Peoples Democratic Party (Pdp) & Ors. V. Alhaji Atiku Abubakar (2006)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
In the application filed before this Honourable Court on the 16/11/06, the appellants/applicants, the Peoples Democratic Party (PDP), Col. Ahmadu Ali (Rtd.) (National Chairman) and Chief Ojo Maduekwe – National Secretary prayed for:
(1) An order of this Honourable Court staying further proceedings in this suit pending the determination of the appeal filed by the appellants/applicants herein.
(2) And for such further order or orders as this Honourable Court may deem fit.
The application is predicated on eight grounds which by way of summary reveal that the appellants/applicants challenged the jurisdiction of the lower court to entertain the suit FCT/HC/CV/45/06 filed by the plaintiff, Alhaji Atiku Abubakar which preliminary objection was dismissed by the lower court on the 31st of October, 2006. The appellants/applicants filed a notice of appeal against the decision of the lower court on the 7th of November, 2006. An application to stay further proceedings in the main suit FCT/HC/CV/45/06 was argued and dismissed by the lower court on the 16th of November, 2006. In the substantive suit which was commenced by way of originating summons, the respondent sought for determination of the following questions:
(1) Whether having regard to the combined provisions of sections 36(1) and 224 of the Constitution of the Federal Republic of Nigeria, 1999 Article 2 and Article 16(a) 1(a) and (b) of the Constitution of the Peoples Democratic Party (PDP) ratified on December 10, 2005, the National Executive Committee has the power to suspend the plaintiff a member of the party for a period of three months.
(2) Whether having regard to the combined provisions of sections 36(1) and 224 of the Constitution of the Federal Republic of Nigeria and Article 16(b)(i)(ii)(iii) and (iv) of the Constitution of the PDP ratified on December 10, 2005 the plaintiff as a member of the party can be suspended for a period exceeding one month.
(3) Whether having regard to the provisions of Article 16(b)(iii) of the Constitution of PDP as ratified on December 10, 2005 and section 36(1) and section 6(c)(b) of the Constitution of the Federal Republic, 1999 the plaintiff can be said to have been given fair hearing by an authority whose attention has been drawn to a pending suit No. FHC/ABJ/CS/368/06 between Alhaji Atiku Abubakar v. Attorney-General of the Federation and nine others the subject-matter of which forms the fulcrum of the disciplinary action by the defendants.
(4) Whether having regard to the provisions of Article 16(b)(i)(ii)(iii)(iv) and Article 16(3) of the Constitution of the Peoples Democratic Party (PDP) and ratified on December 10, 2005 and sections 36(1) and 224 of the Constitution of the Federal Republic of Nigeria an organ of the party other than the National Working Committee can suspend the plaintiff.
(5) Whether having regard to the provisions of Article 16(b)(i)(ii)(iii)(iv) of the Constitution of the Peoples Democratic Party (PDP) and section 36(1) of the Constitution of the Federal Republic of Nigeria, the plaintiff was not entitled to be given an opportunity to present his case before he was suspended.
Thereafter the respondent sought seven reliefs by way of declaration, and an order setting aside the purported suspension as being illegal, unconstitutional, null and void.
However worthy of note is relief No. (viii) which reads:
“A declaration that the plaintiff is entitled to contest for any election of the 1st defendant.”
At the hearing of the application for stay of further proceedings, Chief J. K. Gadzama, SAN leading an array of learned counsel for the appellants/applicants cited the enabling laws, referred to the 20 paragraphs affidavit in support of the application and the annexure exhs. A-D.
The learned senior counsel canvassed that there is a pending case at the trial court which will be affected by the appeal pending before this Honourable Court – There are twelve grounds which are substantially on jurisdiction raised in the appeal and the grounds would surely terminate the appeal. The grounds are also arguable.
The appellants/applicants relied on the cases of:
Okem Enterprises (Nig.) Ltd. v. NDIC (2003) 5 NWLR (Pt. 814) pg. 492 at pg. 504
Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) page 710 at pg. 722. Unreported decision of this court in the case of Chief Okorie v. Maurice Iwu delivered on 22/11/06 in CA/A/207/M/06; Abubakar v. Unipetrol (2002) 8 NWLR (Pt. 769) pg 242 at pg. 246 SC
The learned Senior Advocate urged the court to grant the application. In his reply the learned senior counsel for the respondent – Chief Wole Olanipekun, SAN equally leading a long list of learned counsel relied on the counter-affidavit filed on 24/11/06, further counter-affidavit filed 27/11/06 and exh. B attached. The gravamen of the submission of the learned senior counsel is that the application for stay of further proceedings if granted will cause greater hardship in a situation where time is of essence to the case before the lower court. Further that the application for stay of further proceedings was brought in bad faith going by the conduct of the case by the learned counsel for the applicant before the trial court as per the attachment of the court proceedings to the further counter-affidavit.
