GIPSREL INTER. CO. NIG. LTD. v. HENRY O. EYA & ANOR.
(2010)LCN/4040(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of November, 2010
CA/PH/74/2006
RATIO
EFFECT OF AN APPEAL FILED BEYOND THE STATUTORY PERIOD PRESCRIBED WITHOUT LEAVE/EXTENSION OF TIME BY THE COURT OF APPEAL
…an appeal filed beyond the statutory period prescribed without leave/extension of time by the Court of Appeal is not an appeal before the court and ought to be struck out. See Chief O. Awhinashi & Anor. vs. Chief S. E. Oteri & Ors. (1984) 5 SC 38. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WHETHER A JUDGMENT OF A COURT OF LAW CAN BE SUBJECTED TO INTERPRETATION BY A COURT OF CO-ORDINATE JURISDICTION
… a judgment of a court of law cannot be subjected to interpretation by a court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligation of parties. See Race Auto Supply Co. Ltd. & Ors. vs. Alhaja Faosat Akib (2006) 13 NWLR (Pt. 997) 333 at 352. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WHETHER THE GRANT OF STAY OF PROCEEDINGS OF A CASE BEFORE THE COURT IS A MATTER WITHIN THE DISCRETION OF THE COURT
It is now trite, that the grant of stay of proceedings of a case before the court is a matter of discretion of the court. The exercise of the discretion is dependent on the facts and circumstances of each case, and founded on grounds of appeal which must not be frivolous. See Vaswani Trading & Co. vs. Savalah (1972) 12 SC 77 and Okafor vs. Nnaife (1987) 4 NWLR (Pt. 64) 129. PER MOJEED ADEKUNLE OWOADE, J.C.A.
WHETHER A COURT FACED WITH AN APPLICATION FOR STAY OF PROCEEDINGS ON ISSUE OF JURISDICTION, MUST BE FULLY SATISFIED AND CONVINCED THAT THERE IS REALLY A GENUINE ISSUE OF JURISDICTION INVOLVED IN THE MATTER SOUGHT TO BE STAYED
…where issue of jurisdiction is involved in a pending appeal, a court is bound to grant an application for stay of proceedings pending the determination of the appeal. However, a court should not be swayed by the mere raising of jurisdiction, as in the instant case, to fold its arm or to simply for that reason grant stay of proceedings. It is always very important to draw a distinction between the mere raising of jurisdiction in an appeal and the real involvement of jurisdiction in the appeal. In Federal Republic of Nigeria & 3 Ors. vs. Alhaji Mohammed Sani Abacha & 2 Ors. (2008) 5 NWLR (Pt. 1081) 634 at 652, the Court of Appeal (Kaduna Division) in a lead judgment by Sanusi, JCA, held that: “Jurisdiction is a matter of law handed out by either an enabling statute or the constitution. Therefore, before granting stay of proceedings on issue of jurisdiction, a court faced with an application for stay, must be fully satisfied and convinced that there is really a genuine issue of jurisdiction involved in the matter sought to be stayed …………………” PER MOJEED ADEKUNLE OWOADE, J.C.A.
WHETHER WHERE THERE IS AN INTERLOCUTORY APPEAL ON A RULING REGARDING THE PRESERVATION OF THE ‘RES’ IN THE ACTION, A TRIAL COURT SHOULD STAY PROCEEDINGS PENDING THE OUTCOME OF THE APPEAL
…it has been held that where there is an interlocutory appeal on a ruling regarding the preservation of the ‘res’ in the action, a trial court should stay proceedings pending the outcome of the appeal. See Holman Bros (Nig.) Ltd. vs. Kigo (Nig.) Ltd. (1980) 8 – 11 SC 43 at 62. However, in other interlocutory appeals, upon consideration of their peculiar facts and circumstances, it may be just and equitable that the trial court should proceed with the hearing of the case, since the unfavourable ruling that has given rise to the refusal to stay proceedings would be a subject of appeal after judgment. See Holman Bros (Nig.) Ltd. vs. Kigo (Nig.) Ltd. (supra) at page 62. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
GIPSREL INTER. CO. NIG. LTD. Appellant(s)
AND
1. HENRY O. EYA
2. ISAAC NDUKA EYA
[ADMINISTRATORS OF THE ESTATE OF MADAM NWADA EYA ALIAS MADAM AGBEKE (DECEASED] Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Ruling): The present application for a stay of proceedings by the 1st defendant/appellant/applicant arose from the Ruling of N. C. Otti, J., delivered on 6/10/03.
