Chief Great Ovedje Ogboru V. President, Court of Appeal & Anor. (2005)
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NGWUTA, J.C.A.
This is a ruling on an oral application by learned Counsel for the 2nd respondent, seeking an order to stay proceedings in the appeal. I think that it is expedient to trace the genesis of the oral application.
On the 3rd day of August, 2005, the High Court of Delta State, Asaba Judicial Division presided over by Hon. Justice Z. A. Smith granted the 2nd respondent leave to enforce his fundamental rights.
The court also restrained the 1st respondent from constituting a Governorship Election Petition Tribunal for Delta State to determine whether the applicant in the lower court was the person convicted on 28/9/95 on the case No. CR/81/95 by the Upper Area Court, Bwari as ordered by this court on 30th September, 2005, in election petition now reported as Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319.
On 18th October, 2005, learned Senior Counsel for the appellant moved the court for the following reliefs:
“(1) An order for extension of time within which the appellant/applicant can appeal against the order of Hon. Justice Z. A. Smith of Delta State High Court, Asaba, made on 3rd August, 2005, in suit No. A/44/2005/MI.
(2) An order deeming the notice of appeal already filed and served as being properly filed and served.
(3) An order granting a departure from the rules of this court by allowing the appellant/applicant to compile the record of appeal and treating the bundle of documents already compiled and filed in this court and marked exhibit B as the record of appeal in this case.
(4) An order accelerating the hearing of the substantive appeal by abridging the time within which the parties are to file their briefs of argument and setting the substantive appeal down for hearing.”
Learned Counsel who appeared for the 1st respondent did not oppose the application.
Learned Counsel for the 2nd respondent, however, opposed the 4th relief on the ground that the appeal is against the decision of the High Court and since it is not an electoral matter the practice direction issued by the Honourable President of the court is inapplicable. On 25/10/05, the court over-ruled learned Counsel for the 2nd respondent and granted all the 4 reliefs sought by the appellant, holding the view that the matter giving rise to the appeal pertains to electoral matter. The appeal was then set down for hearing on 24/11/05.
When the appeal came up for hearing on 24/11/05 learned Counsel for the 2nd respondent informed the court that he has appealed against the court’s ruling of 25/10/05 to the Supreme Court.
Learned Counsel said that the appeal had been entered in the Supreme Court. He referred to Order 8 rule 11 of the Supreme Court Rules and said that the subject matter of the appeal is before the Supreme Court and until the appeal is determined, this court should stay all proceedings relating thereto.
Learned Senior Counsel for the 1st respondent referred to the ruling of this court in 25/10/05 to the effect that the appeal is an election matter, stating that the said ruling is extant and valid. He referred to S. 246(3) of the Constitution of the Federal Republic of Nigeria, 1999 and said the ruling is final and not appealable to any court. He referred also to S. 246(1) of the Constitution and the case of Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116. He contended that any attempt to appeal the said ruling is a violation of the Constitution, adding that Order 8 of the Supreme Court Rules does not over-ride the provisions of the Constitution. Learned Senior Counsel emphasised that Order 8 rule 11 of the Supreme Court Rules applies only where there is a proper exercise of the right of appeal to the Supreme Court, but not otherwise. He argued that the application headed in this court cannot be transmitted to the Supreme Court for hearing and determination. He urged the court to order the parties to argue the appeal. He referred to Mohammed v. Husseni (1998) 14 NWLR (Pt. 584) 108 at 141 on the purport of Order 8 rule 11 of the Supreme Court Rules in relation to Order 1 rule 21 of the Court of Appeal Rules.
Learned Counsel argued that even if the 2nd respondent has a right to appeal, the issue being an interlocutory matter, can be taken with the main appeal. This saves the time of the court. He reminded the court that election matters are to be dealt with expeditiously and urged the court to proceed with the appeal.
Learned Senior Counsel for the appellant referred to S. 1 of the Constitution and said that every court is sworn to protect the Constitution. He cited S. 233(2)(e) and said there is no right of appeal to the Supreme Court in electoral matters except in the case of election to the office of the President and the Vice-President. He referred to S. 246(3) of the Constitution and submitted that the decision of this court in respect of the Governorship, National and State Assembly Elections is not appellable to any court, including the Supreme Court. He argued further that the 2nd respondent cannot appeal to the Supreme Court since this court has decided that the appeal pertains to election petition. He referred to the application for enforcement of fundamental right in the lower court and said that all the relevant rules and rulings of this court relating to the election petition were exhibited thereto and based on same, the court held that the substratum of the appeal is election. He referred to Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309. He urged the court to deny the oral application and proceed with the appeal.
In reply on points of law, the learned Counsel for the 2nd respondent urged the court to rely on Order 1 rule 21 of the Court of Appeal Rules and 0.8 r. 11 of the Supreme Court Rules as the rules applicable to his application.
This is an oral application urging the court to grant a stay of proceedings in the appeal on the ground that the appeal has been entered in the Supreme Court, that the Supreme Court is now seised of the subject matter and this court should stay all proceedings relating thereto.
Learned Counsel for the 2nd respondent invoked the provision of O. 8 r. 11 of the Supreme Court Rules, which provides thus:
Order 8 r. 11 “After an appeal has been entered and until it has been finally disposed of, the court shall be seised of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in this order, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.”
See Biocon Agrochemicals (Nig.) Ltd. v. Kudu Holding (Pty) (1996) 2 SCJN 212 at 219; (1996) 3 NWLR (Pt. 437) 373.
