Wema Bank Plc V. Mrs. Mosunmola Tonade (2008)
LawGlobal-Hub Lead Judgment Report
HON. JUSTICE REGINA OBIAGELI NWODO, J.C.A.
The Applicant filed a Motion on Notice on 2 November, 2006 brought pursuant to Order 3 Rule 3(1) & (3) of Court of Appeal Rules 2002 and under the inherent jurisdiction of this court seeking for the following orders:
1. AN ORDER of this honourable court Staying Further Proceedings in Suit No. LD/970/99 pending before Hon. Justice Lufadeju of the Lagos High Court pending the hearing and determination of the Appellant/Applicant’s Appeals against the Rulings of the trial court delivered on 15th November, 2005, and 10th March, 2006.
2. AN ORDER of this honourable court consolidating the Notice of Appeal dated 28th November, 2005 and filed the same day with the Notice of Appeal dated 20th March, 2006 and filed the same day.
3. AND FOR SUCH FURTHER or other orders as this honourable court may deep fit to make in the circumstances.
The application is founded on the following grounds:
(a) The Appellant/Applicant has filed valid Notices of Appeal against the Rulings of the trial court delivered on 15th November, 2005 and 10th March, 2006 attached hereto as Exhibits 101 and 102.
(b) Substantial issues of law regarding the admissibility of the oral and documentary evidence struck out by the trial court have been raised in the Grounds of Appeal in both Notices of Appeal.
(c) The issues raised in these Appeals are recondite and arguable.
(d) The striking out of paragraphs 23-27, 31-40 of the Affidavit Evidence of D.W.3 together with Exhibits B09, B, BOW(a) attached thereto as well as paragraphs 7-12 of the Further Affidavit Evidence of DW3 together with Exhibits B014 – BO16 attached thereto is wrongful.
(e) The decision of this honourable court will affect the final outcome of this case before the High Court.
(f) The evidence struck out by the High Court is crucial and material to the case of the Appellant/Applicant and their rejection will incapacitate the Appellant/Applicant from proving its case before the High Court particularly its counterclaim.
(g) If proceedings are not stayed before the trial court pending the determination of the Appeal, the decision of this honourable court will be rendered nugatory.
(h) If proceedings before the trial court are not stayed, gross miscarriage of justice will be occasioned to the Appellant/Applicant.
(i) The two appeals sought to be consolidated arose from the same suit and in respect of the same issue.
(j) The Honourable Court does not act in vain.
(k) The Appeal has a good chance of success.
In support of the application is a 9 paragraph affidavit deposed to by JAMES OLEKWU a Litigation Manager in the law firm of Dorothy Ufot & Co. Exhibited in this affidavit are Exhibit JO1 to JO4. J01 is a Certified Copy of Notice of Appeal dated 28 November, 2005. Exhibit 102 is a Notice of Appeal dated 20 March, 2006. Exhibit J03 is the Treasury Receipt dated 28 November, 2005 and Exhibit J04 is also Treasury Receipt with a date that is not clear.
The Applicant filed 4 further affidavits, the first one filed 13 November, 2006, then 18 June, 2007, 17 September, 2007 and 20 February, 2008 respectively. Applicant also filed a 25 paragraph affidavit of urgency on 25 February, 2008 deposed to by Chimaobi Atulomah exhibited as Exhibit JO1 to JO10.
The Respondent Mrs. Mosunmola R. Tomade in opposition filed a counter affidavit of 6 paragraphs deposed to by NIYI OGINNI.
The Respondent commenced a suit in the High Court of Lagos against the Appellant. The Applicant counter claimed in that court, the Respondent concluded its evidence and closed her case. Thereafter the Appellant commenced his Defence and called two witnesses. The DW3 filed his affidavit Evidence and further affidavit Evidence pursuant to Order 1 Rule 1 and Order 3 Rule 2(1) (c) & (d) of High Court of Lagos State (Civil Procedure) Rules 2004 on 9 May, 2005 and 14 July, 2005 respectively. The Respondent filed Motions on Notice dated 9 June, 2005 and 16 December, 2005 praying the Honourable Court to strike out paragraphs 23-27, 31-40 of the affidavit Evidence of DW3 Mr. Biodun Ogunlade dated 9 May, 2005 and Exhibits B9 and B10 attached thereto as well as Paragraphs 7-12 of further affidavit of DW3 dated 14 July, 2005 on grounds that they were not pleaded. The Trial Court delivered its Rulings on the motions on notice on 15 November, 2005 and 10 March, 2006 respectively. The court granted the application and struck out all the paragraphs as prayed. Consequently, the Respondent, dissatisfied with the Ruling, filed its Notices of Appeal dated 28 November, 2005 and 20 March, 2006. The notices were exhibited as 101 and 102. The Appellant now seeks from this Court a stay of proceedings on Suit No. LD/970/99 pending in High Court of Lagos State and consolidation of the two Notices of Appeal.
