HON. YUNUS AKINTUNDE & ORS. V. OLONA YINKA & ORS.
(2010)LCN/3608(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of March, 2010
CA/I/51/2008
RATIO
COURT: DUTY OF A LOWER COURT WHERE THE SAME MATTER IS PENDING AT A HIGHER COURT
However, the views expressed by the Supreme Court in Mohammed vs Olawunmi (1993) 4 NWLR (287) 254 at 278 D – E & H are quite apposite. The court held:
”It is better to await the decision of a higher court in respect of a matter pending in the lower court so as to avoid embarking on an exercise in futility. What is of considerable importance is that there must be respect for each court … A lower court should try to avoid defiance of the order or process of a superior court.
… Where there is an application before a higher court for a stay of proceedings in the lower court, a decision by the lower court, which will render the result of such application nugatory should be avoided. It will amount to mere speculation for the trial court to come to the conclusion that an appeal or an application before the higher court or appellate court will fail. “
See also: N.A.B. Vs Comex .Ltd. (1999) 6 NWLR (608) 648 at 671 G – H; Inakoju vs Ladoja: Appeal No. CA/I/21/06 delivered on 14/6/06 (unreported). PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
HON. JUSTICE S. D. BAGE Justice of The Court of Appeal of Nigeria
HON. JUSTICE MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. HON. YUNUS AKINTUNDE (CHAIRMAN OYO WEST LOCAL GOVERNMENT)
2. HON. G. A. OLAOMI (AKINYELE LOCAL GOVERNMENT)
3. HON. OGUNGBOLA YAKUB (CHAIRMAN ITESIWAJU LOCAL GOVERNMENT
4. HON. JUBRIL ALABI MUHAMMED (CHAIRMAN IBADAN SOUTH EAST LOCAL GOVERNMENT
5. HON. KEHINDE OLAOSEBIKAN (CHAIRMAN OLUYOLE LOCAL GOVERNMENT
6. HON. ABIMBOLA KOLAJO A. (CHAIRMAN SAKI EAST LOCAL GOVERNMENT
7. HON. ALABEDE RAFIU O. (CHAIRMAN ATISBO LOCAL GOVERNMENT
8. HON. ODEYEMI T. (CHAIRMAN IBADAN NORTH EAST LOCAL GOVERNMENT
9. HON. JOSIAH OLUFEMI IDOWU (CHAIRMAN IBADAN NORTH WEST LOCAL GOVERNMENT
10. HON. SAHEED YUSUF (CHAIRMAN ISEYIN LOCAL GOVERNMENT
11. HON. BIMBO ADEPOJU (CHAIRMAN IBARAPA EAST LOCAL GOVERNMENT
12. HON. SALAWU MUMINI ADENIYI (CHAIRMAN OYO EAST LOCAL GOVERNMENT
13. HON. ODUNAYE OLUSESAN A. (CHAIRMAN IBARAPA CENTRAL LOCAL GOVERNMENT
14. HON MICHAEL AWOLOLA IDOWU (CHAIRMAN IWAJOWA LOCAL GOVERNMENT
15. HON. RABIU MUSE OLASUNKANMI (CHAIRMAN ONA-ARA LOCAL GOVERNMENT Appellant(s)
AND
1. OLONA YINKA (CHAIRMAN, UNITED NIGERIA PEOPLES PARTY, OYO STATE
2. PRINCE TUNDE ATANDA CHAIRMAN, REPUBLICAN PARTY OF NIGERIA, OYO STATE
3. HON. ARIWOOLA OLAFENWA (CHAIRMAN, NEW NIGERIA PEOPLES PARTY, OYO STATE
4. ELDER TUNDE AJAYI (CHAIRMAN, PEOPLES REDEMPTION PARTY, OYO STATE
5. ALHAJI YEMI OLASUPO CHAIRMAN, ACTION FOR DEMOCRACY PARTY, OYO STATE
6. DR. S. S. OLALERE (CHAIRMAN, ACTION ALLIANCE PARTY, OYO STATE
7. REV. DR. S. AWOPEGBA (CHAIRMAN, NATIONAL CONSCIENCE PARTY, OYO STATE
8. OTUNBA LADELE OMOTAYO CHAIRMAN, MOVEMENT FOR DEMOCRACY AND JUSTICE, OYO STATE
9. COMRADE ADEGBOYEGA A. ADELU (CHAIRMAN, ALL PROGRESSIVE GRAND ALLIANCE, OYO STATE
10. ARIYI ADESINA (CHAIRMAN, NATIONAL DEMOCRATIC PARTY, OYO STATE
11. CHIEF DEJO AFOLABI CHAIRMAN, PEOPLES DEMOCRATIC PARTY, OYO STATE
12. BARRISTER F.A. MUSTAPHA CHAIRMAN, N.D.P., OYO STATE
13. HON. E. O. ADELOWO (CHAIRMAN DEMOCRATIC PEOPLES ALLIANCE, (For themselves and on behalf of all members of the Political Parties mentioned.
