Chief Alexander Owo & Ors. V. Most Rev. Dr. J.a. Adetiloye & Ors. (1998)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This was an application brought on behalf of the present applicants who were the plaintiffs at the trial court, and had obtained an ex-parte injunction before Akubuilo, J. of Anambra State High Court sitting at Oji River, against the respondents who were the defendants. The defendants being dissatisfied with the said order of ex-parte injunction, appealed to this court. Following closely after the filing of the notice and grounds of appeal, the appellants also filed in this court an application seeking for six reliefs, Nos. 4 and 5 of which read as follows:-
“4. An order suspending and/or staying the execution of the ex-parte order of injunction dated 19th May, 1997 made by P.C. Akubuilo J. at the High Court, Oji River pending the determination of this appeal.
- An order staying any and further proceedings in the substantive suit pending the determination of this appeal” (Coram Achike, Ejiwunmi & Ubaezonu, J.J.C.A.)
However, just as this court was about to give its ruling on the above application, the learned counsel for the plaintiffs/respondents rushed in with another application filed by himself, which he said had the potential of disposing of the entire appeal. This application should really have been a preliminary objection. The said application read as follows:-
“an order striking out the notice of appeal dated 21st May, 1997 and filed on 22nd on the ground that the said appeal is premature and incompetent being based on an interim order which would lapse on a certain date or upon the happening of a certain event, and that the application and the appeal amount to abuse of court process. ”
The court graciously allowed him to move his motion, the sum total of which was that under s. 15(1) of the Court of Appeal Act, 1976 any order made ex-parte could not be appealed against. His opponents countered by referring to section 220(1)(b) and (g) (ii) of the constitution of the Federal Republic of Nigeria, 1979, which made provisions for appeals from the High Court to Court of Appeal to be as of right in the following cases, inter alia,
“220(1)(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings;
(g)(ii) where an injunction or the appointment of a receiver is granted or refused.
This court brought the argument of the defendants/applicants/respondents to the effect that s.15(1) of the Court of Appeal Act, 1976 was superceded by S.220(1)(b) and (g) (ii) of the 1979 Constitution of the federal republic. They held therefore that the appeal of the defendants/appellants/respondents to this court was competent and not premature. They therefore dismissed the plaintiffs/respondents/ applicants application asking them to strike out respondents notice of appeal against the interlocutory order of the lower court for injunction made ex-parte with costs of N1,000.00 to the respondents.
The applicant was dissatisfied with the above ruling of this court and so appealed to the Supreme Court on 15/7/97. He did not and there; on the same 15th July, 1997, he filed another application to this court, praying inter alia for:-
“(a) An ORDER of stay of proceedings in this appeal, pending the hearing and determination of the appeal lodged by the applicant to the Supreme Court of Nigeria against the ruling of this honourable court delivered on the 18th June, 1997. The said application was supported by a ten paragraph affidavit, to which was exhibited a copy of their notice and grounds of appeal marked Exbt.. ‘A’, while the ruling appealed against was exhibited to a further Affidavit as Exbt. ‘Z.”’
At the oral hearing of this application on 3rd March, 1998 learned counsel were given opportunity to highlight and emphasize salient points in their cases, and they did so as follows:-
Chief Enechi Onyia, SAN (with whom was E.C. Igwe) for the Appellants/Applicants pointed out that the ruling appealed against was in respect of jurisdiction and so was final. He then moved his motion supported by his 10-paragraph affidavit. He further pointed out that their main purpose in bringing this application was to preserve the’ ‘status quo” pending the determination of the appeal. He said it was the duty of this court to be conscious of the consequences of its refusal to grant this order. He then cited the case of Shodeinde v. Ahmadiya Movement in Islam (1980) 1-2 S.C. 163 at 175. He then pointed to the fact that there was no counter-affidavit whatsoever, and therefore urged the court to accept their facts as valid. He then submitted that refusing their application would amount to denying them right of appeal. He said the right of an appellant to appeal should not be impeded. He then cited the cases of Wilson v. Church No. 2 (1879) 12 Ch. Diy. 454 & 459. Also Vaswani Trading Co. v. Salvalakh (1972) 1 All NLR (Pt. 2) 483, John A. Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt.88) 257 at 268. The complete citation was to come. He finally subrnitted that there was special circumstances for the grant of this application and so urged the court to grant his application. Replying to the above arguments, it was submitted on behalf of the respondents by their learned counsel Chief O. Ugolo (with whom was Mrs. C.T. Nwangene) as follows:-
He first observed that the notice and grounds of appeal filed as Exbt. ‘A’ to this application was only a “proposed notice and grounds of appeal. They must show that they have actually filed a notice of appeal in this court’s registry. He cited the case of Asare and Ors v. Lemomu (1994) 7 NWLR (Pt. 356) 284 at 290 – 291.