Hitherto, by an originating summons dated 9th September, 2002, the plaintiffs (now respondents) approached the lower court against the present appellant/applicant as 1st defendant and others for the determination of the following questions:
“1. Whether the judgment of this Honourable Court (Coram D. E. Njiribeako J.) in Suit No. A/20/79 – Chief Abraham O. Eya & 2 Ors. vs. Chief T. A. N. Obeta dated the 5th day of June, 1981 does not render any subsequent dealings in the property known as Plot 3 Block 66 otherwise known as No. 72 Hospital Road, Aba, by H. R. H. Igwe T. A. N. Obeta, A. E. Bright Future Motors (Nig.) Ltd. and Gipsrel Inter. Co. Nig. Ltd. invalid, null and void.
RELIEFS SOUGHT
1. A declaration that the following instruments executed by the parties hereinabove named in relation to the said property as it is hereunder shown in the property card of the said property in Registry of Deeds at the office at Umuahia are invalid, null and void, that is to say: ……….
2. Perpetual injunction restraining GIPSREL INTER. CO. LTD. either by themselves, their servants and or agents from committing any further acts of trespass on the aforesaid property.”
Before the lower court, in reaction to this suit, the 1st defendant/appellant/applicant entered a conditional appearance and also filed a counter-affidavit in opposition to the originating summons. Subsequently, the 1st defendant/appellant/applicant filed a notice of preliminary objection praying the court below to strike out the suit on the basis that the court had no jurisdiction to entertain the action having not been brought by due process of law. 1st defendant’s/appellant’s reason among others was that the facts of the suit, as between it and the plaintiff are controversial and could not be entertained without calling evidence.
The learned trial Judge on 6/10/03 overruled the 1st defendant’s/appellant’s preliminary objection and observed that an originating summons is merely a form of procedure not meant to enlarge or take away the jurisdiction of court.
Learned counsel for the 1st defendant/appellant applied on 18/11/03 to stay proceedings at the lower court, consequent on the above Ruling. In another well-considered Ruling delivered on 14/1/04, N. C. Otti, J., refused the 1st defendant’s/appellant’s application for stay of proceedings.
By a Notice of Appeal filed on 24/5/07 containing six (6) grounds of appeal, learned senior counsel for the appellant complained against the Ruling of 6/10/03 in which the Hon. Justice N. C. Otti assumed jurisdiction in the case. In relation to the appeal, appellant filed its brief of argument on 1/6/07.
On 19/6/07, learned senior counsel for the appellant/applicant (1st defendant in the lower court) filed a Motion on Notice dated 18/6/07 for an order:
“Staying the proceedings in Suit No. A/434/2002 – Henry O. Eya & Anor. vs. Gipsrel International Company Nigeria Ltd. & 3 Ors., now pending in High Court 2, Aba, Abia State pending the determination of the appeal to the Court of Appeal in the same suit.”
The 1st defendant’s/appellant’s/applicant’s motion on notice is supported by a 16 paragraph affidavit also dated 19/6/07 sworn to by one Engr. J. O. Ukaegbu, the Administrative Manager of Gipsrel International Company Nigeria Ltd. The plaintiffs/respondents not only filed a counter-affidavit of 24 paragraphs dated 3/7/07 but also filed a Notice of Preliminary Objection on the same 3/7/07 to the appellant’s/applicant’s motion on notice.
The appellant’s Written Address in support of motion for stay of proceedings pending appeal dated 31/7/07 was filed on 7/8/07. The Written Address of plaintiffs/respondents (incorporating preliminary objection dated 13/9/07 was filed on 18/9/07.
I will start this Ruling by a consideration of the plaintiffs’/respondents’ Notice of Preliminary Objection.
The gravamen of the preliminary objection by the learned counsel for the respondents is first, that the appellant’s brief for the appeal was filed out of time. According to counsel, the time limited for the appellant/applicant to file the brief of argument started to run when its appeal was entered into this Honourable Court on or about February 2006.
That the appeal was initiated by the appellant/applicant filing a notice of appeal. That, the notice of appeal was not void but was irregular for having been filed without leave. And that it was the irregularity which the appellant/applicant has now cured by obtaining leave of court and filing a proper notice of appeal.
Respondents’ counsel referred to the case of Madam Margaret Ezeokoafor vs. E. Ezeilo (1996) SCNJ 209 at 216 – 218 and said that act was only the continuation of the valid legal process.
Second, that in their counter-affidavit to this motion, the respondents listed six applications for stay of proceedings pending appeal filed in this court by the appellant/applicant. That, they were all struck out. And, that this explains the unnecessary delay in this proceeding.
In answer to the preliminary objection, appellant’s/applicant’s counsel said it is common ground:
“(i) That the Record of Appeal was transmitted to this Court in February 2006 or thereabout and appeal entered.
(ii)That on the 22nd day of May, 2007, this Honourable Court granted the appellant leave to appeal pursuant to which the appellant on 24th May, 2007 filed its Notice of Appeal dated 23rd May, 2007.
