Nizo (Nig.) Ltd Vs Hajiya Binta Aliyu (2005)
LawGlobal-Hub Lead Judgment Report
BA’ABA, J.C.A.
This is a motion on notice dated 28th day of February, 2005, and filed in this court same day, the appellants/applicants whose appeal is pending in this court sought for the following orders:
“An order staying proceedings in suit No. KDH/KAD/398/2003 pending before Hon. Justice Balogun of the Kaduna High Court, pending the determination of an appeal filed on 7/5/2004 by the applicants at the Court of Appeal, Kaduna Division, against the ruling of the said Justice Balogun in suit No. KDH/KAD/398/2003 on 6/5/04.”
And for such other order/orders as the court may deem fit and just to make in the circumstances of this application.”
The motion was supported by a 4 paragraph affidavit and also a 4 paragraph further affidavit.
The most relevant of these paragraphs as far as the application is concerned are paragraphs 3 of the supporting affidavit and 3(a) and (b) of the further affidavit in which it was averred on behalf of 8 the applicants as follows:
“3. That I have been informed by P.C. Chukwuma Esq. of counsel personally handling this matter for the applicants at our Kaduna office at 3A Ali Akilu Road, Kaduna, on 25/2/05, at 3pm being information he obtained in the course of handling this matter and I verily believe him as follows:
a. That in the course of hearing this matter at the High Court, counsel formerly representing the applicants, I. A. Auditz, Esq. filed a motion on notice dated 8/3/2004 praying for the dismissal of the suit on the grounds that condition precedent was not met, the court has no jurisdiction to hear the matter, the plaintiff lacks locus standi to institute the matter, the suit discloses no reasonable cause of action and is an abuse of court process.
b. That the respondent’s counsel filed a preliminary objection to the hearing of the applicant’s said motion on the ground that the issue sought to be canvassed goes to the merit of the case.
c. That the trial court heard arguments on the respondent’s preliminary objection and in a ruling delivered on 6/5/2004, upheld the respondents preliminary objection and struck out the applicant’s said motion dated 8/3/04 on the ground that the issues raised in the motion of 8/3/04 are the same in the substantive case. A copy of the said ruling is annexed hereto and marked exhibit A.
d. That being dissatisfied with the ruling of the trial court, the applicants, by a notice and grounds of appeal dated 7/5/2004 appealed against the said ruling of the trial court to the Court of Appeal, Kaduna. Copies of the said notice and grounds of appeal, receipt for filing same and receipt for deposit paid for the appeal are annexed hereto and marked exhibits B, C and D respectively.
e. That by an application dated 27/5/04, the applicants applied to the trial court for stay of proceedings in the matter pending the determination of the appeal against the trial court’s ruling of 6/5/2004.
f. That in a ruling delivered on 17/2/05, the trial court dismissed the applicants’ application for stay of proceedings. A copy of the said ruling is annexed hereto and marked exhibit E.
g. That the issues of jurisdiction and others raised in the applicants’ motion of 8/3/04 are not yet decided by the ruling of the trial court on 6/5/04.
h. That the appeal against the said ruling is pending and the record of proceedings has been compiled.
i. That the trial court in its ruling of 17/2/05 adjourned the matter to 18/4/05 for continuation of hearing.
J. That the applicants’ motion of 8/3/04 which the pending appeal is seeking to revive is challenging the competence of the suit and the jurisdiction of the trial court to entertain same.
k. That this application is brought so as not to render a positive out come of the pending appeal nugatory if proceeding in this matter before the trial court is not stayed.”
It was averred in paragraphs 3(a) and (b) of the further affidavit as follows:
“3. That I have been informed by P.C. Chukwuma, Esq. of counsel personally handling this matter for the applicants at our Kaduna office at 3A Ali Akilu Road, Kaduna on 7/3/05 at about 4pm and I verily believe him as follows:
a. That an affidavit in support dated 28/2/05 had been filed with the motion on notice in paragraph 3(f) of which the ruling delivered by the High Court on 17/2/05 dismissing the applicants’ application for stay of proceedings was said to be annexed as exhibit E.
b. That the said exhibit E was not really annexed to the aforesaid affidavit of 28/2/05 as it was not ready as at then, but is now annexed hereto and marked as exhibit E while a complete record of proceedings in relation to the applicants’ motion on notice and the High Court’s ruling is annexed hereto and marked as exhibit F.”