Learned Counsel to the Applicant Mrs. Dorothy Ufot in moving the Motion on Notice dated 2 November, 2006 relied on the 9 paragraphs affidavit in particular on paragraphs 4 to 7. She stated they filed Appellants brief to show they are serious in pursuing the appeal. Mrs. Ufot submits that the evidence struck out by the trial court were wrongly struck out. She relied on the case of Saraki v. Kotoye (1992), 9 NWLR (Pt. 264) pg 156 at pg 202 paragraph B to D page 201. She urged the court to grant the application.
Mr. A. Adegborioye for the Respondent opposed the application relying on all the paragraphs of the counter-affidavit filed 2 February, 2007, he submits that a stay of proceedings can only be granted in respect of a competent appeal. He contends that the Notice of Appeal filed is incompetent and invalid and cannot be the basis on which the court can grant a stay of proceedings. He submits the grounds of appeal contained in the Notices of Appeal cover mixed law and facts and that the applicant requires leave of court to file appeal on mixed law and fact, since he is challenging the evaluation of facts. He referred to the Notice of Appeal of 28 November, 2005 and contends it is on law and fact thus the appellant requires leave of court. He referred to the case of Excel Plastic Industry Ltd. v. First Bank of Nig. Plc (2005), 37 Weekly Report of Nigeria pg. 109, pg. 122, The learned counsel referred the court to S.241(1) (b) and S.242(1) of the 1999 Constitution. He contends that the grant of the application for stay will cause hardship in a matter that is already Nine years pending. He submits that if stay is granted and it will cause hardship the law is that it will be refused. He contends the Applicants are challenging the lower courts failure to admit evidence and that the Court of Appeal has held that where the appeal is challenging the rejection of evidence at the lower court it does not amount to a ground of appeal in which court should stay proceedings at the lower court when the appeal can be taken together with the final appeal. He referred to Mobil Oil Nig. Plc v. Koria Energy Ltd. (2004), 8 NWLR pt 874 at 127 & 132.
He further submits that the court cannot consolidate incompetent Notices of Appeal. He urged the court to refuse the application with cost.
Mrs. Ufot in her reply on point of law submits that rejection of Evidence is a question of law governed by law of Evidence that is the Evidence Act She contends that the complaint of the Appellant is on rejection of evidence which is a pure question of law and that being an interlocutory appeal leave is only required if ground of appeal is on law and fact only. She submits Justice ought not to be sacrificed on the alter of speed.
I have carefully considered the averments in the copious affidavit and further affidavits of the Applicants, the counter affidavit and the submissions of the respective learned counsels. I have equally referred to the authorities cited.
The Applicant seeks 2 main reliefs from this court. First is the prayer for stay of proceedings and second is the prayer seeking Orders of Consolidation of the Notices of Appeal.
It is trite law that this court has the inherent power to stay the proceedings in the lower court. (See United Spinners Ltd. v. C. B. Ltd. (2001) 14 NWLR (Pt.732) SC 195 pg.211). The nature of the first relief sought by Applicant requires the exercise of this court’s discretionary power.
It is settled law that the power to grant or not to grant an application for stay of proceedings pending appeal is discretionary. However, this discretion must be exercised judicially and judiciously. This discretion can only be said to be so exercised when the materials placed before the court are duly considered. The order for stay of proceedings is a serious and fundamental interruption on the right of a party to prosecute his case without any unnecessary delay. An Applicant for such an order must therefore show that the continuation of the proceedings in the peculiar circumstances of that case would be unreasonable.
I can never overemphasis the fact that applications for stay of proceedings of the lower court requires utmost care and caution in granting or refusing same. This is because stay of proceedings is grave as it amounts to a fundamental disruption of the right of the other party to have his case heard and disposed off within a reasonable time. In effect it is an antithesis to a speedy hearing of the case. Thus it should rarely be granted except in exceptional circumstances. This Court and the Apex Court have evolved in a line of judicial authorities, some guiding principles upon which applications for stay of proceedings could be considered and granted or refused. These guiding principles are not exhaustive but merely serve as beckons to guide the courts. Each case has its own particular facts and circumstances.
