ALAYELUWA OBA (DR) SIKIRU KAYODE ADETONA, CFR. V. GEO RESOURCES LIMITED & ORS.
(2012)LCN/5279(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of March, 2012
CA/I/365A/2009
RATIO
ORDER: TEST FOR DETERMINING IF AN ORDER MADE WAS FINAL
For in Falola v. Union Bank of Nigeria Plc. (2005) 2 S.C. (Pt.11) 62 at 75 – 77, Edozie, J.S.C., (as he was) using the words of Karibi-Whyte J.S.C., in the case of Igunbor v. Afolabi (2001) 11 NWLR (Pt.723) 148 at 165, referred to by Otunba Osinusi, for the applicant, held inter-alia that-
“The test has been to look at the nature of the order made rather than the nature of the proceedings resulting in the order. What has to be considered is whether the order has finally determined the rights of the parties in the proceedings in issue appealed against and not whether the rights of the parties in the substantive action have been finally disposed of.
The instant case as rightly submitted by appellant’s counsel is an interlocutory motion by the appellant to be joined as co-administrators with the respondents. The order of the learned trial Judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer and without any further reference to itself or any other court of coordinate jurisdiction. The order of the learned trial judge is therefore a final order. An appeal on the final order is of right under section 220(4) of the 1999 Constitution.”
See also Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (Pt.30) 617, Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 233 at 298, Balogun v. Adejobi (1995) 2 NWLR (Pt.376) 131 at 161 – 162, Ebokam v. Ekwenibe and Sons Trading Co. Ltd. (1990) 10 NWLR (Pt.622) 242 and Ifediora v. Ume (1988) 2 NWLR (Pt. 74) at 14. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUDGMENT: EFFECT OF A HOLDING OF THE COURT NOT APPEALED AGAINST
The application does not therefore come to this court as an appeal to warrant the contention that because the holding of the court below on the incompetence of the notice and grounds of appeal was not appealed against it remains binding on the parties and the court – see the old English case of Cropper v. Smith (1883) 24 Ch.D 305 at 308 to 309. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
APPEAL: CONSEQUENCE OF AN AMENDED NOTICE OF APPEAL
There is in my view, nothing objectionable to granting a deeming order for an amended notice or appeal to be deemed properly filed. First the amendment of a notice of appeal ante-dates its existence – See Unity Bank Plc. And Anor. v. Edward Bouari (2008) 7 NWLR (Pt.1085) 372 at 399, where the Apex Court held in the lead judgment of Ogbuagu, J.S.C., (as he was) that-
“As a matter of fact, an amended notice of appeal, is certainly not a new notice of appeal. This is because and this is also firmly settled that an amendment, relates back to the date in which the document, was originally filed just an amended statement of claim.”
Second, once appropriate filing fee is paid for deeming an amended notice of appeal or any court process properly filed, a deeming order can be made covering the already filed court process normally to take effect on the date of the order – See Otunba Ojora v. Agip Nig. Plc. & Anor. (2005) 4 NWLR (Pt.916) 515 at 541 – 542 following the Supreme Court cases of Erisi v. Idika (1987) 4 NWLR (Pt.66) 503 at 511, 518, Abaye v. Offili and Ors. (1986) 1 S.C. 231 at 278, Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710 at 726,734, and Adelaja v. Alade (supra) at 543 per the lead judgment of Kutigi, J.S.C. (later C.J.N.) to the effect that once the requisite filing fee for deeming an amended notice of appeal duly filed is shown to have been paid the prayer for deeming it filed can be granted. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PROCEDURE: WHETHER AN APPLICANT NOT BEING A PARTY TO THE SUBSTANTIVE SUIT CAN BENEFIT FROM AN ORDER STAYING PROCEEDINGS
There is no gainsaying it that an applicant not a party to the substantive suit or who did not apply to be joined as a party to the suit cannot, ordinarily speaking, be allowed to benefit from an order staying proceedings of the suit pending the determination of an appeal against collateral proceedings with the substantive suit – See Liyange (supra). But it is a different ball game (if I may be permitted to put so) where the applicant has appeared against the refusal of the court below to join him as an Intervener/codefendant to the substantive suit. In such circumstance as stated above, a stay of proceedings in the substantive suit can be granted, not-withstanding the joinder of the applicant as a party to the suit has not crystallized, or is still subject-matter of further litigation on appeal, as in this case. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
ALAYELUWA OBA (DR) SIKIRU KAYODE ADETONA, CFR. Ogbagba II, The Awujale & Paramount Ruler of Ijebu land. – Appellant(s)