The respondent in opposition filed a four paragraph counter-affidavit. The most relevant of these paragraphs are:
“3. That I have been informed by Idris Mohammed, Esq. of counsel to the respondent, in our office on the 7th April, 2005 at 3.30pm and I verily believe him to be true and correct as follows:
a. That contrary to paragraph 3(a), the application of the applicant does not raise the issue of jurisdiction and the appeal thereof does not in anyway whatsoever challenge the jurisdiction of the lower court.
e. That on the date fixed for the cross-examination, the applicant brought another application for dismissal of the plaintiff’s case, on the same grounds as those set out in their notice of intention to defend (now statement of defence) after it was transferred to the general cause list.
Wherein they had averred that they would lead evidence in proof of the statement of defence.
f. That during the moving of the preliminary objection, the applicant’s counsel when asked by the lower court, the basis of jurisdiction purportedly raised, admitted as canvassed by the respondent’s counsel that the issue of jurisdiction is the summation of the 3 grounds relied upon in the notice to defend.
g. That the prayers sought by the applicant in exhibit B would not in anyway whatsoever render the appeal nugatory.
h. That the applicants have also not disclosed any good and cogent reason why the suit at the lower court should not go on”.
When the motion came up before this court for hearing on 8/5/05, learned Counsel to the appellants/applicants pointed out that he was relying on both the affidavit and the further affidavit in support of the application together with the six annextures: the ruling of the trial court of 6/5/04 being appealed, marked exhibit “A”, notice and grounds of appeal and the filing fees receipts marked exhibits “B”, “C” and “D” filing fees receipt and the certified true copy of the ruling refusing stay of proceedings marked exhibit “F,. and that he is relying on all the paragraphs of the supporting affidavit and the further affidavit as well as the six annextures.
He submitted that the sole issue for determination in this application is whether the appellants made out a case for the grant of stay of proceedings pending before the Kaduna State High Court. For the application to succeed, the applicants must show special or exceptional circumstances to warrant this application being granted by the court. He said that other consideration for the grant of the application for stay of proceedings is the need to preserve the “res” so as not to render the appeal nugatory. That also raising substantial issues of law in the ground of appeal may also constitute special circumstances that may warrant the grant of the application for stay of proceedings. Learned Counsel for appellants/applicants further submitted that the appellants/applicants have satisfied the conditions.
On the need to preserve the “res” learned Counsel for the 1st appellants/applicants pointed out that there is no dispute that the applicant has filed an appeal and the record has been compiled and served. He stated that the subject matter of the pending appeal is the refusal of the trial High Court to hear the applicants’ application to dismiss the respondent’s suit dated 8/3/04. Learned Counsel for the appellants/applicants argued that if the proceedings is not stayed it will render the appeal nugatory. It is pointed out that the grounds of appeal contained in exhibit “B” has raised substantial issues for determination in this appeal relying on Oginni v. Oloriki (1991) 4 NWLR (Pt.184) 247 at 255 – 256 paras B – D and on the issue of preserving the “res”, learned Counsel placed reliance on Oginni (supra) at page 285 paras G – B. He urged the court to grant the application.
Learned Counsel for the respondent in reply stated that a four paragraphs counter-affidavit in opposition was filed dated 8/4/05 and the respondent is relying on all the paragraphs of the counter affidavit. It is submitted by the learned counsel for the respondent that two issues are to be determined by this court – whether the applicant has filed sufficient materials before this court for stay of proceedings before the trial court. The second issue, is whether there is a valid pending appeal. He argued that on the first issue, it is important for the applicant to place substantial materials to show that the issue of jurisdiction was raised before the lower court and referred to exhibit “G” dated 8/3/04. It is further submitted by the respondent that exhibit “On does not disclose a genuine issue of jurisdiction. On the second issue, it is submitted that ground of appeal number one of exhibit “B” is a ground of fact and urged the court to refuse the application.
