DANGOTE INTEGRATED STEEL PLC v. ALHAJI (PA) NASIRU OYENIYI & ORS (2014)

DANGOTE INTEGRATED STEEL PLC v. ALHAJI (PA) NASIRU OYENIYI & ORS

(2014)LCN/7685(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/AK/98/2015

RATIO

APPEAL: STAY OF PROCEEDINGS; CIRCUMSTANCES THAT WOULD WARRANT THE GRANT OF STAY OF PROCEEDINGS

Where a genuine issue of jurisdiction is raised by an applicant then he has satisfied a special circumstance to warrant the grant of stay of further proceeding pending the determination of his appeal. See Okem Ent. (Nig) Ltd v. N.D.I.C (2003) 5 NWLR (Pt. 814) 495 and Tukur v. Gov. Gongola State (1989) 4 NWLR (Pt 117) 517.
It is also the law that when an interlocutory appeal will dispose off the substantive case a stay of further proceedings will be granted. See Okem Ent. (Ltd) v. N.D.I.C. (supra) and Anyeru v. Eledo (2005) 12 NWLR (Pt 939) 368.
Furthermore where the plaintiff whose action is sought to be stayed has no cause of action an application for stay of further proceedings will be granted. See Akilu v. Fawehinmi (No. 2) (1989) 4 NWLR (Pt 102) 122. per. JAMES SHEHU ABIRIYI, J.C.A.

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION
The issue of jurisdiction is so fundamental that where the trial Court pronounces on it and holds that it has jurisdiction, proceedings must be stayed to enable the appellate Court look into the substance of such ground of appeal unless the issue is raised merely as a ploy to delay proceedings. See Tukur v. Gov. Gongola State (supra). per. JAMES SHEHU ABIRIYI, J.C.A.

Before Their Lordships

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMAJustice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria

Between

DANGOTE INTEGRATED STEEL PLCAppellant(s)

AND

1. ALHAJI (PA) NASIRU OYENIYI
(Head of Sogbodede Royal Family of Osogbo)
2. ALHAJI (PA) SALAMI MOGAJI
(Head of Lahanmi – Oyipi Royal Family of Osogbo)
3. ALHAJI (PA) ASHIRU OYEWOLE
(Head of Matanmi Royal Family of Osogbo)Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Lead Ruling): This is an application by the Appellant praying for an order staying further proceedings in suit No HOS/154/2013 between the parties herein pending the hearing and determination of the appeal filed by the Appellant/Applicant against the ruling of the lower Court delivered on 11th February, 2014.

The application which is supported by an affidavit is brought upon seven grounds, three of which reproduced immediately hereunder read as follows:
“d) Unless the Court grants a stay of proceedings the Appeal will be rendered nugatory in the event that the Applicant’s appeal succeeds.
e) The Applicant’s Notice of Appeal raises issues of locus standi, reasonable cause of action which borders on jurisdiction.
g) The lower Court has refused to stay proceedings despite the fact that this appeal has been entered.”

The Respondents filed a counter affidavit in opposition.

The Appellant/Applicant filed a further affidavit.

Both parties filed written addresses.

The appeal pending before this Court is against the ruling of the lower Court dismissing the

preliminary objection of the Appellant/Applicant to the competence of the suit before it.

The suit which was commenced by originating summons is for the determination of the following questions:
1. Having regard to the clear provisions of Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2011). Article 14 of the African Charter on Human and Peoples Right, Sections 28 and 51 of the Land Use Act (1978) CL5, Laws of the Federation of Nigeria, and Courts’ decisions in AJAO V. SOLE ADMINISTRATOR OF IBADAN CITY COUNCIL LTD (1971) NMLR 74, AJAO V. IKOLABA (1972) 5 SC PG 58, GOLDMARK NIG. LTD & 3 ORS V. IBAFON COMPANY LTD & 4 ORS (2013), All FWLR (Pt. 663) Pg. 830 whether the acquisition of Plaintiffs’ land measuring approximately 50.115 hectares lying and situate off Osogbo/Ikirun Road, Ota-Efun, Osogbo and particularly describe (sic) in Oyo State Gazette published on the 12th Day of November, 1981 in Vol.6, No. 45, Oyo State Notice No. 312 at page 444 to 445 AND all that (sic) pieces of land lying and situate at Dagbolu and bounded as follow: In Front; Osogbo Ikirun Road/Atman Publishers Company and Nigerian

