Chris Nwabueze Ngige & Anor. V. Ron. Nelson Achukwu & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

On 29-1-2004, this court handed out a ruling in which it granted stay of further proceedings in respect of the matter dealing with competence of the court and order of interim injunction. Chief U. N. Udechukwu, SAN maintained that the stay of proceedings in respect of the above matter pending appeal to the Supreme Court in respect of same has nothing to do with the main appeal. He then desired to take their pending motion for departure from the rules so as to facilitate the entry of the appeal proper in this court. We called on all the counsel to address us on the propriety or otherwise of delving into the main appeal after the stated stay of proceedings in respect of the then pending matter was granted.

On 11th February, 2004, all learned Counsel for the parties advanced useful submissions in respect of their stand points.

Chief U. N. Udechukwu, SAN observed that the appeal has not been entered in this court. As such, it cannot be subject of stay of proceedings yet. He stated it clearly that the matter that came before the court was a motion for interlocutory injunction pending appeal. The appeal to the Supreme Court is in respect of a preliminary objection to motion for interlocutory injunction. He felt that what this court stayed was further hearing on motion for interlocutory injunction and such cannot extend to the substantive appeal that has not yet been entered. He observed that there is no preliminary objection against the main appeal. He referred to the case of Liyanage v. San & Anor. (1998) 13 NWLR (Pt.582) 500 at 506.

The senior Counsel prayed that the stay of proceedings ordered in respect of the initial pending matter be kept within its limit, as there is no special circumstance to extend it to the substantive appeal that has not yet been entered as there is only an application before the court for moves to enter the appeal. He further observed that the ultimate results of the appeal in the Supreme Court and the determination of appeal in this court are different. He finally submitted that whatever order is made in the substantive appeal can never render nugatory the appeal before the Supreme Court.
Wole Adebayo, Esq, of counsel for the 1st respondent, maintained that the applicant applied for stay of proceedings in the entire case and same was granted as prayed.

He referred to Order 5 rule 3 of the Court of Appeal Rules, 2002. He felt that this court lacks jurisdiction to review its ruling, since it is clear on its face. He called in aid of his stand point the cases of Soyannwo v. Akinyemi (2001) 8 NWLR (Pt.714) 95 at 117; Ibe v. Onuorah (No.2) (2001) 9 NWLR (Pt.719) 519 at 525-526. He maintained that the court becomes functus officio in such matters.

Learned Counsel felt that it is irrelevant that the appeal has not been entered. He referred to section 16 of the Court of Appeal Act and the case of Akeem v. University of Ibadan (2001) 15 NWLR (Pt.736) 352 at 369. He maintained that the determination of the appeal at the Supreme Court will affect the hearing of the main appeal. He posited that the decision of the Supreme Court in respect of applicant’s reliefs should not be prejudiced.

R. N. Chenge, learned Counsel for the 2nd respondent (IGP) submitted that the issue is not to review the ruling on stay of proceedings. Rather, it is to state clearly which of the proceedings was stayed. He maintained that the applicant never prayed for stay of proceedings in respect of the main appeal. He submitted that a party cannot be given more than what he asks. He cited Egbuo v. Chukwu (1998) 10 NWLR (Pt.570) 499.

Learned Counsel submitted that in the interest of justice, a narrow interpretation should be given to the phrase – ‘in this case’ to mean only the interlocutory application bearing in mind that the applicant is not estopped from bringing motion on stay of proceeding in respect of the main appeal which will then be taken on its merit. He felt that whatever may be the relief sought at the Supreme Court, it is his prayer in this court that can be considered; he cannot be granted a bonus.
Chief U. N. Udechukwu, SAN, in reply observed that it is the ground of appeal and not the reliefs sought that this court took into consideration in granting stay of proceedings. He felt that the term the case – is not a legal term of art. In general terms, it means the issue placed before the court for adjudication. It is subsumed under cause and matter vide section 31 of the Court of Appeal Act, 1976.

He finally observed that when this court granted stay in the matter, such related to proceedings in respect of motion for injunction.

There is no iota of doubt about it that there is a gulf of difference between cause and matter. Often, a matter may arise before or after a cause is heard and determined. The distinction is best captured by section 31 of the Court of Appeal, 1976.

There is no gainsaying the fact that appeal herein has not yet been entered. The motion for stay of proceedings has no bearing with an appeal that has not yet been entered, stay of proceedings was in respect of the pending matter before the court. The applicant should not expect that he was given more than what he asked for. He was not given a bonus in respect of an appeal that is yet to come on board. The case of Egbuo v. Chukwu (supra) cited by the counsel for the 2nd respondent is of moment.

The matter dealt with is appeal against the order made by this court in respect of interlocutory injunction. Should the main appeal be kept in the cooler as well, pending the determination of an appeal on a matter which preceded the main appeal? I think not. Learned Counsel for the 1st respondent talked of this court being functus officio in the prevailing circumstance. The issue, to my mind, is not a review of the ruling on stay of proceedings. Rather, this court is called upon to demarcate its limit. And I see nothing unusual in so doing.

I agree with the senior Counsel for the appellant/applicant that the tag – the case – is not a strict legal term of art. In general terms, it means the issue placed before the court for adjudication. It is subsumed under cause and matter. The ruling on stay of proceedings related to the matter, which came up before the appeal proper is entered. It will be tantamount to deceit to say that the stay granted in respect of the matter must extend to an appeal a cause – that is yet to be entered.

Surely, the stay of proceedings in respect of matter before the court before the main appeal is entered cannot and did not affect taking due steps to get the appeal on board. Due steps can be taken to get the main appeal entered in this court. The senior Counsel is at liberty to take necessary steps deemed fit to get the appeal entered.

I order accordingly.

Other Citations: (2004)LCN/1537(CA)