Tomas Nigeria Limited & Ors V. Honourable Minister of Works and Housing & Ors (2000)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

Th

e Honourable Minister of Works and Housing has filed an appeal against the ruling of the trial Judge delivered in suit No.FHC/ABJ/CS/104/2000 on the 30th of June, 2000.
He has now filed a motion praying for:
“AN ORDER directing a departure from the rules of this honourable Court so that the appeal filed may be heard and determined on the bundle of documents filed herein and marked as ‘Exh. MWH 1’ in the affidavit of Afam Osuigwe Esq., and such additional documents as the parties be ordered or advised to file.
AN ORDER abridging the time for filing of briefs of argument in this matter.
An order for accelerated hearing of the appeal.
And SUCH FURTHER or other orders as this honourable Court may deem fit to make in the circumstances.”

The learned Counsel for the 1st-25th respondents opposed the application and this court treated the motion filed in opposition to the application as a notice of preliminary objection and after hearing the parties delivered its ruling on the 13/11/2000,whereat this court ruled on the preliminary objection and rejected it.
The learned Counsel for the 1st-25th respondents filed a notice of appeal against the ruling and has now filed an application for:-
“An order staying the proceedings of the Court of Appeal, Abuja in respect of suit No. CA/A/82/2000 pending the determination of the appeal to the Supreme Court.
And for further or other orders as the honourable Court may deem fit to make.”

The court decided to hear the two applications together one after the other. But we decided to hear the respondent’s application for stay of proceedings first. Since if it succeeds, there would be no need to discuss the appellant’s application praying for an order of departure from the rules of the court. The 26th and 27th respondents did not appear in these proceedings.

The learned Counsel for the applicant, Chief Etudo premised his arguments on the provisions of Order 3 rule 3(i), of the rules of this court and under the inherent jurisdiction of the Court. In support of the motion, there was filed an affidavit of 10 paragraphs and four annextures. Exhibit R is the notice of appeal against the ruling of this court rejecting the preliminary objection. Exhibit S is the certified copy of the record of proceedings of this court of the 13th of November, 2000. Exhibit T is a copy of Bamaiyi’s affidavit sworn to on the 14th day of November, 2000. It is alleged that if the proceedings of this court is not stayed, this court will proceed to dismiss the claim of the applicant without granting the applicant fair hearing. The learned Counsel informs the court that he will make references to other motions filed in respect of this matter while arguing this motion for stay of proceedings; i.e. he will make reference to application dated 10/11/2000 and the respondent’s notice of appeal filed on the 5/7/2000. Learned Counsel further relies on the affidavit filed on the 28/11/2000 in reply to the counter affidavit filed against this motion on the 17/11/2000.

It is submitted that, the reference to the notice of appeal of 5/7/2000 is to recognise that the respondent is seeking to, by the appeal, to cause the dismissal of the claims of the applicant in the suit now pending before the trial Court. It is argued that, should this court proceed with the respondent’s application for departure, the appeal filed by the applicant in the Supreme Court would render the decision of the Supreme Court in vain. And the status quo would be impossible to be maintained. If the appeal is heard based on the proposed documents and if the appeal succeeds, the rights of the applicants will be prejudiced by third parties acquiring the toll plazas. Learned Counsel referred to and relied on Kotoye v. Saraki (1993) 5 NWLR (pt.296) 710 Nzeribe v. Dave Engineering (1994) 8 NWLR (Pt.361) 124.

The learned senior Counsel for the respondents, Chief Chigbue on the other hand submitted that an order for staying proceedings is not granted as a matter of course. It is only granted when it is established that there are exceptional circumstances which has not been made in the instant case. Learned Counsel referred to the counter-affidavit and the case of Akilu v. Fawehinmi No.2 (1989) 2 NWLR (pt.102) 122. It is argued further that, greater injustices will be done to the appellants if an order of stay of proceedings to stop the respondent from facilitating the hearing of its appeal is made. It is further submitted that, the applicants appeal to the Supreme Court is frivolous. The Grounds of Appeal contain questions of mixed law and fact for which no leave to appeal has been sought and obtained to appeal against an interlocutory decision. Vide section 233(2) of the Constitution. See Shugaba v. UBN Plc (1999) 11 NWLR (pt. 627) 459 at 478. It is further submitted that the applicant has filed a counter-affidavit to the application for departure and is accordingly estopped from asking for stay of proceedings. It is again submitted that, all the facts contained in the two affidavits filed by the applicant are not relevant to the application for stay of proceedings.