He next pointed to the fact that this was an interlocutory appeal, and nota final ruling. The application should therefore have been filed within l4 days, under s.27 (2) (a) of the Supreme Court Act (Cap.424) Laws of the Federation 1990. At this stage Ugolo asked for an adjournment for him to reply more fully, and file a counter-affidavit if necessary. This was not opposed, and so the application was adjourned to 11/5/98 for conclusion of arguments for respondents.
On resumption of arguments on 11/5/98 Chief O. Ugolo (with whom was Mrs. C.T. Nwangene) for the respondent returned to the case of Osode v. Momodu (supra) which they cited on 3/3/98 and concluded that submission by saying that when a notice of appeal is filed outside the time prescribed by law it was incompetent and incurably defective. Therefore a stay of proceeding could not be predicated on such a notice of appeal. He then pointed to the fact that the ruling of this court being appealed against was delivered on 18/6/97 and the notice of appeal filed on 15/7/97, nearly one month after the said ruling. He then submitted that by section 27(2) (a) of the Supreme Court Act (Cap.424) the applicant had 14 days within which to file an appeal against an interlocutory decision. Regarding contention of the learned SAN for applicants that the decision of this court on 18/6/97 was a final decision, he submitted that the said decision was not final but interlocutory. He then argued that in order to determine whether an order was interlocutory or final one must consider (1) whether the order made finally disposed of the rights of the parties in the claim. If it did then the order was a final order.
(2) But if the court proceeded to do something else, it would mean that the decision was interlocutory. The case of Akinsanya v. U.B.A. Ltd (1986) 4 NWLR (Pt.35) 273 at 291-294 and 296, was cited in support. Also Ocean Steamship (Nig.) Ltd. v. Shotiminu (1987) 4 NWLR (Pt. 67) 996 at 1005 A-G.
He then pointed out that in the instant case the main case between the parties was still pending in the trial court. They did not argue here that this court below had no jurisdiction. It was therefore submitted that this court’s decision of 18/6/97 was an interlocutory decision. Therefore the notice of appeal filed on 15/7/97 was incompetent, having been filed outside 14 days. If this court upholds this submission, then the applicants will have no right of appeal under s. 213(3) of the Constitution as amended by Decree No.3 of 1998. The court was therefore urged to dismiss this application for stay of proceedings because the notice of appeal was incompetent, and therefore there was no appeal in law. There was no rejoinder.
I have carefully considered the facts of this case as deposed to in the affidavit in support of the application as well as the legal arguments of learned counsel on both sides, and must say in the first instance that failure by the respondents to have filed a counter-affidavit in this application cannot be fatal to their case as the application was based purely on law, and the facts of the case were not also disputed.
Therefore I must say right away that there are at least five cogent reasons as follows why this application for “stay of proceedings” should fail.
In the first place, since the application was for
“Stay of proceedings in this appeal, pending the hearing and determination of the appeal lodged by the applicants to the Supreme Court of Nigeria ….”
It must first be established that there was an appeal actually filed or lodged with a higher court, i.e. either the Court of Appeal or the Supreme Court. In the instant case, there was no sufficient evidence to show that the appeal to the Supreme Court was actually pending, because only the notice of appeal filed on the same day as this application was exhibited as Exbt. ‘A’. The receipt for payment of the prescribed filing fee, and for compilation of records were not exhibited. However, since such receipt might have been left out by inadvertence, I shall resolve the doubt in my mind in favour of the applicant, and I shall proceed to consider the other factors. It is a cardinal principle of our law on Stay of proceeding or stay of execution for the applicant to satisfy the court that a valid and credible appeal was actually pending in an appeal court.
I now go to the question whether the decision of this court sought to be appealed against was a final decision or interlocutory. Applicants’ counsel said it was a final decision, while the respondents’ counsel said it was interlocutory. What does this court say? I say with due respect to the learned senior counsel for the applicants that our decision was certainly an interlocutory decision, and not final. The respondents herein had appealed to this court against an order of injunction, imposed on them ex-parte by the trial court. He than brought an application for stay of proceedings at the trial court pending the determination of the appeal then before us. We had not yet given a decision on that before the applicant herein rushed in with his own application, that the notice of appeal filed by the respondent was incompetent, invalid and void for contravening s.15(1) of the Court of Appeal Act, 1976 and should be struck out. This court gave a ruling on 18/6/97, that the respondents’ notice of appeal was not incompetent, premature or void, as the provision of the Court of Appeal Act, 1976 was superceded by s. 220(1)(g)(ii) of the Nigeria Constitution. 1979. But just as this court was getting ready to hear the application for stay of proceedings at the trial court, the applicant rushed in with his own application for another stay of proceedings in this court and now said that our decision of 18/6/97 was a final decision. I agree with the case of Akisanya v. U.B.A. Ltd (1986) 4 NWLR (Pt. 35) 273, cited by learned counsel for the respondent that the most important factor to consider, whether a decision was final or interlocutory, was to see whether the decision finally determined the rights of the parties in the suit. If the parties had to go home for good, then the decision was final, but if they had to return to the trial court to resume their trial or appeal, then the decision would be interlocutory. In the instant case, the fact that the applicant had to rush to this court soon after filing his appeal to ask for a stay of proceedings, clearly shows that our decision was interlocutory. Even after we have given our decision in the main appeal about the validity of ex-parte injunctions the parties will still have to go back to the trial court to resume their case about creation of a new Diocese for Oji River. So there was nothing final about our decision of 18/6/97. That being the case the appeal against the said decision should have been filed within 14days as provided by the Court of Appeal law and not within three months. That not having been done, this application is incompetent and must be refused. The appeal if already lodged should be struck out for the same reason, but since the appeal is pending at the Supreme Court, and no longer before us, it will be struck out there.
