application for a stay of proceedings, that the pending appeal must be arguable and this should be borne out by the ground or grounds of appeal. The applicant in an application for a stay of proceedings, has no duty to prove at that stage that the appeal will succeed. Once he shows that the appeal is arguable and that there is chance of success, an application for stay should be granted. See General Oil Ltd. v. Oduntan & Ors. (1990) 7 NWLR (Pt. 163) 423; Carribean Trading & Fidelity Corporation v. NNPC (1991) 5 NWLR (Pt. 197) 352; The State v. Ajayi & Ors. (1996) 1 NWLR (Pt. 423) 169.

In the instant appeal, having examined the affidavit in support of the application with the two annextures, A and B, the notice and ground of appeal and the filing fees receipt in respect of the appeal respectively as well as the counter-affidavit filed in opposition, I am of the view that the respondents as applicants have established a prima facie case for the grant of the application, going by the main guidelines for the grant of such an application. The learned trial Judge, in fact considered such guidelines in his ruling, relevant portion of which is herein reproduced before granting the application.

I agree with the learned trial Judge that there is a valid appeal and the ground of appeal is arguable and not frivolous. I therefore resolved the only issue for determination in favour of the respondents against the appellant, in that the learned trial Judge was right in granting the application for stay of proceedings.

In the result, this appeal fails and is hereby dismissed.

I hereby affirmed the ruling of the learned trial Judge, Mika’ilu, J., (as he then was) delivered on 23/5/2002. I award costs assessed at N5,000.00 to the respondents against the appellant.

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Other Citations: (2003)LCN/1334(CA)