Nigerian National Petroleum Corporation & Anor. V. Odidere Enterprises Nigeria Limited (2007)
LawGlobal-Hub Lead Judgment Report
ABOKI, J.C.A.
In this application the appellants/applicants are praying this court for the following reliefs:
“1. An order granting enlargement of time within which the appellants/applicants may seek leave to appeal against the ruling of the Honourable Justice A.I. Chikere sitting at the Federal High Court, Abuja delivered on 18th July, 2006.
- An order granting leave to the appellants/applicants to appeal against the ruling of the Honourable Justice A.I. Chikere sitting at the Federal High Court Abuja, delivered on 18th July, 2006.
- An order granting leave to the appellants/applicants to appeal against the ruling of the Honourable Justice A.I. Chikere sitting at the Federal High Court, Abuja delivered on 18th July, 2006, on grounds other than grounds of law alone.
- An order granting enlargement of time within which to file the notice of appeal against the ruling of the Honourable Justice A.I. Chikere sitting at the Federal High Court. Abuja delivered on 18th July, 2006, as set forth in exhibit 2 to the affidavit in support of this motion.
- An order directing a stay of further proceedings in suit No. FHC/LS/32/1997 before the Honourable Justice A.I. Chikere subject matter of this appeal, until the hearing and determination of the appeal by this Honourable Court against the ruling of the Federal High Court dated 18th July, 2006.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”
This application dated 11th October, 2006 and filed the same date has three affidavits in support of it. The first is a 12 paragraph affidavit, the second has paragraphs 13 – 17 while the third contains paragraphs 20-24. Attached to the first affidavit are four exhibits marked as exhibits 1, 2, 3 and 4 series.
Exhibit I is the certified copy of a ruling of the Federal High Court, Abuja dated 18th July, 2006.
Exhibit 2 is the proposed notice of appeal.
Exhibit 3 is the certified copy of motion on notice and affidavit in support of motion on notice for leave to appeal in the Federal
High Court dated 24th July, 2006.
The exhibit 4 series are copies of letters from Messrs Olumide Ayeni& Co. to the Registrar, Federal High Court, Abuja dated 18th and 20th July, 2006.
In the 3rd affidavit in support of the application dated 9th August, 2006, the applicants in paragraph 22 of the said affidavit referred to a copy of the notice of discountenance attached and it is the 5th exhibit.
The respondent filed a counter-affidavit of 28 paragraphs with two exhibits marked as A and B respectively. Exhibit A is a letter from the Chief Judge of the Federal High Court dated 22nd January, 2003 to Hon. Justice S.W. Egbo-Egbo who was transferred from Lagos to Abuja, directing him to continue the hearing of the case in Abuja.
Exhibit B is a motion of intention to contend that judgment should be affirmed on grounds other than those relied upon by the court below pursuant to Order 3 rule 14(2) of the Court of Appeal Rules, 2002.
This court on 1st November, 2006 granted leave to both parties to file written addresses in respect of this application.
The appellants/applicants filed a joint written address dated 7th November, 2006 while the respondent filed a written address in opposition to the applicants’ motion on 17/11/2006. The appellants/applicants also filed a joint written reply address dated 20/11/2006.
During his oral submission before this court, learned counsel for the appellants/applicants, Dr. Olumide Ayeni withdrew the processes mentioned in paragraph 2.1 of the Joint appellants/applicants’ written address.
He also referred the court to pages 2 and 3 of the written address particularly reliefs 2 and 3. Learned counsel cited the case of Lufthansa-German Airline v. Odiese (2006) 7 NWLR (Pt. 978) page 34 at 51- 82 and urged the court to grant the application in its entirety.
In reply learned counsel for the respondent, Remi Awe-Osho (Mrs.) said they are adopting both the counter-affidavit dated 27/10/2006 and the respondent’s written address filed on 17/11/06. Learned counsel commended the case of PD.P v. Atiku Abubakar CA/A/212/06 (unreported) now reported in (2007) 2 NWLR (Pt.1018) 303, and urged the court to refuse the application.)
The appellants/applicants were the defendants in respect of a suit commenced by a writ of summons and statement of claim at the Federal High Court, Lagos while the respondents as plaintiffs claimed the reliefs enumerated in exhibit 1 which is adumbrated as follows:
“18(a) In respect of the 1st contract:
(i) Cost of procurement of letter of credit – US $74,250 or N6,088,500 (Naira equivalent as at the date of filing the Writ of summons).
(ii) Loss of profits arising from defendants’ breach – US $300,000 or N24,600,000 (Naira equivalent as at the date of filing the writ of summons).
(b) In respect of the 2nd contract.
(i) Cost of procurement of letter of credit – US$120,000 or N9,840,000 (Naira equivalent as at the date of filing the writ of summons).
(ii) Loss of profits arising from defendants’ breach US $370,000 or N30,340,000 (Naira equivalent as at the date of filing the writ of summons).
(c) Interest:
In respect of the 1st contract:
(i) The sum of us $25,440.43 being accrued interest on the sum of US $74,250.00 calculated from the 1st July 1991 to 30 April, 2001 at the rate of 3% per annum.