AND
GEO RESOURCES LIMITED
AND
1. OBA (ENGR.) MICHAEL OLUSEGUN ADESINA (OLOWU OF OWU-IJEBU)
2. THE MANAGING DIRECTOR
3. GUANGMING NIGERIA LIMITED
4. HAMWO MINING AND CONSTRUCTION NIG. LTD.
5. CHINA HARBOUR
6. ROTIMI TAIWO (a.k.a. OSHODI) – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling): The motion on notice dated and filed on 15.4.11 contains these prayers –
“1. Leave to amend the Notice of Appeal filed against the Ruling of the Ogun State High Court (Coram Ogunsanya J.) sitting at Ijebu-Ode in suit No. HCJ/125/2008 delivered on the 11th day of June, 2009 by deleting the endorsed leave recited thereon and the names of the 2nd and 3rd Respondents (namely The Managing Director and Gunagming Nigeria Limited), therein the claims against same having been withdrawn by the Claimant/Respondent (i.e. Geo Resources ltd.) in the court below.
2. Deeming the amended Notice of Appeal filed and served along herewith as having been properly filed and served.
3. For enlargement of time within order which to apply for an order for stay of proceedings in suit No. HCJ/125/2008 in the court below pending the determination of the Appeal lodged herein.
4. For stay of proceedings in Suit No. HCJ/125/2008 in the court below pending the determination of the Appeal lodged herein, the same order having been refused by the court below.
5. For enlargement of time within which the Intervener/Appellant/Applicant is to compile and transmit the Records of Appeal in respect of the appeal lodged herein to this Honorable Court.
6. For departure from Order 8 Rules 1 and 4 of the Rules of this Honourable Court by allowing the Records of Appeal complied by the Appellants in Appeal No. CA/365/2009 (the said Appellants being tenants of the Intervener/Appellant/Applicant) as records to be used for the purpose of this appeal.”
An affidavit deposed to by one Omowunmi Salami, a law clerk in the Law firm of Otunba W.O. Osinusi, the applicant’s learned counsel, accompanied the motion. In arguing the application, the applicant’s learned counsel relied on the affidavit evidence with (12) documents marked Exhibits A, B, C, D, E, F, G, H, J, K, L, M, to contend on the first and second prayers in the motion paper that the Ruling of the court below refusing the joinder of the applicant to the suit in the court below is a final decision appealable to the Court of Appeal within three months vide section 24(2)(a) of the Court of Appeal Act, 2004, as amended, read with the cases of Agbogunleri v. Bepo (2008) 33 NSCQR (Pt.2) 781, Gomez v. Cherubim and Seraphim etc. (2009) 38 NSCQR (Pt 2) 696, Igunbor v. Afolabi (2001) 6 NSCQR (Pt. 1) 435;
The motion contended that though counsel for the applicant misconceived the nature of the proceedings by treating the refusal of the motion to join the applicant as Intervener/co-defendant to the suit and proceeded on the erroneous footing to seek and obtain the leave of the court below to file the appeal against the refusal of the motion, the mistake of counsel should not be visited on the applicant; that the original notice of appeal was filed in the court below on the fifteenth day of the decision refusing the applicant’s motion by the court below.