(iii) That on 1st June, 2007, the appellant filed its Brief of Argument.”
Learned senior counsel for the appellant/applicant submitted that it is therefore clear that:
“(i) Until this court, granted leave, pursuant to which the appellant filed Notice of Appeal on 24th May, 2007, there was no appeal pending; and
(ii) The appellants’ 60 days within which to file its brief started to run on the filing of the Notice of Appeal, and hence, the appellant needed no leave of court for enlargement of time within which to file its brief. The respondents’ objection to the filing of the brief is therefore groundless.”
On the respondents’ objection to the effect that the appellant filed several applications for stay of proceedings in the past and the same were struck out. Appellant’s counsel submitted that:
“(i) Those applications were exercises in futility in that there was no appeal pending before 24th May, 2007, when the appellant filed Notice of Appeal with leave of court; and
(ii) Even if there was an appeal pending, there is no rule of law which limits the number of times an applicant can bring an application once it has not been determined on merit. – Mukadam vs. Akanbi (2000) 13 NWLR (Pt. 685) 616 at 617.”
In determining the respondents’ preliminary objection, I have no doubt that the appellant has provided a full answer to the objection.
In the first place, even if the appellant’s brief of argument were to be relevant by any stretch of imagination to the determination of the present application for stay of proceedings, which fact is denied, the appellant’s brief of argument was not filed out of time. This is because, an appeal filed beyond the statutory period prescribed without leave/extension of time by the Court of Appeal is not an appeal before the court and ought to be struck out. See Chief O. Awhinashi & Anor. vs. Chief S. E. Oteri & Ors. (1984) 5 SC 38. In the instant case, this Honourable Court granted the appellant leave to appeal on 22nd day of May, 2007, pursuant to which the appellant filed its Notice of Appeal on 24th May, 2007. In those circumstances, a brief of argument filed on 1st June, 2007, could not be said to be filed out of time neither could it be described as irregular or incompetent.
Respondents’ second ground of objection as to numerous applications by the appellant/applicant that were struck out by the court is indeed a non-issue. Respondents’ preliminary objections are accordingly overruled and the Notice of Preliminary Objection dismissed.
On the main application for stay of proceedings, learned senior counsel for the appellant relied on the supporting affidavit and submitted that they have shown special or exceptional circumstances by genuinely raising the issue of jurisdiction as can be seen from the grounds of appeal warranting the grant of stay. On this, counsel referred to the case of Nizo Nig. Ltd. vs. Aliyu (2005) 17 NWLR (Pt. 954) 292 at 302. He urged this court to hold that the grounds of appeal are substantial.
With reference to paragraph 10 of the appellant’s/applicant’s affidavit and paragraph 23 of the respondents’ counter-affidavit, counsel submitted that unless the court intervenes to maintain status quo by ordering a stay of proceedings, trial in the lower court will continue not withstanding the appeal which will foist on this court a situation of complete helplessness. On this, counsel referred to the case of Fagbenro vs. Orogun (1993) 3 NWLR (Pt. 284) 662 at 674 – 675. He urged this court to grant the application for stay.
In reply, learned counsel to the respondents identified the danger of arguing this appeal twice as the court may be tempted in the process to give decisions which may affect the merits of the case.
Secondly, respondents’ counsel submitted that the case before the lower court has come to the stage of written addresses and plaintiffs/respondents have filed and served Written Address on the appellant/applicant. He said that when the matter came up for adoption of written addresses, the appellant/applicant through its lead counsel informed the court that the time limited for them to file Written Address was still running. As a result of which the case was further adjourned and, meanwhile, the learned trial Judge was appointed and posted to Akwa-Ibom State as a member of the Governorship and State Election Petition Tribunal.
Thirdly, respondents’ counsel submitted that this case has now gone beyond a consideration of such issues as “special circumstances” and such like issues as the interlocutory appeal can be merged with the substantive appeal if necessary at the end of the day. He urged this court to dismiss the application.
The essential facts on which the appellant/applicant based this application for stay of proceedings could be found in paragraphs 3 – 5 of the supporting affidavit to wit:
“3. That the respondents filed the above suit under originating summons in which they invited the High Court to interpret and/or construct an earlier judgment of another High Court.
4. That we filed our defence, and also filed an application in which we raised the issue of competence of the suit and challenged the jurisdiction of the High Court to entertain the suit.
5. That the trial court in its considered Ruling on 6th October, 2003, refused our application and assumed jurisdiction whereby we sought to appeal.”
It is by these depositions that the appellant/applicant claimed to have raised a genuine issue of jurisdiction, which would warrant the grant of a stay of proceedings pending appeal.