Machine Tools Ltd, At The Back; Railway line, At The Left Side; untarred road and At The Right Side; Dagbolu-Oba tarred road (hereinafter jointly referred to as the “Plaintiffs’ Land”) for public purpose has not failed.
2. Having regard to the clear provisions of Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2011), Article 14 of African Charter on Human and Peoples Right, Section 28 and 51 of the Land Use Act (1978), CL5, Laws of the Federation of Nigeria, Courts’ decisions in AJAO V. SOLE ADMINISTRATOR OF IBADAN CITY COUNCIL LTD (1971) NMLR 74, JAO V. TKOLABA (1972) 5 SC PG 58, GOLDMARK NIG. LTD & 3 ORS V. IBAFON COMPANY LTD & 4 ORS (2013), All FWLR (Pt.663) Pg. 830 whether the Plaintiffs’ Land has not reverted to the Plaintiffs (i.e. Original Owners) by operation of law.
3. Having regard to the clear provisions of Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2011) Article 14 of African Charter on Human and Peoples Right, Section 28 and 51 of the Land Use Act (1978), CL5, LFN, Courts’ decisions in AJAO V. SOLE ADMINISTRATOR OF IBADAN CITY COUNCIL LTD (1971) NMLR

74, AJAO V. IKOLABA (1972) 5 SC PG 58, GOLDMARK NIG. LTD & 3 ORS v. IBAFON COMPANY LTD & 4 ORS (2013), All FWLR (Pt. 663) Pg. 830 whether the continued occupation of the Plaintiffs’ Land by the Defendant does not amount to trespass and continued trespass.

Upon the determination of the above questions the Respondents pray the lower Court for the following reliefs:
1. A DECLARATION OF THE HONOURABLE COURT that the public purpose for which all that piece of land measuring approximately 50,115 hectares lying and situate off Osogbo/Ikirun Road, Ota Efun Area, Osogbo and particularly described in Oyo Sate Gazette published on the 12th Day of November, 1981 in Vol. 6, No. 46, Oyo State Notice No. 312 at page 444 to 445 AND all that (sic) pieces of land lying and situate at Dagbolu and bounded as follows: In Front; Osogbo Ikirun Road/Atman Publishers Company and Nigerian Machine Tools Ltd, At The Back; Railway line, At The Left Side; untarred road and At The Right Side; Dagbolu-Oba tarred road (hereinafter jointly referred to as “the Plaintiffs’ Land”) which was acquired from the plaintiffs for public purpose has failed.
2. A DECLARATION OF THE

HONOURABLE COURT that the Plaintiffs’ Land ought to revert to the Plaintiffs by operation of law.
3. A DECLARATION OF THE HONOURABLE COURT that the continued occupation of the Defendant of the Plaintiffs’ land amount to trespass and continued trespass.
4. AN ORDER OF PERPECTUAL INJUNCTION restraining the Defendant, its Agent, privies, Assigns and/or any other person whomsoever acts through it from further trespass on the Plaintiffs land.
5. AN ORDER OF THE HOUNOURABLE COURT directing the Defendant to pay the Plaintiffs the sum of N500,000,00K (Five Hundred Million Naira) being damages for trespass and continued trespass on the Plaintiffs land.

The originating summons in a resume relates to land at Osogbo, Osun State which the erstwhile Government of Oyo State acquired in 1981 for public purpose to wit the establishment of a steel rolling mill. A company known as Osogbo Steel Rolling Company Ltd owned by the Federal Government of Nigeria was established on the land. The company operated for sometime and became moribund. The Federal Government privatized the company in 2005 and sold the company to the Appellant/Applicant.
?
The case of

the Respondents is that the land the government acquired from them is no longer being used for the purpose for which it was acquired and the land should revert to them as the original owners. That it was wrong for the government to takeover the land from them and give it by sale to the Appellant/Applicant.

The originating summons taken out by the Respondent elicited a preliminary objection by the Appellant/Applicant upon the following grounds:
1. The subject matter of this suit is already acquired land by the Government
2. That the land which is the subject matter of this suit has been properly acquired and Gazetted.
3. The plaintiffs/Respondents lack the locus standi to institute this action.
4. This action is not properly commenced same haven (sic) been commenced by originating summons
5. No documents were attached to the originating summons to help the Court determine this matter properly.

The Appellant was dissatisfied and appealed to this Court and applied to the lower Court for stay of proceedings pending the determination of the appeal.

The lower Court dismissed the application for stay of further proceedings.<br< p=””

</br<

This necessitated the instant application.