It was also argued that what the applicant is now seeking is to delete the names of the 2nd – 3rd respondents from the appeal on account of the withdrawal and striking out of their names as parties in the court below vide Exhibit I making their presence in the appeal unnecessary; while the endorsed leave on the original notice of appeal in Exhibit J is otiose, as the applicant’s right of appeal was from the outset as of right having arisen from a final decision of the court below, therefore the already filed amended notice of appeal in Exhibit L without the endorsed leave to appeal on it and without the 2nd and 3rd respondents as parties thereto should be deemed properly filed.
Paragraphs 18 – 20 of the supporting affidavit together with the Ruling of the court below in Exhibit M delivered on 2.2.10 were referred to by the applicant’s learned counsel to urge for an extension of time within which to apply for stay of proceedings and for a stay of proceedings pending the determination of the appeal against the refusal of the court below to join the applicant as Intervener/co-defendant to the suit, as a refusal of the prayers for stay of proceedings may lead to the court below proceeding with the suit to judgment rendering the appeal against the refusal to join the applicant as Intervener/co-defendant to the suit a pyrrhic action.
Arguments in respect of prayers (5) and (6) in the motion paper inclined that the 4th and 5th respondents, the applicant’s tenants in the disputed land, furnished him with a copy of the compiled record of the court below for use in respect of the appeal as departure from the Rules of the court; or that time be enlarged for the applicant to compile the record of appeal and the motion be granted as prayed.
The 1st respondents learned senior counsel, Mr. Aiku, opposed the motion with a counter affidavit together with the submissions that the court below had stated in its Ruling in Exhibit M page 11 thereof and Exhibit G that the notice of appeal in Exhibit J is incompetent which the applicant did not appeal against, therefore the holding is binding on the applicant vide Asco Nigeria Ltd. v. Word and Green (2010) 3 NWLR (Pt.1131) 302 at 325 to the effect that an invalid notice of appeal cannot be amended, nor can a notice of appeal ordered to be deemed filed retrospectively vide Cooperative Bank of Eastern Nigeria Ltd. v. Oguru (1991) 1 NWLR (Pt.168) 458 at 467.
Learned senior counsel for the 1st respondent also argued that the applicant is not a party to the proceedings the motion is seeking to stay and stands to lose nothing if a stay of proceedings is refused, therefore it will not be in the interest of justice and contrary to judicious and judicial exercise of discretion if a stay of proceedings is granted in the circumstances vide Akilu v. Fawehinmi (1989) 2 NWLR (Pt.102) 122 at 165 – 173, Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264 at 277 – 278.
It was further argued that prayers (5) and (6) (supra) cannot be granted because the applicant cannot rely on the record of proceedings of the 4th – 5th respondents in respect of their case unless he prepares his own record of appeal which cannot be done by departure from the Rules of the Court as that practice or procedure was abolished by the Court of Appeal Rules, 2007, applied by this Court in Asol (Nig) Ltd v. Access Bank (Nig) Ltd. (2009) 10 NWLR (Pt. 1149) 282 at 297; and that the current legal position stated in the cases of Ogbuechi v. Governor of Imo State (1995) 9 NWLR (Pt.417) 53 at 95 and Oyewole v. Lasisi (2000) FWLR (Pt. 10) 1606 at 1619 does not favour the shielding of a client from the transgression of his counsel in all cases; consequently the motion should be refused with substantial costs, as to grant same would put the applicant to sleep to the detriment of the progress of the substantive suit and the appeal.