(ii) Interest on the sum of US $74,250.00 at the rate of 3% per annum from the 1st day of May, 2001 till the date of judgment.
(iii) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.
(iv) The sum of$47,615,99.00 being accrued interest on the sum of US $3,000,000.00 calculated from 7th June, 1996 to 30th April, 2001 at the rate of 3% per annum.
(v) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.
In respect of the 2nd contract:
(i) The sum of US$37,142.78 being accrued interest on the sum of US$120,000.00 calculated from 1st May, 1992 to 30th April 2001 at the rate of 3% per annum.
(ii) Interest on the sum of US$120,000.00 at the rate of 3% per annum from 1st day of May 2001 till the date of judgment.
(iii) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.
(iv) The sum of US$58,726.39 being accrued interest on the sum of US$370,000.00 calculated from 7th June, 1996 to 30th April, 2001 at the rate of 3% per annum.
(v) Interest on the judgment sum from the date of judgment at the rate of 4% per annum until full payment.”
When the learned trial Judge was transferred to Abuja from Lagos, he was directed to continue hearing the matter in Abuja.
Following a change of counsel by the appellants/applicants from the firm of Messrs Ibekwe, Ogbonna & Co. to the firm of Messrs Olumide Ayeni & Co. and after the plaintiff had started calling evidence in support of its case, Messrs Olumide Ayeni & Co. on behalf of the defendants challenged the jurisdiction of the Federal High Court to continue to entertain the dispute on the grounds that the subject matter of the suit was one of simple contract and not arising under section 251 of the Constitution of the Federal Republic of Nigeria, 1999.
The Honourable Judge who started hearing the case was prematurely retired from the service of the Judiciary and the Judge who took over the matter after hearing arguments of both parties, dismissed the application and held that the Federal High Court has jurisdiction to entertain the dispute. It is against this ruling that the appellants/applicants are seeking to appeal.
The proposed notice of appeal is exhibit 2 attached to this motion on notice and it contains four grounds of appeal, all of mixed law and facts or grounds other than of law alone.
The appellants/applicants formulated two issues for the determination of the application.
“1. Whether the applicants/appellants are entitled to be granted leave to appeal against the ruling of the lower court dated 18th July, 2006 on the basis of their proposed notice of appeal, and to regularize their position in the appeal.
- Whether the applicants/appellants are entitled to be granted this discretionary remedy of a stay of further proceedings in suit No. FHC/L/CS/32/1997 before the Honourable Justice A.I. Chikere subject matter of this appeal, until the hearing and determination of the appeal by the Honourable Court against the ruling of the Federal High Court dated 18th, July 2006.”
The respondent on its part also presented two issues for the determination of this application and they read thus:
“1. Whether or not the applicants are entitled to the leave of this Honourable Court to appeal against the ruling of the Federal High Court Coram Hon. Justice A.I. Chikere delivered on the 18th day of July, 2006.
- Whether or not from the facts and circumstances of this case, an order of stay of proceedings is not inappropriate and oppressive to the respondent. ”
The issues formulated by both parties except for the phraseology are identical in con. I will however adopt the issues as formulated by the appellants/applicants for the determination of this application. On the first issue for determination, learned counsel for the applicants argued that the applicants have deposed in the affidavit in support of the application, facts upon which this court can exercise its discretion in granting the reliefs sought. He made particular reference to paragraphs 5 – 8 of the affidavit.
Learned counsel for the applicants argued that the 28 paragraph counter-affidavit deposed to on behalf of the respondent as well as the two exhibits attached thereto did not contain any material posing any serious challenge to grant of the reliefs sought. Learned counsel for the applicants submitted that this is an appropriate case where this court should exercise its discretion and grant the reliefs sought particularly as the grounds of appeal are substantial, arguable and fundamental.
He contended that if the application is refused, the appellants/applicants would be compelled to undergo the rigours of a full and costly trial of the substantive suit involving calling witnesses in the suit initiated by writ of summons and pleadings without the fundamental issue of jurisdiction of the lower court to continue to entertain the suit being resolved at this early stage. He argued that this is a vital point for this court to consider in favourably exercising its discretion.
Learned counsel contended that the issues raised vide the proposed notice of appeal (exhibit 2) if resolved in favour of the appellants/applicants is not only capable of, but will bring to an end the case in the lower court, and this is to be encouraged. He referred the court to the case of Petrojessica Enterprises Limited & Anor v. Leventis Technical Company Limited (1992) 5 NWLR (Pt. 244) page 675,
Learned counsel maintained that cogent reasons have been advanced explaining the delay and strictly accounting for every day C of the period leading to this application being brought. He gave a summary of the reasons as disclosed in paragraph 8 of the affidavit in support of the motion. He urged this court to exercise its discretion liberally and favourably to the appellants/applicants particularly in the light of the issue of jurisdiction sought to be canvassed. He cited the case of Yesufu v. Cooperative Bank Limited (1989) 3 NWLR (Pt. 110) page 483 at 504.