The third point to note is that it is not every and any judgment or ruling of a court that could be stayed, either by stay of execution or stay of proceedings only executory judgments or rulings can be stayed and not executed or purely declaratory judgments and ruling (see Akibu v. Oduntan (1991) 2 NWLR (Pt. 171) 1. In the instant case, the ruling sought to be stayed was purely declaratory, in that the court never ordered the applicant to do anything such as paying damages to respondent or vacating a house. All that was said was that the appeal of respondent against an ex parte injunction was not incompetent as section 15(1) of Court of Appeal Act, 1976 had been overriden by s. 220(1)(g) (ii) of the Constitution of the Federal Republic of Nigeria, 1979. How did the applicant want the court to stay such a declaration? With respect, such a declaratory ruling can only be reversed, and not stayed. Any attempt to stay it would only mean that we were reversing ourselves. Only the Supreme Court can reverse us, and the applicant is already there.
Finally, I must observe that an application for “stay of proceedings” as opposed to “stay of execution” is more appropriate in a trial court than in an appellate court where no evidence was being taken. The object of stay of proceedings, be it in a civil or criminal case is always to keep things “in status quo” at the trial court pending the determination of appeal at a higher court. See the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 et seq where Ogundare. J.S.C. G at p.202, said inter alia as follows:-
‘There may be cases where a wrongly rejected evidence may be all that 3 party relies on in support of its case and without which it would be futile for him to continue to contest his opponents’91 case. In such a case, I cannot see why he must be prevented from proceeding to test the correctness of the decision to exclude such evidence before proceeding with the trial ”
In the same case at p.205 Ogwucgbu, J.S.C. put the same principle succinctly as follows:-
“A vital piece of evidence which is crucial to the case of a party if wrongfully rejected would incapacitate such a party in proving or disproving his case.”
See also the case of State v. Ajayi (1996) 1 NWLR (Pi. 423) 169, where at p.182 paras. E – H, the Court of Appeal held inter alia as follows:-
“The principles to he considered whether to grant stay of proceedings or not have been laid down in so many decided cases starting from whether there is a case pending in the trial court to whether the decision in the appeal court will affect the pending case. But by far, the most important considerations are the following:-
(a) whether the complaint of the appellant in his interlocutory appeal can be conveniently taken together in an appeal against the final judgment if the case is determined in favour of respondent;
(b) the court has a discretion to grant a stay of proceeding when the applicant has reasonable grounds of appeal or if a refusal will render any success in the appeal nugatory: and
(c) where further hearing at the court below will work injustice, the court should grant a stay of proceedings.
Sodeinde v. The Registered Trustees, Ahmadiya Movement-in-Islam (1980) 1-2 S.C. 163; I.A.I.L Nig. Ltd. v. Chika Bros. Ltd.(l990) 1 NWLR (Pt.124) 70 at 80; Akilu v. Fawehinmi (No,2) (1989) 2 NWLR (Pt. 120) 122 at 165; Kigo (Nig.) Ltd v. Holman Bros. (Nig.) Ltd. (1980) 5-7 S.C. 60; Shekoni v. Ojoko (1954) 14 W.A.C.A 504 referred to) (P.182 paras. E-H)”In view of all that have been said above, it is my form view that this appeal has been a colossal waste of judicial time. The applicant had no reason whatsoever to have brought this application to this court, or even to have gone to the Supreme Court to lest a purely declaratory ruling on law. He could have waited till the end of the appeal, and if lost, he could then appeal to the Supreme Court, where he could raise his point of jurisdiction afresh. Jurisdiction can be raised at any stage of the proceedings even up to the Supreme Court. This application therefore lacked merit and is hereby dismissed with costs of N2,000.00 in favour of respondents.
Other Citations: (1997)LCN/0355(CA)
