Joe Adolo Okotie-eboh & Anor V. Mrs Alero Jadesimi & Ors (1999)
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ADEREMI, J.C.A.
By their application dated 4th May, 1999 filed on the same date, the defendants/appellants/applicants pray this court for the following orders:
- An order granting a departure from the Rules of this court by allowing the appellants/applicants to compile the record of appeal and treating the bundle of documents already compiled by the appellants and annexed hereto as Exhibit “J.A.O.” as the Record of Appeal.
- An order staying the execution of the order of the lower court made on 19th April, 1999 rending the hearing and determination of the substantive appeal.
ALTERNATIVELY
An -order of injunction restraining the Respondent herein Mrs. Akro Jadesimi whether by herself, her servants, agents, privies and/or representatives from ejecting or disturbing or harassing the 2nd appellant or any of its officers interfering in any manner whatsoever with the 2nd appellant’s tenancy and/or possession of the said property pending the hearing and determination of the substantive appeal.
- An order staying further proceedings in the lower court pending the determination of the substantive appeal.
- An order accelerating the hearing of the substantive appeal by abridging the time within which briefs of arguments are to be filed by the parties.
GROUNDS OF THE APPLICATION
(a) The 2nd appellant is presently in possession of the property known as 1, Milverton Road, Ikoyi under a 5 years tenancy commencing from 1st May, 1997 whereas the lower court has granted the respondent an order to have peaceful and uninterrupted access to and use of the property whilst the said tenancy is still subsisting.
(b) Unless this court intervenes urgently there will be two persons i.e. 2nd appellant and respondent claiming possession to the property in dispute adversely to each other which event is most likely to result in a breach of the peace.
(c) The ex-parte order of injunction made by the lower court has prejudicially determined the third relief on the Writ of Summons.
On the 11th of May, 1999 this court granted the first leg of the prayer by admitting the Record of Appeal compiled by the appellant but argument on the remaining legs could not be entertained because of power failure.
Satisfied that all the parties were served, this court entertained arguments on the remaining legs. Mr. Tayo Oyetibo, learned counsel for the applicants moving the application referred to leg 2. which is for an order staying execution of the order of the lower court made on 19/4/99, and submitted that since the appeal has been entered in this court there was nothing more to be taken to the court below; he cited Order 1 Rule 22 of the Court of Appeal Rules and the case of Ezomo v. A-G for Bendel State (1986) 4 NWLR (Pt.36) 448 at 460. Special circumstances to warrant the grant of the prayer have been shown in paragraphs 19 to 21 of the supporting affidavit he contended. He further added that the interim order granted by the court below has prejudicially disturbed leg 3 of the prayers as an uninterrupted access was granted to the plaintiff without first hearing the other side on the 19th of April, 1999. While citing In Re G. M. Boyo (1970) 1 All NLR 111, and Alero Jadesimi v. Victoria Okotie-Eboh & Ors. (1996) 2 NWLR (Pt.429) 128 and contending that there is a very serious issue to be looked into in this matter, he urged that the application be granted.
Mr. Ike Imo, learned counsel for the plaintiff/respondent while re-stating the principle that order of court must be obeyed, he referred to the Notice of Preliminary Objection filed on 6/5/99 and involving the provisions of Order 3 Rule 3(4) of the Court of Appeal Rules he submitted that the application ought to have been brought in the first instance at the court below since, according to him, there are no special circumstances that warrant the bringing of the application before this court in the first instance; paragraphs 14 and 21 of the supporting affidavit, he pointed out, do not constitute special circumstances placing reliance on Irukwu & Ord. v. Trinity Mills Insurance Mills Insurance Brokers & Ors. (1997) 6 NWLR (Pt.507) 100. The respondent as a beneficiary of the estate has the right to sue for the protection of the estates citing Ojukwu v. Kaine (1997)9 NWLR (Pt.522) 613. Balance of convenience, he again contended, is always construed in favour of the person in possession and he cited West Ajhca Oil Services v. Pelfaco Ltd. & Anor. (1994) 1 NWLR (Pt.319) 164. To grant the present application is to grant the substantive order prayed for and the court does not make a practice of doing that, he again contended while urging that the application be refused.
Mr. Adetona, learned counsel for the 7th and 10th respondents associated himself with the submissions of the learned counsel for the applicants. The plaintiff/respondent is not the only child of the deceased, indeed she is one out of 13 children and her interest cannot be greater than the interest of the remaining children. He urged that the application be granted.
On points of law only, Mr. Oyetibo submitted that an order does not take effect until it has been served.