Learned counsel for the appellants argued that exhibit 2, the proposed notice of appeal disclose four grounds of appeal, which distinctly address the question of jurisdiction of the Federal High Court and its decision to assume same.
Dr. Olumide Ayeni, learned counsel for the applicants submitted that it is trite that when the question of jurisdiction of a court to entertain a suit is raised or challenged and is the subject matter of a putative appeal, an appeal court will readily exercise the discretion to consider the issue. He referred the court to the case of Ukwu & Ors v. Bunge (1997) 8 NWLR (Pt. 518) page 527 at 541 – 542; Lauwers Import-Exports v. Jozebson Industries Limited (1988) 3 NWLR (Pt. 83) page 429; In Re: Adewumi (1988) 3 NWLR (Pt.83) page 483; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) page 508.
Learned counsel urged the court to hold that the twin requirements of explanation of delay in bringing forward the application, and the arguable grounds of appeal in a tripod application of this nature have been satisfied. He cited the cases of:
Rosehill Limited v. Okporo Venture Limited (2006) 5 NWLR (Pt.974) page 447 at 458; Mobil Oil (Nig.) Limited v. Agadaigho (1988) 2 NWLR (Pt. 77) page 383.
Dr. Olumide Ayeni further urged the court to grant the reliefs sought in order to protect the Constitutional rights of the applicants to appeal, particularly in view of the fact that the alternative would be for the appellants/applicants to be compelled to undergo costly and unnecessary trial of a suit commenced by writ of summons, which may ultimately be decided to be futile on account of jurisdictional incompetence which in itself would work manifest injustice to all parties. He referred the court to the cases of Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (Pt. 724) page 369 at 395; Continental Trust Bank Limited & Ors. v. Balogun & Ors. (2003) FWLR (Pt. 162) page 1908 at 1920.
Learned counsel for the applicants contended that an important aspect of the present application is that in exhibit 2, the proposed notice of appeal, 3 out of the 4 grounds of appeal are issues of mixed law and facts which require leave of this Honourable Court before they can be competently raised. He submitted on behalf of the applicants that this is the essence of relief 3 on the face of the motion on notice. Learned counsel referred the court to the cases of: United Bank for Africa Limited v. Stahlbau G.M.B.H. & Co. KG (1989) 3 NWLR (Pt. 110) page 374 at 410; Falola v. Union Bank of Nigeria Plc (2005) 7 NWLR (Pt. 924) page 405 at 429; Nwabueze v. Nwora (2005) 8 NWLR (Pt. 926) page 1 at 18.
In his response to the first issue, learned counsel for the respondent, Mr. Tope Adebayo submitted that the appellants are not entitled to the leave of this Honourable Court to appeal the ruling of the Federal High Court. He maintained that they filed a 28 paragraph affidavit in opposition to the applicants’ motion under consideration. Attached to the affidavit are the letter dated 22nd January 2003 and the proposed respondent’s notice to affirm the ruling of the lower court on grounds other than the grounds relied upon by the lower court. The documents are exhibits A and B. Learned counsel said they seek to rely on all the paragraphs of the affidavit in urging this court to refuse the applicants’ application.
Learned counsel for the respondent drew the court’s attention to the fact that the applicants did not file any affidavit to contradict the facts stated in the respondent’s counter-affidavit and urged that facts contained in the counter-affidavit are to be deemed as having been admitted.
Learned counsel for the respondent maintained that the facts deemed admitted are contained in paragraphs 21, 22, 23, 24, 26, and 27 of the counter-affidavit and they are hereby adumbrated as follow:
“21. That the learned counsel to the applicants is aware that the 1st appellant is an agency of the Federal Government of Nigeria.
- That this application is brought in bad faith and is particularly filed with a view to using the process of this Honourable Court to frustrate and annoy the respondent.
- That contrary to the appellants’ supporting affidavit, there are no real issues of law in the notice of appeal.
- That the respondent’s business has suffered and is suffering, as a result of the schemes of the applicants at delaying this action. Also, the respondent specifically informed me and I verily believe him that due to the long delays suffered by this case, he has been financially incapacitated in prosecuting this appeal.
25.
- That the proposed notice of appeal contains unmeritorious grounds of appeal.
- That this application is brought in bad faith and it is in the interest of justice to refuse same.”
Learned counsel for the respondent submitted that leave to appeal is not granted as a matter of cause. He referred the court to Order 3 rule 4(2) of the Rules of this court as well as the cases of: Oloko v. Ube (2001) 13 NWLR (Pt. 729) page 161; Ibodo v. Enarofia (1980) 5 – 7 SC 42; Kotoye v. Saraki (1995) 5 NWLR (Pt. 395) page 256.
Mr. Tope Adebayo, learned counsel for the respondent, also referred the court to paragraphs 19, 20, 21, 22, 23, 25, 26 and 27 of the counter affidavit and submitted that the applicants’ grounds of appeal are not substantial, but calculated to further put the respondent to avoidable expenses.