14. OYO STATE INDEPENDENCE ELECTORAL COMMISSION (OYSIEC)
15. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
16. COMMISSIONER OF POLICE Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Ruling):By a motion on notice filed on 11/1/2010, the 1st – 13th Respondents/Applicants (hereinafter referred to as the applicants) seek an order of this Honourable Court staying proceedings in this appeal pending the hearing and determination of their application for stay of proceedings pending before the Supreme Court of Nigeria. The grounds for the application are stated on the motion paper. The application is supported by a 13-paragraph affidavit deposed to by one Kunle Ademoyin, counsel in the chambers of Lateef O. Fagbemi & Co., solicitors to the 1st – 13th applicants. Attached to the application is one exhibit marked ‘A’, a certified true copy of the applicant’s application before the Supreme Court for extension of time to seek leave to appeal incorporating a prayer for stay of proceedings in the appeal before this court. The appellants/respondents (hereinafter referred to as the respondents) filed an 18-paragraph counter affidavit dated 15/1/2010 deposed to by Hon. Bimbo Adepoju, the 11th appellant/respondent. The applicants also filed a further affidavit dated 10/2/2010. Attached thereto is one exhibit marked Exhibit KA1 (a copy of hearing notice dated 9/2/2010 in respect of the application before the Supreme Court).
The 14th and 15th respondents did not file any process in reaction to the application. We heard oral arguments in respect of the application on 11/2/2010. We were satisfied from the court’s record that the 16th respondent was served with the application and had notice of the hearing date. He was absent and unrepresented by counsel. Mr. L.A. Ganiyu, Deputy Director Civil Litigation and Advisory Services, Ministry of Justice, Oyo State who represented the 14th respondent does not oppose the application. The contest is therefore between the 1st-13th respondents/applicants represented by Mr. H. O. Afolabi and the appellants/respondents represented by Chief Akin Olujinmi, SAN.
In moving the application, Mr. Afolabi referred to the prayer on the face of the motion paper and relied on all the grounds of the application and the supporting affidavit. He also relied on Exhibit A, the Certified True Copy of the application for stay of proceedings before the Supreme Court. He relied on the further affidavit filed on 7/2/2010 and the exhibit annexed thereto showing that the application for stay of proceedings at the Supreme Court has been fixed for hearing on 13/4/2010.
He referred to Order 1 Rule 2 of the Supreme Court Rules and submitted that the applicants have an appeal and a motion for stay of proceedings pending before the Supreme Court of Nigeria. He submitted that the only issue that calls for consideration is whether this court having become aware of a pending application for stay of proceedings before the Supreme Court can continue to exercise jurisdiction on the appeal before it. He submitted that in deference to the sanctity of the Supreme Court of Nigeria this court ought to stay proceedings. He relied on: MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (287) 254 at 277-278.
He argued that the jurisdiction of this Court under Section 240 of the 1999 Constitution does not confer competence on the court to determine whether or not an application before the Supreme Court is competent and whether or not the Supreme Court will grant the application for stay of proceedings before it. He relied on HON. MUYIWA INAKOJU & 17 ORS. VS. SENATOR RASHIDI LADOJA the unreported decision of the Ibadan division of the Court of Appeal delivered on 14/6/2006 in appeal No. CA/I/21/2006. He urged the court to adopt the reasoning in the said decision and grant the application.
In opposing the application, Chief Olujinmi,SAN relied on the counter affidavit filed on 15/01/2010. He submitted that this court has no power to grant a stay of proceedings before this court while a motion for leave to appeal is pending in the Supreme Court. He contended that the applicant’s Exhibit A is just an indication that the Applicants have a motion for extension of time for leave to appeal pending before the Supreme Court. He submitted that there is no appeal pending in that court. He referred to: EZE VS. OKOLONJI (1997) 7 NWLR (513) 515 at 527 D. Learned Senior Counsel submitted that the case of MOHAMMED VS. OLAWUNMI (supra) cited by learned counsel for the applicants is not on all fours with the present case. He submitted that in that case there was a pending appeal as opposed to an application for leave to appeal.
He submitted that the application for stay filed at the Supreme Court without waiting for the application before this court to be determined amounts to abuse of process. He referred to: UBA VS. MOPE NIG. LTD. (2000) 1 NWLR (640) 270 at 278-279. He submitted further that it is settled by the Supreme Court that where time is of the essence in a matter before the court, the court should be slow in granting a stay of proceedings. He referred to: INAKOJU VS. LADOJA (2006) 18 NWLR (1012) 667 at 670 B-C. He observed that the res in this matter will expire on 24/5/2010 and submitted that this case is therefore on all fours with INAKOJU’S case. He referred to paragraphs 7 & 15 of the Counter-Affidavit. He argued that where an interlocutory decision can be taken together with a final appeal the court would hesitate to grant a stay of proceedings pending the determination of an appeal against that interlocutory decision. He relied on: SAIPEN SPA VS. TEFA (2002) 16 NWLR (793) 410 at 430 A-B, also HALIRU VS. FRN (2008) ALL FWLR (425) 1697 at 1724 F-H; ORIZU VS. OFOMATA (2007) 13 NWLR (1052) 487 at 501 C-D & 502 B, E & H.