The learned senior counsel for the 4th – 5th respondents, Mr. Adesanya, conceded the motion which he bolstered up with submissions that the applicant is the landlord of the 4th and 5th respondents who are sued for trespass over the disputed land requesting for N10 billion damages, which brings the issue of title to the disputed land to the fore requiring the joinder of the applicant as a necessary party for the determination of the dispute, showing the motion seek to preserve the suit and justice would not be done if the applicant who from day one is claiming to be part of the proceedings is shut out from suit; that the comment of the court below on the incompetence of the notice of appeal was obiter and unrelated to the particular issue of joinder of the applicant to the suit; that it would be a sad day for the court below to declare invalid a court process pending in the Court of Appeal; that Ogunbor (supra) holds any decision not requiring the parties to go back to the court on the same issue final, consequently the order refusing stay of proceedings is final; and that the Co-operative Bank case (supra) was in respect of a notice of appeal yet to be filed, while in the instant case there is a subsisting notice of appeal.
Mr. Aina, learned counsel for Geo Resources Limited, one of the respondents, (the claimant in the court below), relied on counter-affidavit filed on 25.5.11, to oppose the motion in the course of which he associated himself with the submissions made by learned senior counsel for the 1st respondent, adding that the applicant is not a party to the suit pending in the court below therefore he cannot ask for a stay of proceedings of the suit vide Liyange v. San (1998) 13 NWLR (Pt. 582) 500 at 508, Inter-contractors (Nig) Ltd. v. U.A.C. (1988) 2 NWLR (Pt. 76) 303 at 332, nor would stay of proceedings of the suit serve the ends of justice as it would impede the speedy dispensation of justice in the suit in violation of section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) read with the case of Ezude v. Ebiga (2009) 15 NWLR (Pt.1163) 1 at 25; and that the holding of the court below on the incompetence of the notice of appeal came as a ratio of the court below after arguments were heard from the parties, therefore the motion should be dismissed.
The applicant’s learned counsel concluded his submissions by adopting the buoyed submissions of learned senior counsel for the 4th – 5th respondents and urged for the motion to be granted.
The applicant applied to the court below to be joined as Intervener/codefendant to the suit between the respondent – the claimant (Geo Resources Limited) and the 1st – 6th respondents in suit No. HCJ/125/2008. The court below heard the application and dismissed it on the merit vide Exhibit ‘G’, the Ruling of the court below to that effect. The rights of the parties to the application dismissed by the court below in Exhibit G were thus finally determined by that court as there was nothing left for the parties to resort to the court below in respect of the subject-matter of joinder raised in the application and disposed of by it.
For in Falola v. Union Bank of Nigeria Plc. (2005) 2 S.C. (Pt.11) 62 at 75 – 77, Edozie, J.S.C., (as he was) using the words of Karibi-Whyte J.S.C., in the case of Igunbor v. Afolabi (2001) 11 NWLR (Pt.723) 148 at 165, referred to by Otunba Osinusi, for the applicant, held inter-alia that-
“The test has been to look at the nature of the order made rather than the nature of the proceedings resulting in the order. What has to be considered is whether the order has finally determined the rights of the parties in the proceedings in issue appealed against and not whether the rights of the parties in the substantive action have been finally disposed of.
The instant case as rightly submitted by appellant’s counsel is an interlocutory motion by the appellant to be joined as co-administrators with the respondents. The order of the learned trial Judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer and without any further reference to itself or any other court of coordinate jurisdiction. The order of the learned trial judge is therefore a final order. An appeal on the final order is of right under section 220(4) of the 1999 Constitution.”
See also Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (Pt.30) 617, Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 233 at 298, Balogun v. Adejobi (1995) 2 NWLR (Pt.376) 131 at 161 – 162, Ebokam v. Ekwenibe and Sons Trading Co. Ltd. (1990) 10 NWLR (Pt.622) 242 and Ifediora v. Ume (1988) 2 NWLR (Pt. 74) at 14.
Agbogunleri and Gomez (supra) merely explained the import of interlocutory and final decisions in general perspective without tying it to the position of an intending Intervener/co-defendant in relation to stay of proceedings pending appeal as in Ogunbor (supra), distinguishing Agbogunleri (supra) and Gomez (supra) from Ogunbor. I would agree with learned counsel for the applicant that the order of the court below refusing to join the applicant with the other defendants as Intervener/co-defendant in the substantive suit is a final order.