Learned counsel argued that it is clear from the proposed notice of appeal that what the appellants seek to challenge is the jurisdiction of the Federal High Court to entertain matters involving NNPC – an agency of Federal Government.
Learned counsel maintained that this court as well as the apex court, have put an end to all arguments/contentions relating to this issue in the cases of:
Federal Government of Nigeria v. Oshiomhole (2004) 3 NWLR (Pt.860) page 305; NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) page 79.
Learned counsel for the respondent submitted that the applicants do not have an arguable appeal. He argued that the case of Onuorah v. K.P.R.C. (2005) 6 NWLR (Pt. 921) page 393 is not helpful to the applicants in that none of the parties to that case was an agency of the Federal Government as in the present case.
Mr. Tope Adebayo submitted that apart from the grounds upon which the decision of the trial court was based, there are other grounds contained in exhibit B to the counter-affidavit upon which the decision of the lower court could be based. Learned counsel said that the respondent intends to invite this court to uphold the decision of the lower court on these grounds.
In addition, learned counsel for the respondent contended that by showing preparedness to file notice of intention to contend that the lower court’s ruling be upheld on other grounds, the respondent is not suggesting that the appellants’ proposed notice of appeal has merit as contended by the appellants. Rather, the essence of this notice of intention he maintained is to demonstrate to the court that there are many grounds upon which the ruling of the lower court could be upheld.
He argued that the fact that this appeal is frivolous is further made obvious by the fact that many grounds exist upon which the decision of the lower court can be upheld.
Learned counsel for the respondent finally submitted on this issue that merely raising an issue of jurisdiction without more is not sufficient to warrant the grant of extension of time to appeal but that the appellants have a duty to establish the existence of two factors in line with the rules of this Honourable Court. He referred the court to the case of Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) page 527 and urged the court to hold that the applicants have failed in this duty.
Whenever leave of court is required for an appeal, an application for such leave must be made first to the court below and if refused, to the appeal court. However, an application for leave to appeal can be made to the appeal court in the first instance where the time limited for such an application has expired.
In an appeal against an interlocutory decision, the notice of application for leave must be filed within fourteen days from the day the ruling appealed against was delivered. See:
Douglas v. Federal Public Trustees (1959) 4 FSC 15; (1959) SCNLR 26; Alli v. Union Trading Company Ltd. (1954) 14 WACA 605.
The application for leave to appeal against the decision of a lower court will contain the following documents:
(a) Duly completed notice of motion for leave to appeal.
(b) A certified true copy of the judgment/ruling of the court appealed against.
(c) A copy of the proposed grounds of appeal.
(d) Where leave has been refused by the lower court, a copy of the order refusing leave.
An appeal, which is filed out of time and without leave is incompetent. See Adeleke v. Cole (1961) All NLR 35; (1961) 1 SCNLR 65.
An appeal court would lack jurisdiction to hear an appeal, which was filed out of time and in which the appellant took no step to have time extended in accordance with the Rules. See Adeyemi v. Awobokun (1968) 2 All NLR 318.
This court may extend the period prescribed by the Court of Appeal Act for giving notice of appeal or notice of application for leave to appeal. It may also extend the period prescribed for bringing an application for leave to appeal which had first been made to the lower court and refused or where the time limited for filing such an application before the lower court has expired. An application for extension of time within which to file a notice of appeal or notice of application for leave must be filed before the appeal court and not at the lower court as the lower court has no jurisdiction to extend time to bring an appeal. See: Adeleke v. Cole (1961) All NLR 35;(1961) 1 SCNLR 65; Isaac Onuoha v. Commissioner of Police (1959) SCNLR 75.
The rules of this court in Order 3 rule 4 prescribe conditions to be followed in bringing an application for extension of time within which to appeal.
Order 3 rule 4 stipulates as follows:
“(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.
(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
It follows therefore that in order for an application for extension of time within which to appeal to succeed, the following two conditions must coexist:
(a) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate Rules of court and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard. See:
N.D.I.C v. Ibru Sea Foods Ltd. (2003) 16 WRN 33; Iweka v. S.C.O.A. (Nig.) Ltd. (2000) 3 SC 21 (2000) 7 NWLR (Pt. 664) 325; Ifebuzor v. Nwabeze (1998) 8 NWLR (Pt. 560) page 148; U.B.N (Nig.) Plc v. Ndace (1998) 3 NWLR (Pt. 541) page 331; Co-operative & Commerce Bank (Nig.) Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) page 630; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) page 156.
The first condition is fulfilled by means of averments in the affidavit in support of the application while the second calls for the assessment of the cogency of the grounds of appeal in relation to the judgment or ruling sought to be appealed against. See Lauwers Import-Export v. Jozebson Industries Ltd. (1988) 3 NWLR (Pt. 83) page 429.
The applicant must succeed on both legs of the rule for the application to be granted. See Yesufu v. Co-operative Bank Ltd. (1989) 3 NWLR (Pt. 110) page 483.