Learned Senior Counsel submitted that the grounds of appeal do not raise any substantial issue for determination. He contended that it is merely a complaint against the exercise of discretion by this court to allow an appellant to amend his ground of appeal. He submitted further that the conduct of the applicants is also a matter for consideration. He referred to paragraphs 12-14 of the counter-affidavit wherein it is averred that the sole objective of the applicant is to frustrate this appeal until the res expires. He contended that the court would not allow any party to resort to any strategy that would annihilate the res. He relied on: PSYCHATRIC HOSPITALS MANAGEMENT BOARD VS. DR. UTOMI (1999) 13 NWLR (636) 572 at 586 N. He urged the court to dismiss the application and adjourn the appeal to a date that would enable it to be heard and judgment delivered before the res is extinguished on 24/5/2010.
In reply on points of law, Mr. Afolabi referred to the contention of the learned Senior Counsel that there is no appeal pending before the Supreme Court. He referred to Order 1 Rule 2 of the Rules of the Supreme Court 1999 and the case of: EZE VS. OKOLOJI (supra) cited by the learned counsel and submitted that in that case the court did not consider who an Appellant is in the con of the Supreme Court Rules.
On abuse of court process, he submitted that the court is entitled to take judicial notice of the processes before it. He argued that there is no abuse as the tenor of the two applications is different. That while the application before this court is for stay of proceedings pending the determination of an application for stay of proceedings at the Supreme Court, the application before the Supreme Court is for stay of proceedings pending the determination of the appeal before that Court. He referred to: N.A.B. LTD. VS. COMEX LTD. (1999) 6 NWLR (608) 648.
He submitted that the case of INAKOJU VS. LADOJA (supra) and other authorities cited by the Learned Senior Counsel were in relation to applications for stay of proceedings pending appeal and therefore not applicable in the present circumstances. He submitted further that the issues of conduct, delay, etc., are irrelevant to a determination of whether to grant stay pending an application for stay at the Supreme Court. He urged the court to grant the application.
The circumstances that gave rise to this application as averred in paragraphs 3-10 of the supporting affidavit are that the applicants were dissatisfied with a ruling delivered by this court on 29/7/09 granting leave to the respondents to amend their notice of appeal. That although they instructed their solicitors to appeal against the decision of the Supreme Court, the necessary leave to do so was not sought and obtained within the time prescribed by law. That an application for extension of time to seek leave to appeal incorporating an application for stay of proceedings in the appeal before this court pending the determination of the appeal to the Supreme Court has been filed and is now pending before the Supreme Court. The applicants therefore seek a stay of the proceedings before this court pending the determination of the said application by the Supreme Court. By their further affidavit filed on 10/2/2010, they exhibited the hearing notice issued by the Supreme Court indicating that the application has been set down for hearing on 13/4/2010. It is the applicants’ contention that unless the application is granted, the application before the Supreme Court would be rendered nugatory. It is also their contention that the appeal before the Supreme Court involves fundamental issues of law with a high chance of success.
By their counter affidavit filed on 15/1/2010, the Appellants/Respondents aver that they were sworn in as Executive Chairmen of their various Local Government Councils by the Governor of Oyo State on 25th May, 2007 and that their tenure is due to expire on 24th May, 2010. It is averred that the High Court of Oyo State in a decision made on 23rd November 2007 set aside their election. An application to set aside the decision for non-service of the originating process on them was dismissed, hence the appeal now pending before this court. It is their contention that the applicants herein have been frustrating the hearing of the appeal and that the grant of this application would be prejudicial to them, as the res (their tenure of office) will expire on 24/5/2010.
I have carefully considered the submissions of both learned counsel in respect of this application and the authorities cited by them. Before going into the merit of the application, it is appropriate at this stage to bear in mind the fact that the present application is not an application for stay of proceedings pending the determination of the appeal before the Supreme Court. For that reason, the authorities cited by learned Senior Counsel for the respondents on stay of proceedings pending appeal would not avail the respondents in the present circumstances. In Inakoju vs. Ladoja (2006) 18 NWLR (1012) 667 at 670 B- C; Ijaodola vs Registered Trustees C. & S.M. Church (2006) 4 NWLR (969) 159 at 170 D – E; and Orizu vs Ofomata (2007) 13 NWLR (1052) 487 at 501 C – D & 502 BEH relied on by the learned Senior Advocate, the issue before the courts was whether or not to grant a stay of proceedings pending the determination of interlocutory appeals before higher courts. In each case it was held that the interlocutory appeals could be taken along with an appeal against the final decisions and that the applicants would suffer no injustice thereby. However, the application before this court is for the proceedings herein to be stayed pending the determination of the application for stay of proceedings pending appeal at the Supreme Court. In other words the proceedings before this court are to be stayed, if so ordered, pending the determination of the application only.