By section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) no leave of the court below or of this court is required to file an appeal to the court of Appeal against a final order given by the court below sitting at first instance, whether or not the grounds of appeal are of fact or mixed Law and fact or of law alone. Section 24(2)(a) of the Court of Appeal Act provides three (3) months within which an appeal can be filed against the final decision or order of the court below. The decision of the court below was given in Exhibit G on 11.6.2009. The appeal was filed in the court below in Exhibit J and J1 on 26.6.2009, within the said statutory period.
The applicant’s learned counsel admitted without demure that it was the mistake of counsel that led into obtaining the leave of the court below to file the appeal in Exhibits J and J1. Learned senior counsel for the 1st respondent contended that such mistake is inexcusable nowadays and the client is expected to suffer for the lapse of his learned counsel.
Paragraphs 8 – 9 of the supporting affidavit deposed –
“8. That Otunba W.O. Osinusi of counsel informed me and I verily believe him that all along he was under the mistaken belief that leave of court was needed before, he could validly file an appeal against the order refusing the joinder of the Applicant as a party to the action in the court below.
9. That I have been informed by counsel for the applicant and I verily believe him that it was not necessary to seek leave of the court below for the appeal against the Ruling dated 11th June, 2009 to be Properly constituted.
However, it is proposed to amend the Notice of Appeal lodged on the 26th June, 2009 by deleting the endorsed leave recited thereon. The Amended Notice of Appeal which has been filed separately along herewith is now produced and shown to me marked Exhibit L’.”
The respondents did not challenge the depositions above frontally. Their respective general traverse of the said pieces of deposition amounts to admission by them that fault of counsel was responsible for the circuitous and unnecessary route taken by applicant’s learned counsel to file the appeal in the court below on 26.6.2009. The reason for the amendment of the notice of appeal therefore arose from legal miscalculation of counsel who frankly admitted same with candour: good reason to give sympathetic consideration to the prayer for amendment sought by the applicant – See Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 374 per the judgment of Olatawura, J.S.C., (as he was now of blessed memory) –
“A mistake of counsel readily admitted by counsel is part of the honour of counsel which is relied upon by court not to visit the mistake of counsel on litigants.”
To show the test of what is an interlocutory or final decision may not be easy to appreciate was acknowledged by the Supreme Court in Igunbor (supra) at 165, where Karibi-Whyte J.S.C., (as he was) held inter-alia that –
“The determination of the question whether an order is interlocutory or final has never been one of mean difficulty…”
See also Gomez (supra) at 241- 258.
The same difficulty confronted learned senior counsel in the present application as shown in their divergent submissions on it (supra).
In my respectful view, error of judgment of counsel in a difficult terrain of the law as to what is a final or interlocutory decision is pardonable and a client should not be penalized for such lapse. The applicant’s learned counsel is therefore not to blame for the initial error of treating the order in question interlocutory. Applicant’s learned counsel has now seen the light. He should be allowed to retrace his steps by correcting the erroneous notion previously entertained by him that the order in question is interlocutory. Procedural blunder or mistake of counsel in the course of prosecuting any matter in court is readily forgiven by the court which exists to do justice according to law – See Nwadike v. Nwadike (1987) 4 NWLR (Pt.65) 394 at 403 – 405, A-G Oyo State v. Fairlakes Hotel Ltd. & Anor. (1988) 12 S.C.N.J. (Pt.1) 1 at page 14.
In view of the fact that the appeal against the Ruling of the court below was filed on 26.6.2009, fifteen days after the date of delivery of the Ruling on the motion, it was filed within the statutory period of three (3) months stipulated by the last limb of section 24(2) (a) of the court of Appeal Act.
The grounds of appeal – mixed law and fact – contained in the said notice of appeal are also validated by section 241(2)(a) of the 1999 constitution.