In Yesufu v. Co-operative Bank Limited (1989) 3 NWLR (Pt.110) page 483 at 504, the Supreme Court per Karibi-Whyte, JSC held that:
“It is important to appreciate the fact that the dominant consideration in an application for enlargement of time to appeal is that there is a good cause why the appeal must be heard … .The subsidiary but relevant reasons why the delay in bringing the appeal should be condoned, is cured by setting forth in the affidavit good and substantive reasons for the delay …. Thus, the discretion will be exercised where the applicant show good cause that the appeal ought to be heard, the length of delay in such a circumstance will be immaterial. See Alabe v. Abimbola & Ors. (1978) 2 SC 39.”
The change of counsel may be a good reason for extension of time to appeal. See: A.C.B. v. Elosiuba (1991) 3 NWLR (Pt. 178) page 133.
It may however be necessary to attach the notice of change of counsel to the record of appeal. See Adapele v, Akintola (1986) 5
NWLR (Pt. 42) page 448.
Where a judgment or an order was given without jurisdiction, it could never be too late to appeal against it and in such a situation the reason for the delay ceases to be a relevant factor to be taken into consideration in an application for extension of time to appeal against the said judgment or ruling. See Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) page 527.
The main duty of the court will then be the consideration of whether or not it appears that the judgment or ruling was given without jurisdiction. See Lauwers Import-Export v. Jozebson Industries Ltd. (supra).
It is therefore necessary to annex to the application the judgment or ruling complained against so that the court can examine the facts of the matter properly. See: Ukpe Ibodo & Other v. Enarofia & others (1980) 5-7 SC 42; University of Lagos v. Olaniyan & Others (1985) 1 SC 295; (1985) 1 NWLR (Pt. 1) 156.
The appellants/applicants have advanced reasons explaining the delay and strictly accounting for every day of the period leading to the application. These reasons have been disclosed in paragraph 8 of the affidavit in support of this application and they are hereby adumbrated as follows:
“8. I know and depose as to the following facts:
(i) The grounds of appeal contained in exhibit 2 raise issue of mixed law and facts containing fundamental questions of law including jurisdictional ones challenging the lower court’s competence to entertain the substantive suit before it.
(ii) That leave of this Honourable Court is required before exhibit 2 containing issues of mixed law and facts on an interlocutory ruling of the lower court can competently be raised.
(iii) That a previous application had been made to the lower court which the lower court did not entertain within the time limit statutorily set for same and thereby became bereft of jurisdiction.
A certified copy of the application made to the lower court in time on the 24th July, 2006 is now produced, shown to me, tendered and marked exhibit 3.
(iv) The reason for the delay in bringing the application includes the fact that exhibit 1 was not made available to the appellants/applicants until 2nd August, 2006 even though timeous application was made for it on 18th July 2006. Copies of the application for exhibit 1 being letters of 18th and 29th July, 2006 from our Chambers to the court is now produced, shown to me, tendered and marked exhibit 4 series.
(v) I also made enquiries for exhibit 1 on 24th, 25th, 26th and 28th July, 2006 and was told it was still not available at those times.
(vi) A further reason is that this application was first made to the lower court which did not entertain it until the present application was made on 9th August 2006 which this Honourable Court adjourned on 10th October, 2006 to enable the appellants put their house in order.”
Exhibit 2, the proposed notice of appeal contains grounds of appeal challenging the decision of the lower court in assuming jurisdiction over the matter in dispute.
It is trite that when the question of jurisdiction of a court to entertain a matter is raised or challenged and it is the subject matter of an appeal, an appeal court will readily exercise its discretion to consider the issue.
In Ukwu & Ors. v. Bunge (1997) 8 NWLR (Pt. 518) page 527 at 541 – 542, the Supreme Court per Ogwuegbu, JSC held that:
” … Where the proposed grounds of appeal complain of lack of jurisdiction and it prima facie appears so, as in the instant case, … it may not be necessary to inquire into the reasons for the delay in bringing the appeal. The reason being that jurisdiction is always a good and substantial reason why an appeal should be heard.”
See: Lauwers Import-Export v. Jozebson Industries Limited (1988) 3 NWLR (Pt. 83) page 429, In Re: Adewunmi & Ors. (1988) 3 NWLR (Pt. 83) page 483; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) page 508.
Since the proposed notice of appeal contains grounds of appeal that raises issues of mixed law and fact which require leave of this court before they can be competently argued, in this circumstance the leave sought by the appellants/applicants to appeal against the ruling of the lower court delivered on 18th July, 2006 ought to be granted.
I had earlier said in this ruling that in an application of this nature for leave as well as extension of time to appeal, the two conditions which must be satisfied are that good and substantial reasons for the failure to appeal within the period prescribed must be given and the grounds of appeal must prima facie show good cause why the appeal should be heard.
The applicant must succeed on both legs of the provisions in Order 3 rule 4(2) of the Rules of this court, 2002 for the application to be granted.
The respondent’s counter-affidavit has not effectively countered the averments contained in the affidavit in support of this application.
I am satisfied that the appellants/applicants from the affidavit in support of this application and exhibits 1, 2, 3, 4 series and 5 have satisfied the twin requirements of explanation of the delay in bringing forward this application, and of good and arguable grounds of appeal and I so hold.
