Major Adebowale Basorun V. Chief of Army Staff & Ors. (1989)
LawGlobal-Hub Lead Judgment Report
AWOGU, J.C.A.
This application raises an important procedural issue. It arose in this manner. The plaintiff brought a claim against the defendants, who were initially represented by Ayoola from the chambers of Aminu Dahiru & Co., Solicitors. At the next hearing date, M. O. Adio, a Director of Litigation in the Federal Ministry of Justice, announced his appearance for the defendants. The firm of Aminu Dahiru & Co., had not withdrawn their appearance for the defendants. Alao Aka-Bashorun, who led two other counsel from his chambers, objected to the appearance of M. O. Adio as being irregular. The learned Judge, after listening to arguments on the merits, dismissed the objection. Against this dismissal, counsel for the plaintiff filed a Notice of appeal. There was also before the court a motion for stay of further proceedings pending the determination of the appeal against the appearance of M. O. Adio. This motion was fixed for April 10, 1989.When the hearing resumed, M. O. Adio moved orally his objection to jurisdiction. The motion for stay of further proceedings was also taken. After the hearing of the two application, ruling was adjourned to May 16, 1989.
On April 18, 1989, counsel for the plaintiff filed a motion before this court for an order staying further proceedings before the Lagos High Court pending the determination of the appeal. The Affidavit of Urgency stated that:-
“2. The appellant filed a notice of appeal herein on the 7th March, 1989.
- That the appellant filed an application for stay of further proceedings before this Honourable Court today the 18th April, 1989.
- That unless the said application for stay of further proceedings is urgently considered by this Honourable Court the appeal will be rendered nugatory.
- That the respondents will not be damnified if this application is urgently considered.”
When the application came up for hearing, M. O. Adio for the respondents, filed a motion to strike out the pending application, on the following grounds:-
(i) that there is no appeal before this Honourable Court.
(ii) that an application for stay of proceedings is still pending in the lower court;
(iii) that the application for stay of further proceedings dated 18th April, 1989 filed in this Honourable Court is frivolous and an abuse of the process of the court; and
(iv) for any further or other order or orders as this Honourable Court may deem fit to make in the circumstances.
The affidavit in support of the motion, sworn to by one Osahon Idemudia, a State Counsel in the chambers of the Attorney-General of the Federation, stated as follows:-
“5. That I was in court with Mr. M. O. Adio on Tuesday, 11th April, 1989 when arguments on stay of proceedings and jurisdiction were taken by His Lordship, Mr. Justice Olusola Thomas in the Lagos High Court No. 5 and ruling was fixed for 16/5/89.
- That the said ruling on stay of proceedings and jurisdiction has not been delivered till now as 16th May 1989 is some couple of weeks ahead.
- That without waiting for the ruling in the earlier arguments the respondent has filed another application for stay of proceedings dated 18th April, 1989.”
It is clear from the motion that the objection to the present application was that a similar motion was pending in the lower court and was yet to be ruled upon. The motion in objection relied upon Section 18 of the Court of Appeal Act 1976, Order 3 rule 3 (4)(5) of the Court of Appeal Rules, 1981 and Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1979.
In arguing the application for stay of further proceedings, Aka-Bashorun for the applicant relied on his affidavit in support of the application. He said that when M.O. Adio was allowed to appear, the applicant appealed against the order allowing him to do so. Inspite of the appeal, the learned Judge allowed M.O. Adio to argue on the issue of jurisdiction, even when the applicant had filed a motion for stay of further proceedings. The learned Judge then adjourned the issue of jurisdiction, and for stay, for a ruling, thereby allowing M. O. Adio to continue to appear inspite of the objection. He said that unless his application for stay in this court was granted, M. O. Adio would continue to appear even though an appeal was pending against his appearance. He conceded that the learned Judge was yet to rule on his application for stay but contended that if he delivered the ruling on jurisdiction along with that for stay, his appeal against the appearance of M. O. Adio would be rendered nugatory. He said that this raised a special circumstance for which this court should consider the application for stay without the benefit of the ruling on a similar application made before the lower court. He urged the court to grant his application for stay and to direct the lower court not to rule on the issue of jurisdiction. In his reply, M. O. Adio for the respondents, stated that an appeal did not operate as a stay of execution, and cited in support Vaswani v. Savalakh (1972) 1 All N.L.R. (Pt. 2) 483 at 488. He said that the lower court over-ruled the objection against his appearance and he was therefore entitled to continue to appear because a stay had not been granted inspite of the pending appeal. He submitted that the application before the court was incompetent as the court below was yet to rule on the issue of jurisdiction, as well as on the stay of further proceedings. As it were, the applicant came to this court for a stay when no appeal was pending. He cited in support Bank for Credit & Commerce V. Anenih & Ors., CA/L/375/87 of 6th January, 1988 (unreported); Kigo V. Holman (1980) 5-7 S.C. 60. On the propriety of the present application, he urged the court not to allow it and to await the ruling of the lower court on the issue. He cited in support Order 3 rule 3(4) of this court, and Obikoya v. Ford Financial Trust Ltd., CA/L/19M189, delivered early this morning. He urged the court to refuse the application as it was premature. Bashorun conceded that jurisdiction was yet to be ruled upon, but posed the question as to whether M. O. Adio whose appearance was objected to, or the firm of Aminu Dahiru, was the person competent to raise it. He said that by allowing M. O. Adio to do so, if the objection to jurisdiction succeeded, the appeal against the appearance of M. O. Adio would be rendered nugatory.