In reply, learned Counsel for the appellants/applicants argued that the failure of the respondents to file a counter-affidavit shows that he has admitted the averments in the affidavit and since he challenged only one ground of appeal, the remaining grounds are sufficient to surface the notice of appeal.
There is no doubt at all as to the state of the law as regards the present application. An application for stay of proceedings may be made by a party who has appealed against the interlocutory decision and seeks a stay of proceedings in the matter before the lower court, pending the outcome of or determination of the appeal as stated in Kigo (Nig) Ltd. v. Holman Bras (Nig) Ltd. (1980) 5 – 7 SC 60 at 61 and Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264. Application for stay of proceedings pending appeal may also be brought where a final judgment is appealed against.
In such situation, the proceedings that may be appealed are those relating to execution of the final judgment or other steps that relate to the execution as was the case in Shodeinde v. Registered Trustees of Ahmadiyya Movement in Islam (1980) 1-2 SC 163 and, Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 165.
The general guiding principles the court will take into consideration in the exercise of its discretion to grant or refuse an application for stay of proceedings pending the determination of an appeal are trite. The general guiding principles recognized and applied by courts is that the applicant seeking the relief for stay of proceedings pending the determination of an appeal, must show there exists special or exceptional circumstances in his case justifying the deprivation of the successful party in an interlocutory or final decision of the right to enjoy the fruits of the victory, even if temporarily, by stay of further proceedings in the matter. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 166; Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at 82 and Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt. 74) 75 at 89 where Nnaemeka-Agu, JSC. said –
“I am clearly of the view that where an appellant has exercised his constitutional right of appeal against a judgment of a lower court, and the appeal genuinely raises a substantial issue as to jurisdiction of the court below, there exists a special circumstance for which the court below or the appellate court could, and ought to grant a stay of execution. This must be the case on the premises that if the issue of jurisdiction is upheld in the appellant’s favour, the judgment of the court below and all the consequential orders flowing therefrom will be instantly, reduced into complete nullity.
It is therefore definitely the law, that where a genuine issue of jurisdiction is raised by an applicant in a ground of appeal contained in notice of appeal, the applicant is taken to have satisfied special or exceptional circumstance to justify granting him relief of stay of further proceedings pending the determination of an appeal.
As can be seen from the submission of the counsel to the parties who are holding opposite views, the resolution of the issues can easily be found by reference to the grounds of appeal and the averments in the affidavit in support and in opposition. The appellants/applicants ground of appeal number 3 reads:
“Ground 3
The trial Judge erred in law, when he ruled and struck out the motion against the jurisdiction of court without hearing it and deciding one way or the other.
Particulars of Error
(a) The question as to whether the court has jurisdiction or not has not been decided.
(b) There was no prayer by the respondent contained in his preliminary objection to strike out the motion for dismissal dated 8/3/2004 and the preliminary objection was not amended orally to include the prayer to strike out.
(c) The court granted a relief that was not sought by parties.”
Contrary to the contention of the learned Counsel for the respondent, the appellants/applicants counsel has placed before the court all the necessary materials and has shown from his ground of appeal reproduced herein that there is a genuine issue of jurisdiction which constitutes a special and special circumstances warranting the grant of his application for stay of proceedings.
A careful study of the ruling of the court exhibit “A” will show that by at least ground 3 of the notice of appeal, the appellants/applicants have raised substantial issue for determination in the appeal.
Applying the guiding principles for the grant of the application for stay of proceedings to this application, I hold that the appellants/applicants have fully satisfied the conditions for the grant of their application.
Accordingly, the application dated 28/2/05 is granted as prayed. It is hereby ordered that further proceedings in the suit No. KDH/KAD/398/2003 before Hon. Justice Balogun is stayed pending the determination of the appellants/ applicants’ appeal in this court, against the ruling of the court below delivered on 6/5/04. I award N2,000 costs to the appellants/applicants against the respondent.
Other Citations: (2005)LCN/1823(CA)