The first issue in this application is hereby resolved in favour of the appellants/applicants.
On the second issue formulated by the appellants/applicants, the appellants/applicants said the application is brought pursuant to section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 and sections 16 and 18 of the Court of Appeal Act No. 43 of 1976.
The learned counsel for the appellants/applicants submitted that the facts in support of the reliefs sought are set forth in the supporting affidavit, particularly paragraphs 9 – 11 thereof.
He maintained that the respondent filed a counter-affidavit on 7th October, 2006. The counter-affidavit contains 28 paragraphs and 2 exhibits marked A and B respectively. In relation to the particular relief of a stay of further proceedings in the lower court, learned counsel for the appellant/applicants gave a summary of the relevant depositions of the respondent in opposing the application as follows:
“(i) The substantive suit was commenced “in 1997 (i.e. about 9 years ago)” before the Honourable Justice Egbo Egbo of the Federal High Court sitting at Lagos.
(ii) The Honourable Justice Egbo Egbo commenced hearing of the suit at Lagos but transferred hearing of the suit to Abuja when the Judge was transferred so as “to obviate the need for the matter to start de novo before another Judge” as evident by exhibit A.
(iii) The matter was not concluded owing to the retirement of the Honourable Justice Egbo Egbo, and the suit was commenced de novo, before the Honourable Justice A.I. Chikere, who declined an application by the respondent to transfer the matter to the Lagos Division of the lower court.
(iv) That trial before the Honourable Justice Chikere started in the lower court on 12th February, 2004 and the respondent (as plaintiff) had started giving evidence.
(v) That on 17th October, 2005 after the case suffered several adjournments [at the instance of either the lower court or the respondent], the appellants/applicants changed their counsel to the firm of Messrs Olumide Ayeni &Co.
(vi) That Messrs Olumide Ayeni & Co. by application in the lower court dated 20th October, 2005 challenged the jurisdiction of the lower court “on the pretence” that the subject matter of the action was on simple contract which cannot be entertained by the Federal High Court.
(vii) That the challenge to jurisdiction of the lower court to continue to entertain the suit before it posed by the present applicants.
(a) is unmeritorious and “is calculated to further frustrate the Respondent(s) who have already been pauperized” by the actions forming the crux of the subject matter of the case in the lower court;
(b) a stay of further proceedings “will further frustrate the timeous and expeditious disposal of the case”;
(c) “learned counsel to the applicants is aware that the 1st appellant is an agency of the Federal Government of Nigeria.”
(d) the application constitutes an abuse of the process of court in that “this application is brought in bad faith … with a view to using the process of this Honourable Court to frustrate and annoy the respondent”;
(e) “there are no real issues of law in the notice of appeal … and the respondent’s business has suffered as a result of the scheme of the applicants at delaying” the action in the lower court;
(f) “that due to the long delays suffered by this case”, (the respondent) has been financially incapacitated in prosecuting this appeal;
(g) “the respondent intends to contend that the decision of the lower court (subject matter of this appeal) be affirmed on grounds other than the grounds relied upon by the lower court” and tendered a proposed respondent’s notice as exhibit B.”
Learned counsel for the appellants/applicants submitted that none of the depositions or materials put forward by the respondent in its counter-affidavit can displace the positive depositions in paragraphs 9 – 11 of the appellants’ affidavit. Learned counsel referred the court to the case of General Oil Limited v. Oduntan (1990) 7 NWLR (Pt. 163) page 423.
Learned counsel further submitted that to be entitled to be granted a stay of further proceedings in the lower court as sought, special or strong circumstances must be demonstrated and that a genuine issue of jurisdiction raised as in the present circumstance constitutes strong and special circumstance. He cited in support of this submission the case of Dada & 4 Ors. v. International Tanners Limited (2005) 11 NWLR (Pt. 936) page 293 at 304 and 306 – 307.
Learned counsel contended that delay in challenging the competence of the jurisdiction of the lower court as alleged by the respondent is still not enough to defeat an application of a stay of proceedings in this case. He referred the court to the case of Elugbe v. Omokhafe & 5 Ors. (2004) 18 NWLR (Pt. 905) page 319 at 336.
Learned counsel for the appellants/applicants maintained that the respondent itself by its deposition in paragraph 25 of the counter-affidavit deposed on 27th October, 2006 as well as exhibit B tendered therewith being a proposed notice of intention to contend that the judgment of the lower court be affirmed on grounds other than those relied upon by the court below pursuant to Order 3 rule 4(2) Court of Appeal Rules, 2002 have unwittingly conceded that the ruling of 18th July, 2006 by the lower court, exhibit 1 and subject matter of these proceedings might be faulty after all.
He argued that exhibit B is evidence of the fact that exhibit 1 ought to be looked at more closely thereby necessitating a stay of further proceedings in the lower court to enable this court examine all associated issue of jurisdiction raised by both the proposed notice of appeal and respondent’s notice thoroughly.