Basically the principles to guide a court on whether or not to exercise its discretion to either grant or refuse stay of proceedings pending appeal have been set out in a catalogue of decided cases by the Appellate courts. They include but are not restricted to the following guidelines:
(a) The first consideration is that there must be a competent appeal pending. The court will not consider an application for stay of proceedings in respect of an invalid appeal. See Olawunmi v. Alhaji Mohammed (1991) 4 NWLR (Pt.186) 516; N.B.N. Ltd. v. N.E.T. (1986) 3 NWLR (Pt.31) 667 and The Provost, Alvan Ikoku College of Education v. Amuneke (1991) 9 NWLR (Pt. 213) 49.
(b) The pending appeal must be arguable. This is decided by considering the grounds of appeal filed. At this stage the applicant need not prove that the appeal will succeed. Once an applicant could show that the appeal is arguable, a stay could be granted. See State v. Ajayi (1996) 1 NWLR (Pt. 423) 169; Carribean Trading & Fidelity Corporation v. NNPC (1991) 6 NWLR(Pt. 191)352.
(c) Where a pending appeal is frivolous or oppressive and not arguable in law, the application will be refused. See General Oil Ltd. v. Oduntan (1990) 7 NWLR (Pt.163) 423.
(d) The granting of an application for stay of proceedings is not a mere formality. The applicant must establish that there are special and exceptional circumstances to warrant the grant of the application. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122,
(e) In an application for stay of proceedings, the court must consider the rights of both the applicant and the respondent i.e, the court will take into consideration the justice and equity of the application, for example, the court will not grant an application for stay of proceedings if it will cause greater hardship than if the application is refused. See Arojoye v. UBA (1986) 2 NWLR (pt. 20) 101.
(f) Where the issue of jurisdiction is raised in the pending appeal, the court should grant stay of proceedings. However, the issue of jurisdiction must be genuinely raised.
(g) Where an action is an abuse of judicial process, an application for stay of proceedings should be granted. See Mrs. Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt. 16) 264.
(h) If the interlocutory order will finally dispose of the case, a stay of proceedings would be granted. However, a stay of proceedings will not be granted where the interlocutory order will not dispose of the case.
(i) Where the grant of an application for stay of proceedings will unnecessarily delay and prolong the proceedings, it will not be granted.
Furthermore, in an interlocutory appeal where the complaint of the appellant can be conveniently dealt with together with an appeal against the final decision of the court, an application for stay of proceedings should be refused. See Mobil Oil (Nig) Plc v. Kena Energy Ltd. (2004) 8 NWLR (pt. 874) 113 A. Therefore from the above principles the onus in an application for stay of proceedings is on the applicant to show that the proceedings must be stayed pending the determination of the appeal by placing sufficient materials before the court to enable it exercise its discretion in his favour.
Learned Counsel to the Respondent has submitted that there are no competent notices of appeal before the court on the grounds that the ground of appeal as contained in the Notices of Appeal are of mixed law and facts for which leave of court is required. One of the principles guiding grant of application for stay of proceedings pending appeal is that there must be a competent appeal. The jurisdiction of this court to adjudicate on any matter on appeal brought before it is statutory and guided by the rules of the court. Once there is failure by any applicant or appellant to comply with the statutory provision or requirement prescribed by the relevant law under which such appeals may be competent and proper before the court, the court will be deprived of power or jurisdiction of proceeding with the matter.
Mr. Adeborioye rightly submitted that an order for stay of proceedings before a lower court cannot be granted unless there subsists a competent notice of appeal. The Court of Appeal and Supreme Court in a catalogue of cases have so decided. See Intercontractors v. UAC (1988) 2 NWLR (Pt. 76) pg 303. Kabo Air Ltd. v. INCO BEV Ltd. (2003) 6 NWLR (pt. 816) CA 323. The question that arises in the instance case is whether the Notices of Appeal filed on 28 November, 2005 and 20 March, 2006 respectively are competent and valid to sustain a grant of stay. In determining whether a ground of appeal alleges an error in law or fact, it is relevant and crucial to construe the ground of appeal together with the particulars of error alleged for the classification of that ground as a ground of appeal. For purposes of clarity and elucidation I will reproduce relevant portions of the two Notices of Appeal.