I shall begin with the preliminary objection filed on 6/5/99. Order 3 Rule 3(4) of the Court of Appeal Rules which is the foundation of the objection provides:-
“Where-ever under these Rules an application may be made either to the court below or to the court it shall not be made in first instance to the court except where there are special circumstances which made it impossible or impracticable to apply to the court below.”
The provisions of Order 3 Rule 3(4) are very clear. Ordinarily, this type of application ought not to be made in the first instance to this court. The court below or the trial court should be the first to entertain it. It is only when any of the parties is not satisfied with the decision of the court below that a similar application shall be brought before this court. The question to now ask is whether special circumstances have been shown to warrant the entertainment of the application in this court in the first instance? Mr. Oyetibo had in the course of his argument submitted that the appeal having been entered in the registry of this court, it (this court) becomes seized of the whole proceedings and every subsequent application after the entering of the appeal shall be made to this court and not to the court below. Authorities are ad idem that court of record whose judgments are subject to appeal has inherent powers to stay the execution of any judgment against which an appeal has been brought to strengthen the right of appeal. In the case of Ezomo v. A-G Bendel State (1986) 4 NWLR (Pt.36) 448 cited by counsel for the applicant, the Supreme Court held that until an appeal is entered in the appellate court, that court has no control over the proceedings as between the parties. It follows therefore that in such a situation all applications should be made to the court in which the Notice of Appeal was given.
The question then to ask is when can an appeal be said to have been entered? The answer to this question is that an appeal is deemed to have been entered when the Registrar of the court below has forwarded to the Registrar of the Appellate court the Record of Appeal filed by the appellant in the Registry. The transmission of the records to the Registrar of the appellate court connotes entering of the appeal. See (1) Ogunremi v. Dodo (1962) 1 All NLR 663; (1962) 2 SCNLR 417 (2) Adewoyin v. Adeyeye (1962) 2 All NLR 108 and (3) Order 3 Rule 13 of the Court of Appeal Rules.
By the order of this court made on 11/5/99 the Records of Appeal have been admitted in this court and so this court is competent to entertain this application. The principles guiding the grant or refusal of an application for stay of execution and stay of proceedings have been stated several times in a plethora of judicial decisions. The duty is on the court in an application for stay of execution pending appeal to consider very dispassionately the competing rights of the parties the category of which includes the right of a successful party to reap the fruits of his victory and the demand of justice to preserve the rest pending the determination of the appeal, so that the appeal if successful should not be rendered nugatory. This duty foists on the court the herculean task of exercising its discretion both judicially and judiciously with one view in mind, and that is the dispensation of justice. See (1) Deduwa of Ors. v. Okorodudu & Ors. (1974) 1 All NLR (Pt.1) 272 and (2) Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5 -7 S.C. 60. In a not dissimilar manner, from those that guide the grant of stay of execution, the principles regulating the grant or stay of proceedings pending appeal are in the following terms: a stay of proceedings pending an appeal will be granted where to refuse it will render the appeal nugatory, Not only will the existence of special circumstances dictate the grant of the application where the interest of justice makes it mandatory it will be readily granted. The third relief sought by the plaintiff in her writ of summons reads: “An order of perpetual injunction restraining the defendants, their servants, agents, privies whether by themselves severally, jointly or otherwise however from occupying, leasing, letting, dealing or in any way interfering impeding or disturbing the peaceful and uninterrupted access to and use of 1, Milverton Road, Ikoyi, Lagos, until the said property becomes properly vested in the plaintiff.”
On an application brought ex-parte by the plaintiff the court below ruled:
“An order of interim injunction is hereby granted restraining the defendants/respondents, their servants, agents and/or privies whether jointly severally or otherwise howsoever from occupying, leasing, renting, dealing or from interfering with or in any way impeding or disturbing the peaceful and uninterrupted access of the plaintiff/applicant to the use of the property located at No. 1, Milverton Road, Ikoyi. Lagos, the subject matter of this suit pending the hearing and final determination of the motion on notice.”
I have had a careful study of the grounds of appeal. I have no doubts in my mind that from those grounds of appeal grave and substantial issues are raised. Special circumstances that necessitate the grant of this application are thus present. This is a proper case for the grant of the application. I make no further comment.
In the final analysis, I hereby order a stay of execution of the order of the court below made on the 19th April, 1999 pending the determination of the substantive appeal. I also order that further proceedings in Suit No.LD/981/99 before the court below be stayed pending the determination of the substantive appeal. I make no order as to costs.
Other Citations: (1999)LCN/0538(CA)