Learned counsel for the appellants/applicants contended that at the proceedings of this court on 1st November, 2006, he submitted and counsel to the respondent confirmed that the trial Judge had indicated the unwillingness of the lower court to stay further proceedings unless an express order of this court so directs. Learned counsel for the appellants/applicants submitted that this constitutes a further reason why this court will grant a stay of further proceedings in the lower court so as not to pre-empt or render nugatory any potential outcome of the appeal herein, since an appeal simpliciter does not operate as a stay of further proceedings or execution. He referred the court to the case of Cheshe & Anor. v. NICON Hotels Limited & Anor. (1998) 12 NWLR (Pt. 576) page 82 at 94.
Learned counsel for the appellants/applicants urged the court to grant the application for stay of proceedings in the lower court as prayed.
In response to the submissions of the appellants/applicants, learned counsel for the respondents submitted that this court has an unfettered discretion to grant or refuse an application for stay of proceedings. He maintained that in exercising the discretion, this court must however take into consideration the competing rights of parties, the interest of justice and the circumstances of the case under consideration. Learned counsel referred the court to the cases of Ikabala & Ors. v. Ojosipe (1972) 4 SC 86 at 92, Arojoye v. U.B.A. (1986) 2 NWLR (Pt. 20) page 101.
Learned counsel further submitted that the rules of court are made to enhance quick dispensation of cases and not to be manipulated or made a vehicle for undue delay to the annoyance and disadvantage of a litigant.
Learned counsel for the respondent referred the court to paragraphs 4 – 18 of their counter-affidavit and submitted that this case has suffered undue and unjustifiable delay for upwards of 9 years. He maintained that to allow the applicants to appeal and stay B the lower court’s proceedings on issue that has been conclusively decided by this court is antithetical to the interest of justice, injurious to the financial and physical health of the litigants and adverse to the role judiciary is meant to play as the last hope of the common man.
Learned counsel submitted that in the case of Obi v. Elenwoke (1998) 6 NWLR (Pt. 554) page 436 at 442 – 443, this court held that an order for stay of proceedings is a serious, grave and fundamental intervention on the right that a person has to conduct his litigation towards the trial on the basis of the substantive merits of his case. 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. He submitted that this is an appropriate case where an order for stay of proceedings ought not to be imposed. He argued that the appellants/applicants have no constitutional right to have this proceedings stayed.
Learned counsel for the respondent listed the conditions for the grant of an order of stay of proceedings on the authority of the cases of. Kigo (Nig.) Ltd. v. Holman Brothers (Nig.) Ltd. (1980) 5 – 7 S.C. 60; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) page 129 and submitted that applicants have no valid appeal and have not been granted leave to bring one. It is the contention of counsel to the respondent that the issue sought to be canvassed on appeal has been conclusively settled by this court and the Supreme Court in F.G.N. v. Adams Oshiomhole (2004) 3 NWLR (Pt. 860) 305 and N.E.PA. v. Edegbero (supra), as such, the proposed appeal is frivolous.
Learned counsel opined that the applicant’s intention is to further prolong the proceedings which commenced about 9 years ago. He submitted that apart from stating that they intend to appeal the ruling of the lower court and/or that their ground of appeal are premised on jurisdiction, the applicants have not stated anything that could have warranted an order staying this proceedings. He argued that in view of the established position of law on the points raised by the applicants, the issue of jurisdiction raised by the applicants is inconsequential.
Learned counsel submitted that the applicants have not shown any special circumstances. He argued that the grounds of appeal are not substantial and urged that the court answer this question in the negative.
Learned counsel submitted that the applicants’ chances of success on appeal are nil. He referred the court to the respondent’s counter-affidavit and stated that the grant of the order staying the proceedings of the court will make the respondent suffer serious prejudice.
Learned counsel for the respondent further submitted that an issue of jurisdiction is not a magic wand such that this court is not disallowed from looking into it substantially or otherwise when an applicant seeks to rely on same to frustrate the proceedings before a court as in the instant case. He referred the court to the case of Kotoye v. Sarah (1993) 5 NWLR (Pt. 296) page 710 at 727; Bamaiyi v. State (2003) 17 NWLR (Pt. 848) page 47 at 62,
Learned counsel for the respondent referred the court to paragraphs 19, 20, 21, 22, 23, 24, 26 and 27 of the counter-affidavit and submitted that the applicants raised the issue of jurisdiction with a view to delay the proceedings before the lower court and frustrate the respondent therein. Learned counsel urged the court to refuse the applicants’ prayers in their entirety and award substantial and punitive costs against the applicants.
Stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case, and therefore the general practice of the courts is that a stay of proceedings should not be granted, unless the proceedings beyond all reasonable doubt ought not to be allowed to continue. See Obi v. Elenwoke (1998) 6 NWLR (Pt. 554) page 436 at 437.
Where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of 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. However, if a successful appeal will put an end to the proceeding in the trial court, prudence dictates that a stay of proceedings be granted. See Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) page 224 at 235; Arojoye v. U.B.A. (1986) 2 NWLR (Pt. 20) page 101 at 112.