Paragraphs 3, 4, 13, and 14 of the affidavit in support of the motion on notice reproduced immediately hereunder read as follows:
“3. That on the 22nd of November, 2013 the Appellant/Applicant filed an application in this suit challenging the jurisdiction and the competence of the suit on the grounds that the subject matter of this suit is an already acquired land by the Government and that the Plaintiffs/Respondents lacks (sic) locus standi to institute this matter and are not competent to institute this action.
4. That the lower Court on 11th February, 2014 held that the Plaintiffs/Respondents has (sic) locus standi to prosecute this claim.
13. That the appeal hinges on issue of jurisdiction and competence which are issues capable of wholly disposing of the suit.
14. That the Appellant/Applicant’s Notice of Appeal contains arguable grounds and involves substantial points of law, which are recondite.”

The Respondents filed a twenty three (23) paragraph counter affidavit. Paragraphs 10, 12, and 20 of the counter affidavit read thus:
“10. That there is no res under threat in this

case as the Appellant/Applicant is physically present and still carries on its business on the land subject of this suit.
12. That this appeal is on the issue of locus standi of the Respondents, as such, no special circumstances exist in this case to warrant stay of further proceedings before the lower Court.
20. The Respondents have closed their case at the lower Court and granting this application will seriously prejudice the Respondents as same will force indefinite adjournment on the lower Court.”

The counter affidavit elicited a further affidavit in support of the motion on notice.

The Appellant/Applicant in its written address formulated the following lone issue for determination: That is, whether or not this Honourable Court should grant the Application for stay of proceedings of suit No: HOS/154/2013 between the parties pending the hearing and determination of the Appeal herein.

The Respondents on their part formulated the following lone issue for determination: Whether the Appellant’s/Applicant’s instant application discloses any special circumstance to warrant the exercise of the Court’s discretion in favour of the instant

application.

In the Appellant’s/Applicant’s written address which Akin Adewojo adopted, it was submitted that this Court has held inEze v. Okolonji (1997) 7 NWLR (Pt 513) 515 that where an issue of jurisdiction is genuinely raised in an appeal, that is a sufficient ground for granting an application for stay of proceedings in a suit.

It was further submitted that a stay of proceedings should be granted in order to preserve the res which is whether the lower Court should be allowed to continue with the proceedings before it notwithstanding the appeal against its ruling which is still pending before this Court? Reliance was placed on Oginni v. Oloriki (1991) 4 NWLR (Pt 184) 24.

It was submitted that if the application for stay of proceedings pending the determination of the appeal is not granted the right of the applicant to have a decision on its appeal would have been wiped out completely by the time the appeal is heard.

We were referred toFRN v. Abacha (2008) 5 NWLR (Pt 1081) 634 at 657 A-B where this Court per Okoro JCA as he then was stated thus:
“Where it appears on the face of the materials available to the Court that the

interlocutory appeal may finally dispose of the case it may be necessary to order a stay of proceedings.”

In the Respondents’ written address which Salihu Aliyu Esq. learned counsel for the Respondents adopted, it was submitted that the application is frivolous and vexatious and discloses no special circumstance warranting the grant of same. We were referred to NIWA v. S.P.D.C. NIG LTD (2008) 6 SCM 127.

The applicant, it was submitted, is guilty of delay and is therefore not entitled to the grant of stay of further proceedings pending the determination of the appeal. We were referred to Otateru Olagbegi III v. MAJEKOKUNMI (2014) 10 WRN 64.

It was submitted that if the appeal succeeds, it will only have the effect of nullifying the entire proceedings of the lower Court. Therefore proceeding with this case before the lower Court will not render the appeal nugatory if the appeal succeeds.

It was submitted that all the authorities cited by Appellant’s/applicant’s counsel regarding the preservation of the res are inapplicable to this case.

It was submitted that the fact that there is an appeal on locus standi is no unusual circumstance

warranting the grant of stay.

In his reply on points of law after re-arguing the Appellant’s/Applicant’s case to some extent learned counsel for the Appellant/Applicant pointed out that Paragraph 3(d) of the Further Affidavit in support of the motion addressed the reason for the delay. This includes an attempt to settle the matter amicably out of Court. Then there was the strike by judiciary workers which lasted about 8 months resulting in delay in compilation of record.

On the failure to attach the ruling of the lower Court in respect of the application for stay of proceedings, we were referred Exhibit F56 annexed to the affidavit in support of the application which is an application for a Certified True Copy of the ruling of the lower Court. It was submitted that despite all efforts to get the ruling it has not yet been released to the Appellant/Applicant.