The subordinate view of the court below on the notice and grounds of appeal cannot hamstring the court to approach the application on clean slate in its concurrent original jurisdiction to come to even an entirely different reasoning and conclusion on it as an original motion – see Ali & Anor v. Adelanwa (1986) 4 C.A. (Pt. 11) 39.
The application does not therefore come to this court as an appeal to warrant the contention that because the holding of the court below on the incompetence of the notice and grounds of appeal was not appealed against it remains binding on the parties and the court – see the old English case of Cropper v. Smith (1883) 24 Ch.D 305 at 308 to 309. For the removal of doubts, the consideration of the application does not involve sitting on appeal over how the court below exercised its discretion in the matter, but it calls for independent exercise of the discretion on the new materials placed before the court in its alternative co-ordinate jurisdiction over the application.
The amendment sought to be made of the original notice of appeal, Exhibit J, is to delete the words expressing the leave granted applicant by the court below to file the appeal and to drop the names of the 2nd and 3rd respondents therefrom on account of the withdrawal of the case against them in the court below as their presence on the appeal is no longer necessary. The proposed amendment is therefore harmless and merely routine – see Adelaja v. Alalade (1994) 7 NWLR (Pt.357) 537; Gambari v. Mahmud (2008) 14 NWLR (Pt.1197) at 209, Okpala & Anor. v. Ibeme & Ors. (1989) 1 N.S.C.C. 567. I hereby grant the amendment sought.
There is in my view, nothing objectionable to granting a deeming order for an amended notice or appeal to be deemed properly filed. First the amendment of a notice of appeal ante-dates its existence – See Unity Bank Plc. And Anor. v. Edward Bouari (2008) 7 NWLR (Pt.1085) 372 at 399, where the Apex Court held in the lead judgment of Ogbuagu, J.S.C., (as he was) that-
“As a matter of fact, an amended notice of appeal, is certainly not a new notice of appeal. This is because and this is also firmly settled that an amendment, relates back to the date in which the document, was originally filed just an amended statement of claim.”
Second, once appropriate filing fee is paid for deeming an amended notice of appeal or any court process properly filed, a deeming order can be made covering the already filed court process normally to take effect on the date of the order – See Otunba Ojora v. Agip Nig. Plc. & Anor. (2005) 4 NWLR (Pt.916) 515 at 541 – 542 following the Supreme Court cases of Erisi v. Idika (1987) 4 NWLR (Pt.66) 503 at 511, 518, Abaye v. Offili and Ors. (1986) 1 S.C. 231 at 278, Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710 at 726,734, and Adelaja v. Alade (supra) at 543 per the lead judgment of Kutigi, J.S.C. (later C.J.N.) to the effect that once the requisite filing fee for deeming an amended notice of appeal duly filed is shown to have been paid the prayer for deeming it filed can be granted. On the face of the motion paper it is evident that filing fee was paid for the deeming order in prayer (2) thereof. I hereby grant it. The amended notice and grounds of appeal in Exhibit L are deemed filed and served today.
The applicant’s attempt to be made a party to the said suit – HCJ/123/2008 between Geo Resources Limited and the other respondents – was refused by the court below. Presently, the question to decide is not whether the 4th – 5th respondents are the tenants of the applicant in the disputed piece of land to justify the joinder of the applicant to the suit as Intervener/co-defendant, as that weighty issue belongs to the main appeal, so in order to avoid pre-empting the main appeal arguments proffered in that direction will, with immense respect, be sidelined in the consideration of the application.
Paragraphs 21 – 22 of the affidavit in support of the application deposed –
“21. That I am informed by Otunba Osinusi and I verily believe him that the Grounds of Appeal as contained in Exhibit ‘J’ disclosed an arguable appeal with a chance of success.