More important still, the res in this case will terminate on the 11th of December, 2006. The issue of jurisdiction which forms the crucial factor in the grounds for the application for stay can be raised at any stage of the proceedings, but it can not be raised as a camouflage, it must be genuine. There is no constitutional right to stay proceedings, which by its very nature is meant to frustrate speedy hearing of cases – all courts must therefore discourage as much as possible interlocutory applications to stay proceedings. Each case has to be considered on its own merit-the case before the trial court is time-bound. This Honourable Court is urged to refuse the application. The respondent cited sixteen cases on the list of authorities filed on 30/11/06 – and relied particularly on the cases of Hon Inakoju & Ors. v. Senator Ladoja & Ors. an unreported ruling of the Supreme Court in suit No. SC/112/2006 (reported in (2006) 18 NWLR (Pt. 1012) 667) delivered on the 6th of July, 2006.
Owena Bank (Nig.) Plc v. Olatunji (1999) 13 NWLR (Pt. 634) pg.218 at 231
Obi v. Elenwoke (1998) 6 NWLR (Pt. 554) pg. 436 at pg. 442 para. G.
I have given a careful and meticulous consideration to the submission of learned senior counsel to both parties.
Parties are ad idem, there is therefore consensus that the court has a discretion to grant or refuse a stay of proceedings – but such discretion must be exercised both judicially and judiciously and not arbitrarily – while taking into consideration the competing rights of the parties to Justice and equity.
Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5 -7 SC 60; United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) pg. 195
All courts of record either trial or appellate appreciate the fact that an application for stay by its very nature delays speedy hearing of a case which has a negative effect of frustrating anxious plaintiff – whose case might turn out to be unjustifiably delayed. The courts are wary and jealously guard the exercise of their discretion and power in favour of granting an application which can be used by an unscrupulous applicant to delay trial. The court would not grant a stay of proceedings unless it is rest assured that a case ought not to go on. The exercise of discretion to grant stay of proceedings will be prompted by the peculiar circumstance of each case in which all the factors for and against the grant of stay proceedings must be carefully and meticulously weighed.
Ayeni v. Eledo (2005) 12 NWLR (Pt. 939) pg 368.
In the application under consideration the applicant relied on the issue of jurisdiction. The learned trial Judge in its decision held that it has jurisdiction to adjudicate on the suit FCT/HC/CV/45/06 before the lower court. It is a decision of court – which shall subsist until an appellate court rules to the contrary.
I have looked at the competing affidavit filed in the application under consideration particularly the notice of appeal and the ground of appeal. It is trite and there are plethora of authorities to support the contention that an application for stay of proceedings can only be granted where special and exceptional circumstance exist particularly a genuine issue of jurisdiction raised in the pending appeal.
In short the issue of jurisdiction should not be used as a camouflage neither should it be seen as a magic wand to conjure a stay of proceedings. The court will grant a stay of proceedings where the issue of jurisdiction is genuinely raised and will have an effect of terminating the case after an appeal is heard and determined.
Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5 – 7 SC 60;
Arojoye v. UBA (1986) 2 NWLR (Pt. 20) pg. 101;
Okem Enterprises (Nig.) Ltd. v. NDIC (2003) 5 NWLR (Pt. 814) pg. 492;
Eze v. Okolonji (1997) 7 NWLR (Pt. 513) pg. 515
Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt. 16) pg. 264
Owena Bank (Nig.) Plc v. Olatunji (1999) 13 NWLR (Pt. 634) pg. 218.
In the instant case, granting an order of stay of proceedings based on the issue of jurisdiction is premature. In order to determine whether an issue of jurisdiction is genuinely raised this court examined the grounds of appeal and the whole proceedings which gave rise to this appeal.
The learned respondent’s counsel referred to the fact that the res in this case will terminate and expire on the 11th of December, 2006. Paragraph 12 sub-paragraph (v) of the counter-affidavit to notice of motion dated and filed November 16, 2006 reads:
“That the essence of the plaintiff’s case is to assert his right to participate in the forth coming congress and conventions which will culminate in determining the flag bearers of the defendant in the 2007 elections.
Paragraph VI “That time is of essence in this suit as the plaintiff’s claim will be overtaken by events by the end of December 2006.”
Under the questions raised in the originating summons one of the reliefs sought reads paragraph VIII:
“A declaration that the plaintiff is entitled to contest for any election of 1st defendant.”
From the foregoing it is apparent that the case of participation in any election is not raised afresh in this application.
I cannot but come to the conclusion that time is of essence in this application.
I find convenient sanctuary in the unreported case of Hon. Muyiwa Inakoju & Ors. v. Senator Rashidi. A. Ladoja & Ors. (2006) 18 NWLR (Pt. 1012) 667 where his lordship Katsina-Alu, JSC held that:
“Where time is of the essence of a case before a court of law, the court will be most reluctant to grant an application for stay because such an application is antithesis to the speedy hearing of the case.”
In the circumstance of this case where time is equally of essence it requires that Justice be evenly handed down to meet the competing rights and interest of both parties.
If the suit at the lower court is terminated by the outcome of the appeal the appellants/applicants stand to be compensated in costs since, meanwhile they have not suffered any hardship or prejudice whereas the respondent will suffer a greater hardship in view of time constraint.
In summary, this court shall exercise its discretion in favour of refusing the application for stay of proceedings. It is the order of this court that –
(1) The application for stay of proceedings having been refused is accordingly struck out.
(2) Hearing in this appeal CA/A/212/M/06 pending before this court be accelerated.
Other Citations: (2006)LCN/2109(CA)
