Moses Amaechi Mba V. Victoria Nwosu & Anor (2007)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
This is an application dated the 17th day of May 2006 and filed on the same date in which the applicant prayed for the following reliefs:-
“(1) An order staying proceedings in suit A/238/2003 – Moses Mba v. Victoria Nwosu and another at High Court No. 1, Awka, Anambra State presided over by Hon. Justice Omegbolu Nri-Ezedi pending the determination of the appeal on the ruling of the said court dated 11/4/2006.
(2) An order staying execution of the award of ten thousand Naira (N I0.000.00) cost awarded against the plaintiff/applicant in favour of the defendants as a result of the plaintiffs request for an adjournment pending the determination of the appeal he filed on the ruling of the said Awka High Court.
(3) For such order or other orders as the court may deem fit to make in the circumstances.”
In support of the application is an affidavit of 23 paragraphs.
The 1st and 2nd respondents opposed the application and they relied on a paragraph Counter-affidavit. Written addresses were ordered in this application. At the hearing, learned counsel for the pat1ies adopted and relied on their written addresses. The learned counsel for the applicant abandoned relief No.2 and it is hereby struck out.
The learned counsel for the respondents raised preliminary objection in the respondent’s written address.
He stated that at the lower court on 11/4/06 the plaintiff/applicant sought to tender a document in suit No. A/238/03 pending before High Court No.1, Awka. There was objection as to the admissibility of the document which was sustained and the lower court rejected the said document.
As a result the plaintiff/applicant filed an appeal against the ruling of the lower court and filed motion for stay of proceedings straight in this court.
The respondent’s counsel contended that the motion for stay of proceedings ought to have been filed first in the court below as required by the Court of Appeal Rules. And it is upon its refusal at the lower court that the application will then be filed at the Court of Appeal.
He submitted that the requirements of Order 3 rule 3(3) and (4) were not complied with.
In his reply learned counsel for the applicant submitted that the preliminary objection was based on technicalities and that the Supreme Court frowns on issues bordering on technicalities rather than substance. He relied on the case of – H.M.S. Ltd. v. First Bank (Nigeria) Ltd. (1991) 1 NWLR (Pt.167) 290.
He also contented that the issues raised in paragraphs 14, 16, 17 and 19 of the affidavit in support made it impossible or impracticable for the applicant to file the application at the court below.
The learned counsel referred to the notice of appeal – i.e. exhibit “B” and he submitted that the grounds of appeal contain substantial points of law.
He relied on the following cases:
Vincent v. Xtodeus (1993) 5 NWLR (Pt.296) 675, (1993) 6 SCNJ page 282 at 299.
Agbaje v. Adekunle (1990) 7 NWLR (Pt.164) 595, (1990) 12 SCNJ page 18 at 128.
He finally urged that the preliminary objection be dismissed.
In order to appreciate the objection of learned counsel for respondents, it would be necessary to set out the provisions of Order 3 rule 3(3) and (4) of the Court of Appeal Rules, 2002, It is as follows:
“(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 except where there are special circumstances, which make it impossible or impracticable to apply to the court below,”
In the instant application the applicant failed to comply with Order 3 rule 3(3) and (4) of the Court of Appeal Rules but he relied on paragraphs 14, 16, 17 and 19 of the affidavit in support as the special circumstances which made it impossible or impracticable for him to apply to the coul1 below as required by Order 3 rule 3(4) of the Court of Appeal Rules.
It is however pertinent to set out the reasons deposed in paragraphs 14, 16, 17 and 19 of the affidavit in support relied upon by the applicant and it is as follows:
“(14) That inspite of the notice of appeal before the Judge, the court urged me to continue with my evidence-in-chief, but I pleaded with the coul1 that I would not go on with the case until the determination of my appeal by the Court of Appeal.
(16) That my counsel offered N1, 000.00 but the court on its discretion awarded N10, 000.00 cost against me in favour of the defendants and directed that the cost must be paid in full on or before the next adjourned date which is 25/4/2006 when hearing will definitely continue. I attach herewith the proceeding of the court that was not the full record of what happened in the court on the date in question as exhibit “C”.
(17) That the learned trial Judge is threatening that the matter will continue on the adjourned date whether there is an appeal on his ruling and/or motion for stay of proceedings filed.