22. That I verily believe from information received from Otunba Osinusi of counsel that if the proceedings in the court below is not stayed pending the determination of the appeal lodged by the Applicant, the merit of the case of ownership of the land in dispute would be determined in the absence of the Applicant and if the Appeal herein is successful it would amount to a pyrhic success.’,
Further to paragraphs 21 – 22 of the affidavit (supra), the other paragraphs of the affidavit on the prayers for an extension of time to apply for a stay of proceedings and for stay of proceedings showing similar application by the applicant in the court below was dismissed and the procedural steps taken by the applicant’s learned counsel, after recovery from indisposition, to package the present application were not boldly controverted by the respondents.
There is no gainsaying it that an applicant not a party to the substantive suit or who did not apply to be joined as a party to the suit cannot, ordinarily speaking, be allowed to benefit from an order staying proceedings of the suit pending the determination of an appeal against collateral proceedings with the substantive suit – See Liyange (supra). But it is a different ball game (if I may be permitted to put so) where the applicant has appeared against the refusal of the court below to join him as an Intervener/codefendant to the substantive suit. In such circumstance as stated above, a stay of proceedings in the substantive suit can be granted, not-withstanding the joinder of the applicant as a party to the suit has not crystallized, or is still subject-matter of further litigation on appeal, as in this case.
Arguments strenuously advanced by learned senior counsel for the 1st respondent and learned counsel for the respondent, (Geo Resources), that granting a stay of proceedings would stall the progress of the substantive suit indefinitely or expose the fortunes of the suit to the leisure/mercy of the applicant who is not a party to the substantive suit were also made in the case of Biocon Agrochemicals (Nig.) Ltd. & Anr (1996) 35 LRCN 244, where the facts culled from the law report were in respect of a contract for the sale of fish by the plaintiffs/respondents to the defendants/applicants as buyers and when the defendants and the Intervener sought to join the Intervener as the 4th defendant, the High court dismissed the application on the ground, among others, that the Intervener was not a necessary party. The Intervener and the defendants appealed to the court of Appeal. They lost. On appeal at the Supreme Court, the Intervener sought for stay of proceedings of the substantive suit in the High Court. The respondents’ principal arguments for opposing the application were that-
“… granting a stay of proceedings would work great hardship on the plaintiffs/respondents who have been waiting for over two years now for hearing to commence. It was further contended that the Intervener\applicant not being a necessary party to the suit would in no way be prejudiced if stay is refused…” (See page 251 of the law report).”
But the Supreme Court (comprising Uwais, C.J.N., Kutigi, Ogwuegbu, Mohammed and Onu, J.J.S.C) held at page 255 per the lead judgment of Kutigi, J.S.C., (later C.J.N.) –
“The appeal is ultimately about the refusal of the trial High Court to join the Intervener as a Co-defendant. Clearly if that appeal succeeds and the Intervener is ordered to be joined as such, then it would in my view render such an order nugatory if it should turn out that the trial before the High Court has been concluded. Simply stated any act which will tend to render any order of an appeal court nugatory will vigorously be resisted.”
Akilu (supra), Jadesimi (supra) are to be considered against the backdrop of Biocon (supra), as the latter is on all fours with the present application, while the former expressed the general position of the law on the exercise of discretion. Ezude (supra) cautioned against interference with proper exercise of discretion by trial court, while the present matter is not on the re-examination of the exercise of discretion by the court below, but how this Court will exercise independent discretion on the materials in the fresh application before it.
Liyange (supra), a Court of Appeal decision, held a non-party to the substantive suit cannot apply for a stay of proceedings of the substantive suit pending appeal over an order of temporary injunction. It was not an application for joinder of Intervener/co-defendant as in this case. It is accordingly distinguishable and has to be read subject to the overriding decision of the supreme court in Biocon (supra) dealing squarely with the rights of a would be Intervener/codefendant in respect of this kind of application. Intercontractors Nigeria Limited (supra) decided that a third party cannot ask for stay of execution of a judgment except he proves the judgment was obtained by fraud which like Liyange (supra) is distinguishable from this matter and must be read subject to the superior decision of the Supreme Court on the issue in Biocon (supra).