The Notice of Appeal exhibited as exhibit 101. The ground of appeal therein reads as follows:
“GROUNDS OF APPEAL:
i. The learned trial judge erred in law when she struck out paragraphs 23 to 27, 31 to 40 of the Affidavit Evidence of DW3 – Biodun Ogunlade sworn to on 9th May, 2005 and Exhibits 89 and B10 attached thereto holding that the facts were not pleaded.
PARTICULARS OF ERROR
(a) The facts relating to the serious irregularities and misconduct by the Respondent were pleaded in the Statement of Defence and Counter-Claim.
(b) A party to an action is only required to plead facts and not the evidence by which those facts are to be proved.
(c) The evidence and documents especially Exhibits B9 and B10 were relevant in the proceedings, and facts relating to same were pleaded by the Defendant/Appellant.
(d) Paragraphs 39 and 40 of the Affidavit Evidence of DW3 and Exhibits BO10 and BO10A fall under category of facts and documents that do not require to be specifically pleaded to be admissible as was held by the Supreme Court in the case of Odunsi v. Bamgbala (1995) 1 NWLR (Pt.374) 641 and the Court of Appeal in Hasidu v. Gaje (2003) 15 NWLR (Pt.843) 352.”
The second Notice of Appeal exhibited as Exhibit J02. The ground of appeal therein reads as follows:
“GROUNDS OF APPEAL:
(i) The learned trial judge erred in law when she struck out paragraphs 7 to 12 of the Further Affidavit Evidence of DW3 – Biodun Ogunlade sworn to on 14th July, 2005 and Exhibits BO14, BO15 and BO16 attached thereto on the ground that no facts were pleaded in support of the paragraphs and exhibits.
PARTICULARS OF ERROR
(a) In law a party is only required in his pleadings to plead facts and not the evidence by which those facts are to be proved.
(b) Facts relating to serious misconduct and irregularities perpetrated by the Plaintiff/Respondent herein were pleaded in the Statement of Defence of the Defendant/Appellant.
(c) Paragraphs 7 and 8 of the Further Affidavit Evidence of DW3 and Exhibit BO14 annexed to the said Further Affidavit Evidence of DW3 are admissible in Evidence, the depositions therein being supported by averment contained in paragraphs 10, 11, 12, 13 and 14 of the Defendant/Appellant’s Statement of Defence and Counterclaim dated 28th September, 1999.
(d) Paragraphs 9, 10, 11 and 12 of the Further Affidavit Evidence of DW3 and Exhibits BO15 and BO16 attached thereto are admissible in evidence, the depositions being supported by averment contained 15, 19, 23 and 24 of the of Defence and Counterclaim in paragraphs 6, 7, 8, 14, Defendant/Appellant’s Statement dated 28th September, 1999.
(e) Exhibits BO14, B015 and BO16 are evidence of misconduct and irregularities perpetrated by the Plaintiff/Respondent while she was on the employment of the Defendant/Appellant.”
The Appellant in the two Notices of Appeal ex-facie explicitly stated that the learned trial judge “erred in law” when she struck out paragraphs 23 to 27, 31 to 40 of the affidavit of DW3 and Exhibits 89 and B 10 on grounds that the facts were not pleaded. Appellant’s complaint on the face of the ground of Appeal is on law. It is however the contention of the learned counsel to the Respondent that the ground is not solely on law but on grounds of law and fact. There is no doubt that generally the term “erred in law” is not a conclusive classification. The christening of the grounds of appeal by use of phrases such as “error of law” “misdirection in law” as usually used in some notices is not conclusive as to hold the ground is solely on law.
It is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal and the particulars.
In Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) SC 299, the Supreme Court made a distinction between an appeal on question of law and an appeal on question of fact and held:
“An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such question as to whether facts admitted or held proved justify or permit by the rules of law a particular decision or disposal of the case before the court”.