Truly, if the deposition in paragraph 3 of the appellant’s/applicant’s supporting affidavit were to be true, it would have been easy to establish a case of a ground of appeal based on the issue of jurisdiction. This is because, a judgment of a court of law cannot be subjected to interpretation by a court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligation of parties. See Race Auto Supply Co. Ltd. & Ors. vs. Alhaja Faosat Akib (2006) 13 NWLR (Pt. 997) 333 at 352.
However, the respondents denied applicant’s paragraph 3 of the supporting affidavit in paragraph 4 of their counter-affidavit as follows:
“That paragraph 3 of the affidavit in support of the application is not true.”
What then is the correct position? The question for determination in the plaintiffs’/respondents’ originating summons at page 6 of the record does not in the words of applicant’s paragraph 3 of the supporting affidavit invite “the High Court to interpret and/or construct an earlier judgment of another High Court but to decide:
“1. Whether the judgment of this Honourable Court (Coram: D. E. Njiribeako, J.) in Suit No. A/20/79 – Chief Abraham O. Eya & 2 Ors. vs. Chief T. A. N. Obeta dated the 5th day of June, 1981, does not render any subsequent dealings in the property known as Plot 3 Block 66 otherwise known as No. 72 Hospital Road, Aba, by H. R. H. Igwe T. A. N. Obeta, A. E. Bright Future Motors (Nig.) Ltd. and Gipsrel Inter. Co. Nig. Ltd. invalid, null and void?”
The above question seeks a declaration of right by virtue of a previous judgment of a court of law and not that it seeks interpretation or construction of a judgment of a court of coordinate jurisdiction. By this factual revelation the purported jurisdictional issue which forms the basis, indeed the plank of the appellant’s/applicant’s application for a stay of proceedings pending appeal cannot be said to be genuine.
It is now trite, that the grant of stay of proceedings of a case before the court is a matter of discretion of the court. The exercise of the discretion is dependent on the facts and circumstances of each case, and founded on grounds of appeal which must not be frivolous. See Vaswani Trading & Co. vs. Savalah (1972) 12 SC 77 and Okafor vs. Nnaife (1987) 4 NWLR (Pt. 64) 129.
Now, generally speaking, where issue of jurisdiction is involved in a pending appeal, a court is bound to grant an application for stay of proceedings pending the determination of the appeal. However, a court should not be swayed by the mere raising of jurisdiction, as in the instant case, to fold its arm or to simply for that reason grant stay of proceedings.
It is always very important to draw a distinction between the mere raising of jurisdiction in an appeal and the real involvement of jurisdiction in the appeal.
In Federal Republic of Nigeria & 3 Ors. vs. Alhaji Mohammed Sani Abacha & 2 Ors. (2008) 5 NWLR (Pt. 1081) 634 at 652, the Court of Appeal (Kaduna Division) in a lead judgment by Sanusi, JCA, held that:
“Jurisdiction is a matter of law handed out by either an enabling statute or the constitution. Therefore, before granting stay of proceedings on issue of jurisdiction, a court faced with an application for stay, must be fully satisfied and convinced that there is really a genuine issue of jurisdiction involved in the matter sought to be stayed …………………”
Also, it has been held that where there is an interlocutory appeal on a ruling regarding the preservation of the ‘res’ in the action, a trial court should stay proceedings pending the outcome of the appeal. See Holman Bros (Nig.) Ltd. vs. Kigo (Nig.) Ltd. (1980) 8 – 11 SC 43 at 62.
However, in other interlocutory appeals, upon consideration of their peculiar facts and circumstances, it may be just and equitable that the trial court should proceed with the hearing of the case, since the unfavourable ruling that has given rise to the refusal to stay proceedings would be a subject of appeal after judgment. See Holman Bros (Nig.) Ltd. vs. Kigo (Nig.) Ltd. (supra) at page 62.
In the instant case, I agree with the learned counsel to the respondents not only that the issue of jurisdiction canvassed by the appellant/applicant is not genuine but also that the unfavourable ruling which gave rise to this application for stay of proceedings is already a subject of appeal before this court.
In the circumstances, the appellant’s/applicant’s application for stay of proceedings lacks merit and it is accordingly refused. Appellant’s/Applicant’s motion on notice for stay of proceedings dated 18/6/07 and filed on 19/6/07 is accordingly dismissed. There shall be costs of N5,000.00 in favour of the Respondents against the Appellants/Applicants.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. I agree with his reasoning and conclusion that the application for stay of proceedings lacks merit and should be dismissed. The Applicant did not satisfy this court with reasons why our discretion should be exercised on its behalf. Application Dismissed.
Appearances
U. F. Udogu (Mrs.) with P. O. Duru, Esq.For Appellant
AND
Chief Tagbo Nwogu with J. I. Kalu, Esq.For Respondent