An application may be oral or written. However, 0.3 r. 3(1) of the Court of Appeal Rules 2002, provides that:
“Every application to the court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought.”
While an oral application is permissible depending on the facts and circumstances of the case, it is my humble view that the applicant should have complied with the provision of Order 3 rule 3(1) of the Court of Appeal Rules by bringing a motion on notice supported by affidavit stating the rule pursuant to which the application is brought and the grounds for the reliefs sought, more so in view of the fact that an order staying proceedings is punitive as it relates to the respondent. It retards the speedy hearing of the appeal. A party applying for the order must not only comply with the rules but must establish a compelling and inevitable circumstance before the order can be made. See Daily Times (Nig.) Plc. v. Magoro (1999) 7 NWLR (Pt. 612) 592; Caribbean Trading & Fidelity Corporation v. NNPC (1991) 6 NWLR (Pt. 197) 352. It is granted when a matter raises a special or peculiar problem. See Wema Bank Plc. v. Balogun & Anor. (1999) 7 NWLR (Pt.610) 242.
Now assuming but not conceding that the application is not in breach of Order 3 rule 3(1) of the Court of Appeal Rules and that on the peculiar facts of this case the application can be presented orally the applicant must satisfy two other requirements to secure the order herein sought:
(1) The applicant must satisfy the court that he has an undoubted right of appeal and
(2) That he has appealed.
See Kigo (Nig.) Ltd. v. Holman Bros (Nig.) & Anor. (1980) 5-7 SC 60. The applicant has shown that he has appealed to the Supreme Court but he has not shown that he has an undoubted right of appeal. The ruling of this court that the appeal brought before it pertains to election matter or petition is valid and subsisting. The order of Smith J. appealed against restrained the 1st respondent from constituting a panel to try an election petition against the 2nd respondent as ordered by the Court of Appeal. The appeal against the order is an electoral matter and under S. 246(i), (ii) & (iii) of the 1999 Constitution of the Federal Republic of Nigeria, there is no right of appeal against a decision of the Court of Appeal. I agree with the learned Counsel for the appellant and learned Counsel for the 1st respondent that the 2nd respondent’s/applicant’s appeal is a violation of the Constitution of the Federal Republic of Nigeria, 1999.
Apart from the failure of the 2nd respondent/applicant to satisfy the court that he has an undoubted right of appeal or a right of appeal for that matter against the ruling delivered by this court on 25/10/05, it has to be borne in mind that a stay of proceedings is at the discretion of the court. The court will not grant it where it will inflict greater hardship than it would avoid, the applicant’s right of appeal notwithstanding. Also the application will be refused where the appeal is frivolous. I am of the view that an appeal where there is no right of appeal is not only frivolous; it amounts to abuse of process of court. See Okorodudu v. Okoromadu (1977) 3 SC 21; Ikine v. Edjerode (2001) 92 LRCN 3288 at 3301; (2001) 18 NWLR (Pt.745) 446; Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 at 68l.
Being a discretionary remedy, the order cannot be granted where the applicant has not demonstrated that it is equitable and just to grant a stay of proceedings. See Akilu v. Chief Gani Fawehinmi (1989) 3 NWLR (Pt. 112) 685. Another crucial factor is the issue raised in the appeal by the 2nd respondent, that is the applicability vel non of the practice direction in electoral matters to the appeal or whether or not the appeal emanates from electoral matter.
This issue even if resolved in favour of the applicant will not dispose of the appeal. As argued by learned Counsel for the 1st respondent, the issue can conveniently be taken along with the appeal against the decision of the court in the appeal if that need arises. This will save time and expense. See Obi v. Elenwoke (1998) 6 NWLR (Pt. 554) 436.
Even if the 2nd respondent/applicant has filed a motion on notice in compliance with Order 3 rule 3(1) of the Court of Appeal Rules, and even if he had an undoubted right of appeal it would be inequitable and unjust to grant a stay of proceedings in the circumstances of this case not only to the respondents in the application but also to the electorate in particular and the people of Delta State in general who are still wondering today whether the person returned as their Governor in the election held on 19/4/03 was qualified to contest the election, notwithstanding the fact that appeals on electoral matters are to be determined expeditiously “…regards being had to the need for urgency on electoral matters” See para 51 of the 1st Schedule to the Electoral Act, 2002.
The court is a creation of the Constitution. It will not give its aid, under any guise, to a violation of any provision of the Constitution, which gave it life. And as argued by learned Counsel for the respondents in the oral application Judges must, at all times and under all circumstances, strive to honour their oath of office to defend and protect the Constitution.
In view of the above and having considered the argument of the learned Senior Advocates for the parties, I hold, without reservation, that this oral application is not only in breach of Order 3 rule 3(1) of the Court of Appeal Rules, 2002, but it is also devoid of merit. It is hereby dismissed.
As stated earlier in this ruling the purported appeal, as learned Counsel for the 1st respondent described it, is not only frivolous, it also constitutes abuse of process of court, to which this court will not give its aid. There is therefore no valid ground for the court to transmit the motion for a stay of execution of the ruling of this court on 25/10/05 to the Supreme Court, as the appeal to the Supreme Court is incompetent.
The 2nd respondent/applicant is to pay cost assessed at N2,500.00 to each of the 1st and 2nd respondents in the oral application.
Application dismissed.
Other Citations: (2005)LCN/1841(CA)