Furthermore in Ogbechie v. Onochie Eso J.S.C. (1986) 2 NWLR (Pt.23) SC 484 had this to say: “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already provided or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
In Metal Const. (W.A.) Ltd. v. Migliore (Supra). Hon. Justice Karibi Whyte J .S.C. had this to say summerising the general principles on the intricate issues of law and fact:
“Question of law is capable of three different meanings. First, it could mean a question the court is bound to answer in accordance with a rule of law … Concisely stated a question of law in this sense is one predetermined and authoritatively answered by the laws. The second meaning is as to what the law is. In this sense an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter… A question of the construction of statutory provision falls within this meaning. The third meaning is in respect of those questions which normally answers questions on law only. Thus, any question which is within the province of the Judge instead of the jury is called a question of law, even though in actual sense it is a question of fact. The cases which readily come to mind are the interpretation of documents. Often a question of fact, but is within the province of a judge. Also the determination of reasonable and probable cause for a prosecution in the tort of malicious prosecution. Which is one of fact, but is a matter of law to be decided by the judge”.
On what a question of fact is the learned Justice stated thus: “Like of law question of fact has more than one meaning.
The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the judge is a question of fact”.
In CCCTCS Ltd. v. Ekpo (2008) 6 NWLR (Pt. 1083) SC 362 the Supreme Court on criterion of distinguishing whether a ground of appeal is that of law or fact, Muhammad I.S.C. in pg. 407 – 409 set out the distinction as follows:
1. “The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted.
2. Where a ground complains of a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law:
3. Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact.
4. A ground which raises a question of pure fact is certainly a ground of fact.
5. Where the lower court finds that particulars events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law.
6. Where admissible evidence has been led, the assessment of that evidence is entirely for that court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
7. Where the lower court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears is ordinary meaning the ground is that of law.
8. Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
9. Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law.
10. Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if siesed of the issue, that conclusion is not an error in law.
11. Where a trial court fails to apply the facts which it has found correctly to the circumstance of the case before it and there is an appeal to a court of appeal which alleges a misdirection in the exercise of the application by the trial court, the ground of appeal alleging the misdirection is a ground of law not of fact.
12. When the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of law.
13. Where the appeal court interferes in such a case and there is a further appeal to a high Court of Appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact.
14. Aground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal).”
(Underlining mine)
The relevance of the distinction is that it governs the exercise of the right of appeal under S.241 of the 1999 Constitution of the Federal Republic of Nigeria.
I will now apply the principles in the stated Supreme Court authorities to the present case.
A critical perusal of the particulars of Error filed as Exhibit JO1 reflects that the Appellant/Applicant’s complaint is that the DW3 affidavit evidence and documents: Exhibits B9 and B10 rejected were pleaded but the lower court did not admit same in evidence, the contention further is that the Exhibits not pleaded were not required to be pleaded. (See Odunsi v. Bangbala (1995) 1 NWLR (Pt.374) 641 and Court of Appeal in Hersidu v. Goje (2003) 15 NWLR (Pt. 843) (352).
The ground of appeal in the two notices clearly questions the true rule of law on admissibility of the documents and evidence which applicant had stated in his ground of appeal that were refused. The question requires a construction of the statutory provision on admissibility of evidence and the provision of the Rule of Court on pleadings. In this case the particulars of appeal touches on the question as to what the true rule of law is on such issues of admissibility. A question on the admissibility of a document falls within question of law. It is not a question of discretion it is a question of law. The grounds of appeal stated in Exhibits JO1 and JO2 are grounds of law alone.
I agree with Mrs. Ufot that the Grounds of Appeal are grounds of law not law and facts. Therefore, S. 241(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria applies. S.241(1)(b) provides: “An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following:
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings”.
The applicant in this case does not require leave of the court to file the notices of appeal. Consequently, the contention of the learned counsel to the Respondent that the Notices of Appeal are incompetent cannot be sustained. The Notices of Appeal dated 28 November, 2005 and 20 March, 2006 are competent.
Having found that the Notices of Appeal are competent by basis of its classification as ground of law, the next issue to consider is whether the applicant has established that there are special and exceptional circumstances to warrant the grant of the application for stay of proceedings. In other words has Applicant shown it is unreasonable to refuse this application. In paragraph 12 of the applicant’s affidavit of urgency the deponent averred that the lower court is determined to go on with the hearing of the case despite being aware of the pendency of Appellant’s application for stay of further proceedings. In paragraph 14 of the same affidavit, applicant averred that there is a real likelihood that the lower court will strike out the evidence and the document in another motion. In paragraph 15, Deponent averred that applicant faces an imminent danger of its inability to substantiate its case at all if the evidence is struck out. In paragraph 16, deponent avers to real danger of serious injury to the Applicant if stay is not granted and in paragraph 19, that without the evidence and the documents rejected by the lower court, that the Respondents continuation of the trial will be most prejudicial to him.