At this juncture, the learned Counsel for the applicant, when called upon to reply on questions of law raised by the respondent’s Counsel, asked for an adjournment, which was refused by the court. The learned Counsel for the applicant stated that he was not in a position to address the court. This court took it that he had no further address to make.

Now, the res which is sought to be stayed is simply an application by the respondent for leave of court to order departure from the rules of court in relation to the preparation of the records of the trial Court in an interlocutory appeal. As mentioned above, this court rejected an objection raised by the applicant, the learned Counsel filed an appeal against the ruling of this court and has now applied for staying proceedings of the court pending the determination of the appeal by the Supreme Court. It is trite law that all courts of record, whether trial or appellate, possess “inherent power” to grant stay of further proceedings pending the determination of an appeal filed in a case, so as to preserve the subject matter of the litigation. The power is discretionary and depends on the facts and circumstances of each case. Thus, the grant of an order staying proceedings is not done as a routine, the courts will not grant stay of proceeding where the circumstance of the case is such that the exercise of their discretion would cause greater hardship and inconvenience to the other side. See Kigo v. Holman (1980) 5-7 SC 60.

Similarly, stay will not be granted where the appeal filed is frivolous and sham. The principles to be borne in mind when considering an application for stay of proceedings are these:
(a) The action must be shown not only that it might fail, but that it cannot possibly succeed or that for some reasons it ought not go on.
(b) The action is shown to be frivolous, vexatious or an abuse of the process of the court
(c) No cause of action disclosed.
(d) There is the need to preserve the res from being destroyed and consequently, prevent undue hardship.”
In each case, the court must be satisfied that a special circumstance is present and real. See Gomwalk v. Okwuosa (1996) 3 NWLR (Pt.439) 681, Okorodudu v. Okoromadu (1977) 3 SC 21., Hallmark Bank Ltd. v. Akaluso (1995) 5 NWLR (Pt.395) 306 at 316.

In an application for stay of proceedings, it is incumbent on the applicant to show that in the circumstances of the case it would be unjust and inequitable to refuse the application. See Akilu v. Fawehinmi (supra) FCMB v. A.I.B (Nig.) Plc (2000) 8 NWLR (Pt.667) 42 at page 51 Galadima, J.C.A. said:-
“I will now consider briefly the principles governing stay of proceedings pending appeal. In order to enable this court to exercise its discretionary power to grant application for stay of proceedings, the appeal must be competent and arguable on its merits. Other considerations include the preservation of the res. See Shodeinde v. Registered Trustees of Ahmadiyya Mov. (1980) 1-2 SC 163, Kotoye v. Saraki (1993) 5 NWLR (Pt.296) 710. This court will also consider, whether the jurisdiction or competence of the court is challenged including the ouster of the court’s jurisdiction…whether the action is an abuse of the process of the court or is frivolous or vexatious, whether the granting of the application will finally dispose of the entire case. Arojoye v. U.B.A. (1986) 2 NWLR (Pt.20) 101”

The principle canvassed by the learned Counsel for the appellant is that the res will be prejudiced and that the Supreme Cournt will be put in a position of helplessness. It is therefore, necessary to examine, whether the appeal is on the face of it competent. Our ruling, the subject of the appeal, is interlocutory, in that it did not determine the rights of the parties on the merits. What we decided was simply to say that the application filed for departure from the rules of the Court is competent, since the grounds for the application can be gleaned from the motion itself, such discretion, like other judicial discretions must be exercised judicially and judiciously by having regard to all the circumstances of each case. It must be exercised in good faith uninfluenced by irrelevant considerations and not arbitrarily or illegally or upon misconception of the law or under misconception of the facts.

In my view, the application for staying proceedings of this court pending appeal to the Supreme Court in this case was not done in good faith. It was done to further delay the hearing of an application simply for departure from the rules of court in relation to and concerning procedural steps, and not for the purpose of determining any rights of the parties. In my view, there is no res to be destroyed by the appeal and the status quo can always be restored if the Supreme Court decides on the incompetency of the application. I accordingly, refuse to order stay of proceedings of this court in this matter pending the appeal.
The matter shall proceed accordingly.

Other Citations: (2000)LCN/0911(CA)