The learned Senior Counsel has argued that there is presently no appeal before the Supreme Court, as the pending application is for extension of time to seek leave to appeal. He argued that this court has no power to grant the application. As correctly observed by learned counsel for the applicants, by Order 1 Rule 2 of the Supreme Court Rules, an “appeal” includes an application for leave to appeal. It follows therefore that this court cannot shut its eyes to the fact that there is an application for leave to appeal and for stay of proceedings before the Supreme Court. The case of Eze vs Okolonji (1997) 7 NWLR (513) 515 cited by the learned Senior Counsel was also decided in the con of an application for stay of proceedings pending appeal. There was no application similar to the one in contention in the instant case before the court. In the circumstances of this case, the decision as to whether to grant a stay of the proceedings in this court pending the determination of the appeal before the Supreme Court is that of the apex court. The issue before this court is whether the proceedings herein ought to be stayed to enable the Supreme Court deliver its verdict on the application.
The fact of the matter is that the proceedings pending before the Supreme Court have been brought to the attention of this Court vide Exhibits A and KA1 attached to the supporting and further affidavit. I appreciate the concerns of the respondents that the res in this appeal, which is their tenure of office, would expire by 24/5/2010, in less than three months’ time. I also take cognizance of the authorities of: Saipem SPA vs. Tefa (2002) 16 NWLR (793) 410 at 430 A-B; International Agricultural Industries Nig. Ltd. vs Chika Brothers (1990) 1 NWLR(124) 70 at 81 D; and Inakoju vs Ladoja (2006) 18 NWLR (1012) 667 at 670 B – C cited by learned Senior Counsel for the respondents to the effect that the courts are usually reluctant to grant a stay of proceedings pending the determination of an interlocutory appeal where time is of the essence and/or where the interest of justice would be better served if the issue is taken up at the conclusion of the case along with an appeal against the final decision. However, the views expressed by the Supreme Court in Mohammed vs Olawunmi (1993) 4 NWLR (287) 254 at 278 D – E & H are quite apposite. The court held:
”It is better to await the decision of a higher court in respect of a matter pending in the lower court so as to avoid embarking on an exercise in futility. What is of considerable importance is that there must be respect for each court … A lower court should try to avoid defiance of the order or process of a superior court.
… Where there is an application before a higher court for a stay of proceedings in the lower court, a decision by the lower court, which will render the result of such application nugatory should be avoided. It will amount to mere speculation for the trial court to come to the conclusion that an appeal or an application before the higher court or appellate court will fail. ”
See also: N.A.B. Vs Comex .Ltd. (1999) 6 NWLR (608) 648 at 671 G – H; Inakoju vs Ladoja: Appeal No. CA/I/21/06 delivered on 14/6/06 (unreported).
There is no doubt that if this application is refused and the hearing of the appeal proceeds, the decision of the Supreme Court on the application for stay of proceedings would be rendered nugatory. Thus, much as we sympathize with the anxiety of the respondents in the present circumstances, having had notice of an application for stay of proceeding before the Supreme Court, which has been set down for hearing, prudence and respect for the hierarchy of our courts dictates that the proceedings before this court should be stayed pending the determination of the application before the Supreme Court. The proceedings before this court are accordingly stayed pending the determination of the application now before the Supreme Court.
SIDI DAUDA BAGE, J.C.A.: I agree with the reasonings and conclusions arrived thereat by my learned brother, Kudirat M. O. Kekere-Ekun, J.C.A.: in the lead Ruling.
I also affirm the decision to allow the application of the Respondents/Applicants.
MODUPE FASANMI, J.C.A: I had the privilege of reading before now the ruling just delivered by my learned brother K, M. O. Kekere-Ekun J.C.A. I agree entirely with the reasoning and conclusion reached therein. The proceedings before this Court are accordingly stayed pending the determination of the application before the Supreme Court.
Appearances
3rd, 8th, 10th, 14th & 15th Appellants/Respondents present.
H.O. Afolabi;
S.O. Ajayi,
O.A. Ojo, Segun Adebayo;
O. AyandipoFor Appellant
AND
Chief Akin Olujinmi, SAN;
Bola Alabi Esq.
L. A. Ganiyu, Deputy Director Civil Litigation and Advisory Services, Ministry of Justice, Oyo StateFor Respondent