The averments on the affidavit of urgency and the affidavit in support have not disclosed any special circumstances to warrant a grant of stay of proceeding. I refer in particular to the averments in paragraph 14, 15, 16 of the affidavit of urgency. Deponent did not aver to facts rather he stated what may happen. These averments are mere presumptions of what will happen. Furthermore, there is averment in the same affidavit that the “Res” in this case will be destroyed. There is no affidavit evidence on how this will happen, hence the urgent need to stay proceedings and preserve the “Res”. The case in the lower court has reached the stage of Defence as reflected in the affidavit evidence which contains facts showing that the Defence has commenced evidence and reached the stage of the testimony of DW3. The notice of appeal filed by the applicant is an interlocutory appeal bordering on admissibility of evidence. There is no reason why the interlocutory appeal cannot be taken after final decision of the case. The attitude of this court as shown in a plethora of cases is to refuse a stay of proceedings in such circumstances. This has become a standard principle that once an interlocutory appeal will not dispose of the case but will unnecessarily delay and prolong proceedings it will not be granted.
In the instant case the right of the Applicant to be heard on his notice of appeal on grounds of admissibility of evidence at this stage by ordering a stay is outweighed by the right of the Respondent that the case be determined expeditiously. I have gone through the averments of the Respondent in their counter affidavit, their contention of hardship is more persuasive bearing in mind that the suit in the lower court was commenced in 1999.
The applicant has reached the stage of Defence he has not shown any exceptional circumstance to warrant a grant of stay of proceedings at this stage of mid Defence in the lower court.
The Apex Court in Abubakar v. Chuk’s (2008) All FWLR (Pt.408) SC 207 once again expressed strong reservation on stay of proceedings. Onnoghen JSC captioned that attitude when he said:
“The facts of this case once more bring to the front burner the vexed issue of interlocutory appeals making their way right up to this court at the expense of speedy trials and determination of matters before the court. The present journey by the appellant to the Supreme Court is not only wasteful to both parties and the judicial system but totally avoidable particularly as the issue could be taken up in an appeal against the judgment at the conclusion of trial. The instant appeal is not only frivolous but vexatious crafted to frustrate and continue to oppress the respondent in his efforts at attaining justice under the rule of law, which should not be encouraged at all by any right thinking judicial system”.
The Applicant has failed to convince me that the action in the lower court ought to be stayed. Learned counsel has not convinced the court on how the appeal will be rendered nugatory neither can I appreciate from the facts presented how the appeal will be stultified. The complaint of the applicant can be conveniently dealt with together in an appeal against the final decision of the court. See Mobil Oil (Nig.) Plc v. Keno Energy Ltd. Supra.
Consequently the first prayer seeking leave of court is refused. In prayer 2 applicant seeks a consolidation of the two notices of appeal dated 28 November, 2005 and 20 March, 2006. Consolidation of applications or consolidation of suits is for convenience of the trial and does not give to the parties to the consolidated suits any rights which ordinarily they could not have enjoyed. The purpose is usually to save cost and time where common questions of law or fact would arise in the matter bearing sufficient importance of proportion to the rest of the subject matter of the action to render it desirable that the whole should be disposed of at the same time. (See NASR v. Complete Home Enterprises (Nig.) Ltd. (1977) N.S.CC 244 at 230). Applicant in paragraph 5(o) of the affidavit in support of the application averred to the fact that the consolidation of the two appeals will ensure speedy disposition of the matter. The Respondent in their counter affidavit did not react to that averment.
Having held that it is not reasonable to stay proceedings of the trial in the lower court at this stage, what is appropriate is that the Applicant should wait until the final determination of the suit in the lower court. He can then file an appeal on the final judgment if he so desires. Consequently, the application for consolidation of the Notices of Appeal is superfluous. The Notices of Appeal arises from the same suit and same parties. All the Applicant is required to do is to formulate issues from the grounds of appeal in the two notices and argue them together on hearing of the appeal.
There is no need for an order of consolidation considering the nature of the Notices of Appeal which rest on interlocutory appeals arising from the main suit.
On the totality of the application, I am of the view that same is devoid of merit and should be dismissed. Consequently, prayers 1 and 2 on the Motion on Notice dated 2 November, 2006 are refused and dismissed. I award the cost of N10,000.00 in favour of the Respondent.
Other Citations: (2008)LCN/2774(CA)