In granting an order of stay of proceedings, the court should be guided primarily by the necessity to be fair to both parties. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) page 129 at 137.
A stay of proceedings can only be granted by the court when there is no other option open to it. See: Carribbean Trading & Fidelity Corporation v. NNPC. (1991) 6 NWLR (Pt. 197) page 352.
In the exercise of its discretion to grant or refuse an application for stay of proceedings pending the determination of an appeal, the court is to be guided by the following:
i. There must be a pending appeal.
A stay of proceedings can be granted only if there is a pending appeal which is valid in law. See N.B.N. Ltd. v. N.E.T Ltd. (1986) 3 NWLR (Pt. 31) page 667.
ii. There must be an arguable appeal.
The appeal, which forms the basis of an application for stay of proceedings, must be competent and arguable on its merits. Where an appeal is frivolous, vexatious or an abuse of court process, an appellate court will decline jurisdiction to entertain the application. See Arojoye v. UBA (supra).
iii. Where the appeal will dispose of the proceedings.
Where the interlocutory appeal following an application for stay of proceedings will finally dispose of the case or put an end to the proceedings in the lower court, stay of proceedings would be granted. An example is where an appeal raises an issue of jurisdiction of the lower court. An appellate court will grant an application for stay of proceedings if on the face of the appeal the court is satisfied that there is a real issue of jurisdiction to be tried as the decision on appeal will dispose of the proceedings in the lower court. Such other issues include issues as to locus standi, propriety of cause of action, admissibility of material evidence in the case of one of the parties and appeals in which the ruling are on material issues, but manifestly wrong.
iv. Where the res will not be preserved.
Where the res will be destroyed, damaged or annihilated before the matter is disposed of, appellate court will grant stay. See Shodehinde v. Registered Trustees of the Ahmaddiyya Movement-in-Islam (1980) 1-2 SC 163.
v. Where greater hardship will be caused. The court would be reluctant to grant an application for stay of proceedings if it would cause greater hardship than if the application were refused.
vi. Where it will render the order of the appellate court nugatory. A stay of proceedings will be granted where to do otherwise will tend to render any order of the appellate court nugatory. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) page 156; Biocon Agrochemieals (Nig.) Ltd. v. Kudu Holdings (Pty) Ltd. (1996) 35 LRCN 754; (1996) 3 NWLR (Pt. 437) 373; Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) page 257; International Agricultural Industries (Nig.) Ltd. v. Chika Bros. (1990) 1 NWLR (Pt. 124) page 70.
In the instant case, the appellants/applicants have filed an application for extension of time to appeal and leave to appeal which I had earlier held in this ruling to be meritorious and same has been granted. The grant of these reliefs has paved way for exhibit 2, the notice and grounds of appeal to be competently brought for the determination of this court.
The court has been referred to paragraphs 21, 22, 23, 24, 25, 26 and 27 of the counter-affidavit in opposition to this application and same has been reproduced earlier in this ruling. However, these averments in the counter-affidavits have not effectively countered the deposition in paragraph 8 of the affidavit in support of this application which has also been reproduced in this ruling.
Exhibit 2 raises substantial and serious questions of mixed law and fact challenging exhibit 1, the ruling of the trial court on the
grounds of lack of jurisdiction of the lower court to further entertain Suit No. FHC/CS/32/1997 before the lower court.
In Dada & 4 Ors. v. International Tanners Ltd. (2005) 11 NWLR (Pt. 936) page 293 at 304, this court held per Mahmoud Mohammed J.C.A. (as he then was) that:
“It is therefore definitely the law that where a genuine issue of jurisdiction is raised by an applicant in the grounds of appeal contained in his notice of appeal, the applicant is taken to have satisfied a special or exceptional circumstance to justify granting him relief of stay of further proceedings pending the determination of an appeal.”
I am of the view that an issue of jurisdiction as raised by the appellants/applicants in exhibit 2, the proposed notice and grounds B of appeal if successfully argued is capable of disposing of the matter before the lower court.
Therefore, in order to avoid an exercise in futility if it turns out that on the determination of the appellants/applicants’ pending appeal the lower court has no jurisdiction to hear the respondent’s claim in C suit No. FHC/CS/32/1997 before Honourable Justice A.I. Chikere sitting at the Federal High Court, Abuja, it will be prudent to grant a stay of proceedings in the matter pending the determination of the appellants/applicants’ appeal in this court against the ruling of the lower court delivered on 18th July, 2006. See Dada & 4 Ors. v. o International Tanners Lid. (supra) at 307.
I am of the opinion that the issue of jurisdiction raised by the appellants/applicants in exhibit 2 is substantial and it does not seem to me to have been raised in bad faith or as a ploy to delay the proceedings in the matter before the lower court. See Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) page 710 at 727; Bamaiyi v. State (2003) 17 NWLR (Pt. 848) page 47 at 62.
The second issue is also resolved in favour of the appellant/applicants.
Consequently all the reliefs prayed for by the appellants/applicants are hereby granted.
Other Citations: (2007)LCN/2363(CA)