It was submitted that under Order 4 Rule 11 of the Court of Appeal Rules 2011, the application for stay of further proceedings filed in this Court by the Appellant/Applicant is properly filed as all applications are to be filed at the Court of Appeal once the Appeal has been entered.<br< p=””

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It is common ground between the parties that the right of the Respondents to bring the action before the Court is what is on appeal before this Court. See Paragraph 3 of the affidavit in support of the application for stay of further proceedings reproduced elsewhere in this ruling. See also Paragraph 12 of counter affidavit in opposition to the motion on notice also reproduced above.
?
I do

not agree with the submission of learned counsel for the Respondents that the fact that there is an appeal on locus standi is no unusual circumstance warranting the grant of stay of further proceedings. Whether the Respondents have locus standi to bring the action in my view is an issue of jurisdiction.
The issue of jurisdiction is so fundamental that where the trial Court pronounces on it and holds that it has jurisdiction, proceedings must be stayed to enable the appellate Court look into the substance of such ground of appeal unless the issue is raised merely as a ploy to delay proceedings. See Tukur v. Gov. Gongola State (supra). It is not shown in this case that the issue of locus standi is raised merely as a ploy to delay proceedings.

Learned counsel for the Respondents has in the written address even conceded that if the appeal succeeds, it will have the effect of nullifying the entire proceedings of the lower Court.

As a genuine issue of jurisdiction seems to have been raised in the appeal against the interlocutory ruling of the lower Court, the application for stay of further proceedings pending the hearing and determination of the

appeal should be granted.

The application is granted as prayed.
1. An order is hereby made staying further proceedings in suit No. HOS/154/2013 between the parties herein pending the hearing and determination of the appeal filed by the Appellant/Applicant against the ruling of the lower Court delivered on 11th February, 2014.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the advantage of reading in draft the lead ruling of my learned brother James Shehu Abiriyi, JCA, and agree with his reasoning and conclusion. He has dealt exhaustively with all the issues in the application.

I too grant the application. I also abide by the consequential orders contained therein.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The appellant herein aggrieved by the decision of the trial Court and having lodged an appeal seeks for an order of stay of proceedings pending the determination of the appeal.

?Respondent contends that a piece of land which had been acquired by the government and for public purpose had reverted back to the original owners upon the failure of the purpose of acquisition i.e the

Osogbo Steel Rolling Mill.

The appellant in his challenge to the position of the respondent and the judgment of the Court contended that the locus standi of the respondent to have instituted the suit was in issue, as the property having been acquired and title having passed to the Oyo State Government before sell to it, that the plaintiff/respondent had no locus standi to institute the action, when it did at the trial Court.

The locus standi of the respondents to have instituted this suit was raised as their right to the property was divested when the acquisition of the property was made against them by the Oyo State Government.

That the acquisition of the land had been done and gazzeted shows that the appellant is alleging that ownership of the land was evidently on the Oyo State Government which Government could transfer; and the respondent/plaintiff having no right of action in respect of the land.

This was, prima facie, a challenge to the right of action and competence of the plaintiffs/claimant’s in the originating process to institute the action.
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If that was so, then, no cause of action would have annurred with a consequential

competence in the Court.

This issue of jurisdiction raised, is a sufficient ground for stay of proceedings, as an issue of jurisdiction is intrinsic and not extrinsic to adjudication. See Okem Enterprise (Nig.) Ltd. v. NDIC (2003) 5 NWLR (Pt. 814) 495 and Turkur V. Government of Gongola State (1989) 4 NWLR (Pt.117) 517.

The learned trial Court had held that it had jurisdiction inspite the objection or contention in the counter affidavit of the appellant suggesting otherwise, stemming from the locus standi.

Challenge.
If the challenge succeeds on appeal, the entirety of the suit and the proceedings at the trial Court would have been rendered nugatory. See Tanko V. UBA, Plc. (2010) 17 NWLR (Pt. 1221) page 80 at 99.

It is for this and the illucidations made by my Lord Abiriyi, JCA in the leading Ruling (that I agree with) that I, too should grant a stay of proceedings of the Suit No. HOS/154/2013 in concurrence with the lead Ruling.
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Stay of proceedings granted.

Appearances

Akin AdewopoFor Appellant

AND

Salihu Aliyu with H. Abioye and M. AdediranFor Respondent