(19) That my lawyers informed me and I verily believe them that since the learned trial Judge has made up his mind in all available legal steps open to me that the issue of stay of proceedings of the case and stay of execution of N10, 000.00 awarded to the defendants for the plaintiff’s request for an adjournment, should be referred to the Court of Appeal for necessary action.”
In opposition to the averments in the affidavit in support quoted above, the respondents filed counter-affidavit and relied on the following paragraphs 4(l)(x), (xi), (xiv), (xv) and (xvi). They are also set out as follows:
“(4) That the lead counsel for the defendants in the present motion for stay of proceedings. Chief O. B. Onyali SAN informed me in his office at No.34 Zik Avenue, Amawbia and I verify believe him as follows:
(l) That the lead counsel has read and interpreted to the illiterate 1st defendant/respondent the contents of the applicant’s affidavit in support of motion from English to Ibo and she seemed perfectly to understand the entire 23 paragraph affidavit and found that paragraphs 4, 5, 7, 8, 12, 14, 16, 17 18, 19, 20 and 21 of the said affidavit are not true and are hereby denied paragraph by paragraph.
(x) That the Certified True Copy of the proceedings as annexed by the applicant as exhibits “A” and “c” herein are the true proceedings in the case at the lower court.
(xi) That no motion for stay of proceedings was ever filed at the lower court by plaintiff/applicant.
(xiv) That there was no so called “threats” by the Judge as alleged in paragraphs 17 and 18 of the applicant’s affidavit.
(xv) That in fact on 24/05/06 when the applicant’s counsel informed the court that he filed motion for stay of proceedings in the Court of Appeal. The lower court suo motu adjourned the case to await ruling of the Court of Appeal.
(xvi) That the applicant did not file any appeal against the order for cost awarded nor file any motion to stay execution at any time.”
As could be gleaned from the averments in the counter-affidavit of the respondents, paragraphs 14, 16, 17, 18, and 19 relied upon by the applicant were denied. It went on to state that the correct position of events were as stated in exhibits “A” and “c” obtained by the applicant.
It is a fundamental principle of law that parties are bound by the record of proceedings as compiled and forwarded to the appellate court. In C.B.N. v. Okogie (2004) 10 NWLR (Pt. 882) page 488 at 499 it was held among others that-
“There is a presumption that a record of appeal or proceedings once certified and transmitted to the Court of Appeal is correct and unless the contrary is proved, the appellate court is entitled to look at or refer only to the record before it in deciding any issue in dispute.”
I therefore agree with the submission of counsel for the respondents that where counsel to a party seriously challenges the record of proceedings of court, he will show this by swearing to an affidavit himself and in addition annexing as exhibit his own hand written proceedings of the particular day and served on the Judge for his reaction to the facts therein and to be contrasted with that of the lower court by the appellate court.
Also there is no further affidavit to controvert the averments in the counter affidavit, I therefore accept as true, the facts averred in F the counter affidavit of the respondents and further that the contents of exhibits “A” and “c” attached to the affidavit in Support of the application as correct. See – Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) page 773 at 774-775.
In view of the foregoing there is no reason why the applicant should not have filed his motion for stay of proceeding in the lower court to enable the court express his opinion in writing on the issue. Consequently, it is my view that the applicant has not shown any special circumstance which made it impossible or impracticable to apply to the court below for stay of proceedings.
Before I conclude this ruling, I will also like to state as a matter of guidance that stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.
See:- Halsbury’s Laws of England 4th Edition. Volume 37, Paragraph 442 at Page 330.
In Obi v. Elenwoke & others (1998) 6 NWLR (Pt. 554) page B 436 at 438. It was held inter alia that:-
“Whether or not to stay proceedings following an appeal against an interlocutory order depends on a number of factors. It is for the trial court to exercise its discretion judicially and bearing in mind the circumstances of each case. Invariably, however, where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of an appeal lodged against it by an aggrieved party. This is so because such an order could be made the subject of appeal if it ultimately becomes necessary following the final judgment. It saves time and expense to proceed with the case. It is the duty of every court to eliminate situations which may unnecessarily cause delay in the administration of justice.
(Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) page 224 at 235: Arojoye v. UBA (1986) 2 NWLR (Pt. 20) page 101 at 112 referred to).”
In the result, the preliminary objection is upheld by me and I hereby strike out this application for incompetence.
The respondents are entitled to a cost which is fixed at N2, 500.00 against the applicant.
Other Citations: (2007)LCN/2400(CA)