The important procedural point involved in this appeal is the propriety of this court considering an application for stay of further proceedings when a similar application was yet to be ruled upon by the lower court. The attitude of this court has always been guided by the provisions of Order 3 rule 3(3)(4) of the Rules of the Court of Appeal 1981 which state as follows:-
“3(3) Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.
(4) Wherever under these Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court below except where there are special circumstances which make it impossible or impracticable to apply to the court below.”
(See Obikoya V. Ford Financial Trust Ltd., (supra) p.9)
In other words, assuming there is a valid appeal pending against the appearance of M. O. Adio, such an appeal would not operate as a stay of further proceedings, and the provisions of Section 18 of the Court of Appeal Act, 1976, would apply. It states:
“An appeal under this Part shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution, either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court.”
Although we are concerned here with “stay of proceedings” and not with “stay of execution”, decided cases suggest that the distinction is inconsequential. According to Karibi-Whyte, J.S.C., in Akilu v. Fawehinmi (No.2) (1989) 2 N.W.LR. (Pt. 102) 122 at 165.
“This second category is generally referred to as a stay of execution or injunction or stay of proceedings. The effect is generally the same, namely, to suspend any proceedings in relation to the matter.”
In other words, the provision of Section 18 of the Act would apply to the present application, the only problem being that there is a pending application in the lower court which is yet to be disposed of Order 3 rule 3(4) does not, of course, forbid the making of an application to this court, save where there are special circumstances which make it impossible or impracticable to apply to the court below.” The objection, as I understand it, is not that an application has been so made, but that it is yet to be disposed of. Aka-Bashorun’s contention, however, is that the Ruling on the said application will be delivered along with the Ruling on Jurisdiction, raised by the very M. O. Adio, whose appearance is the subject of the appeal. In consequence, he urged upon us to consider the desirability of restraining the lower court from delivering the Ruling on jurisdiction, so that if the Ruling on stay of proceedings was dismissed, he would have at least a chance of his present application here being considered, and that unless this was done, the pending appeal against the appearance of M. O. Adio would be rendered nugatory. In my view, there is good sense in this contention. Ikabala & Ors. v. Ojosipe (1972) 4 S. C. 86, raised a not too dissimilar issue, to which Elias, C.J.N., responded at page 92.
“The learned Counsel for the applicant invited us to make a definitive ruling on the question whether or not notice of appeal from the Ruling of a High Court Judge should operate as a stay of execution, or of proceedings, arising out of his decision, in the absence, apparently, of any contrary direction either by that High Court or by the Supreme Court. We are of the opinion that it would be clearly undesirable that a Judge in the court below who has proper notice of an appeal to this court should nonetheless proceed with the case in disregard of such notice….We therefore think it inappropriate to lay down any general rule that notice of appeal to a superior court, if duly given to a lower court, should be deemed to operate in every case as a stay of execution of the decision of the lower court.”
Coker, J.S.C., was faced with not a totally dissimilar situation in Vaswani Trading Company v. Savalakh & Co., (1972) 12 S. C. 77, where he said at page 88:
“Whilst by virtue of the provisions of the section, an appeal or the filing thereof could not eo ipso operate as a stay of execution, clearly in practice, the position should be different where apart from filing an appeal, the prospective appellant also files an application in this court, by which a stay of execution of the same judgment is sought. In such circumstances, a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that, at that stage of the proceedings, it is not possible for any party to present it with a fait accompli.”
Although there is a pending application for stay which the learned Judge is yet to consider, prudence dictates that he should have first ruled on the application before considering any objection to jurisdiction by the very counsel whose appearance is the subject of the appeal. Had this been done, the question of whether or not there is an appeal with arguable grounds would have enabled this court to decide whether or not there is in fact a valid appeal pending before us. By reserving a Ruling jointly on jurisdiction/stay, the applicant has a Sword of Damocles hanging over his head, and has therefore chosen to play safe by filing the present application. Common sense commends the approach. So, too, the Law, but for the provisions of Order 3 rule 4, quoted above. Although the affidavit in support of the application does not so clearly state, this very situation creates a special circumstance for which the present application should be considered by this court and, in my view, allowed. This court does not have the jurisdiction under Section 18 of the Court of Appeal Act to stop the lower court from delivering its Ruling on jurisdiction, since there is no application for Prohibition to that effect, but under the special circumstances now apparent, it can entertain an application for stay of further proceedings without the lower court ruling on the application now pending before it. Hopefully, we understand that Ruling on both issues has been postponed since the learned Judge was apprised of the fact that this application was pending. The good spirit is to be commended, as it has given meaning to the present ruling. Accordingly, the present application succeeds and a stay of further proceedings in Suit No. M/23/89 now pending before Olushola Thomas, J., in High Court NO.5 of Lagos State is hereby stayed pending the determination of the appeal now pending in this court over the appearance of M. O. Adio in the said proceedings before Olushola Thomas, J. There will be no order as to costs.
Other Citations: (1989)LCN/0097(CA)