The alarm some of the respondents expressed that a stay of proceedings will give the applicant the license to incubate the case and/or stall proceedings in the substantive case indefinitely by letting the appeal lie fallow, though not pointedly deposed to in their counter-affidavits, is allayed by the in-built procedural safeguards in the Rules of court for getting rid of dilatory prosecution of appeals which may be deployed by the respondents at the opportune moment.
Balancing the said alarm or fear with the concern expressed in paragraph 22 of the applicant’s affidavit (supra) that in the event the appeal succeeds after the main suit in which the undenied paragraph 13 of the applicant’s affidavit deposed is ready for hearing had been decided by that court his success on appeal would be rendered nugatory the scale of equity should tilt in favour of granting the application, as to refuse it may, speaking advisedly, reduce the litigation on appeal to an empty shell akin to bolting the stable after the steed had escaped; more so the appeal, on face value, appears arguable.
Accordingly, there is substance in the application for extension of time to apply for stay of proceedings and for a stay of proceedings which I hereby grant: The proceedings in suit No. HCJ/125/2008 between Geo Resources Limited and the other respondents pending before the High court of Justice of Ogun State sitting in Ijebu-Ode in the Ijebu-Ode Judicial Division is hereby stayed pending the determination of Appeal No. CA/I/365A/2009 pending before the Court.
Prayer (5) of the motion paper (supra) for an extension of time to compile and transmit the record of appeal from the court below to this Court has merit and is hereby granted. The appellant/applicant is given 14 days from today to compile and transmit the said record of appeal in Suit No. HCJ/125/2008 to this court and cause same to be served on the respondents within the said 14 days – see Bicon (supra) and Order 8 Rule 4 of the Rules of this Court (supra).
The prayer for departure from the Rules of this court as rightly submitted by learned senior counsel for the 1st respondent and learned counsel for the respondent (Geo Resources Ltd) is incompetent and obsolete on account of the new provision in the Rules of the court empowering an appellant to, also, compile record of appeal where the Registrar of the court below neglected to compile same within the stipulated statutory period under Order 8 Rule 4 thereof – See Asol (supra).
Because departure from the Rules entails the skipping of the normal procedure stipulated by the Rules of Court such as the compilation of the record of appeal which may be dispensed with in place of the bundle of papers before the court upon which it may be directed that the appeal be heard. It is a discretionary remedy. It cannot be granted for the asking. Special reasons tallying with the interest of justice must be furnished by an furnished by an applicant before departure from Rules of the Court may occur – See in Re: The Vessel M.V. Lupex (1993) 2 NWLR (Pt.278) 670 at 679 – 680.
Accordingly, prayers (1) – (5) of the motion paper (supra) are hereby granted in terms of the motion paper, while prayer (6) thereof is struck out. No order as to costs.
ADZURA GANA MSHELIA, J.C.A: I have had the preview of the lead Ruling just delivered by my learned brother, IKYEGH, J.C.A. I am in complete agreement with the reasoning and conclusions contained therein, which I also adopt as mine. The application succeeds in part. Prayers 1-5 are hereby granted, while prayer 6 is refused and struck out. I abide by the order made as to costs.
MODUPE FASANMI, J.C.A.: I had the privilege of reading in draft the ruling of my learned brother Ikyegh J.C.A. just delivered.
The issues involved in the application have been painstakingly dealt with in the ruling. I adopt the reasons and conclusions reached therein.
Accordingly prayers (1 – 5) of the motion paper are hereby granted while prayer 6 is struck out. I abide with the order made on cost.
Appearances
Otunba W.O. Osinusi For Appellant
AND
Mr. Aina for Respondent – (Geo Resources Limited),
Miss. E.E. Ita),
Mr. B. Aiku, S.A.N. for 1st Respondent(with Mr. F. Idowu)
Mr B. Adesanya, S.A.N. for 4th-5th Respondents (with Mr. R.O. Alli). For Respondent
