ALHAJI SHAMUSIDEEN OLASENI & ANR. V. MUSIBAU KOLAWOLE OLASENI & ORS.
(2019)LCN/13816(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of October, 2009
CA/I/53/97
RATIO
A TRIAL COURT SHOULDNT CONTINUE TRIAL WHEN THERE IS A PENDING APPEAL
Therefore, a trial Court ought not to create a situation of hopelessness or helplessness by continuing with the hearing of the case notwithstanding the pending appeal and in this case also an application for stay of proceedings, which may likely succeed at the end, such an appeal would be rendered nugatory and a lot of time and money would, have been, avoidably wasted. See DEDUWA & ORS. V. OKORODUDU & ORS. (1974) 1 ALL N.L.R. (PART 1) 272 and EMMANUEL VS. WAPCIPCO LTD.. SUIT NO. CA/L/487/99; 2001 18 WRN 75 AT 82 -PER CHIDI NWAOMA UWA, J.C.A.
STAY OF EXECUTION: THE GRANTING OF STAY OF EXECUTION IS A MATTER OF DISCRETION
At this stage one would ask if there were facts placed before the court to enable the court to grant a stay of all proceedings. The principle of law as laid down in VASWANI TRADING COMPANY V. SAVALAKH AND CO. (1972) ALL NLR 922 OF 928 – 929 is still good law. In that case the Supreme Court held as follows:
“The granting of a stay of execution is a matter of discretion and therefore any action or conduct which tends to stifle the exercise of such discretion must be frowned at by the Court.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ALHAJI SHAMUSIDEEN OLASENI (Defendant/Appellant)
AND
MUSIBAU KOLAWOLE OLASENI (Plaintiff/Respondent)
AND
MASTER MUSIBAU KOLAWOLE OLASENI (SUING BY HIS NEXT FRIEND) ALHAJI SHAMUSIDEEN ALANI OLASENI (Plaintiff/Appellant) Appellant(s)
AND
1. MUSIBAU KOLAWOLE OLASENI
2. KUNLE SUBULADE
3. OLALEKAN AJASA ADEGUN
4. KAMORU AJANI OLASENI Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal arose from a consolidated action in the trial court, in respect of the same subject matter involving principally the same parties.
The then Plaintiff, the 1st Respondent herein, (Musibau Kolawole Olaseni) in Suit No. AB/7/96 commenced an action against the Appellant herein (Alhaji Shamusideen Olaseni) who was the Plaintiff in Suit No. AB/9/96 at the High Court, Abeokuta Judicial Division and claimed the following reliefs:-
“(a) Declaration of ownership of the parcel of land and building therein lying, situate and being at Plot No. 20 Block XVIII, Asero Scheme Layout, Abeokuta and entitlement to statutory right of occupancy thereon pursuant to purchase agreement executed on 9th December, 1991 by Auctioneer Chief Adepegba in favour of the Plaintiff.
(b) Order of Possession of the said parcel of land and building therein lying, situate and being at Plot No. 20 BLOCK XVIII Asero Scheme Layout, Abeokuta in favour of the Plaintiff.
(c) Injunction restraining the defendant his servants, agents, and privies from committing or continuing act of trespass on the said land and building thereon such as occupation of the land and building thereon, building construction or renovation or repairs.
(d) N2 Million Naira being rents collected by the defendant and general and special damages for local expenses incurred in Lagos and Abeokuta, tickets charges from U.S.A. and inconveniencies on all occasions that the Plaintiff visited Nigeria on account of getting the House from the Defendant.”
The Appellant as Plaintiff in suit No. AB/9/96 suing as next friend to Master Musibau Kolawole Olaseni (Jnr.) claimed against the Respondents jointly and severally the following reliefs:
“A sum of N25,000,000. 00 (Twenty-five Million Naira) being special and general damages for the trespass committed by the Defendants, their agents and servants when they damaged the Plaintiff’s landed property situate, lying and being at No. 23, Adegboyega Street, Asero Housing Estate, Asero, Abeokuta Ogun State.”
From the printed records, (pages 149 – 158) only the Respondent as Plaintiff in suit No. AB/7/96 led evidence in course of trial, at the conclusion of which the then learned Chief Judge I.B. Delano J., gave Judgment in favour of the Respondent in terms of the reliefs claimed by him and struck out the Appellant’s claim in Suit No. AB/9/96.
The Appellant being dissatisfied with the judgment appealed to this Court by a Notice of Appeal containing five (5) Grounds of Appeal dated 3rd March, 1997.
Five issues were distilled for determination. They are:
1. Having regard to the application for stay of proceeding pending before the Court of Appeal whether the learned Chief Judge was right in law to have heard the case.
2. Whether the Appellant was given a fair hearing.
3. Was the learned Chief Judge right to have dealt with the substantive matter in his determination of application for interlocutory injunction.
4. Was the Learned Chief Judge right in law to have struck out Suit No. AB/9/96 without any application and service of hearing notice to strike out.
5. Having regard to the Provisions of Land Use Decree, whether the Respondent’s Claim for Declaration of Ownership to land is still maintainable and whether the Court still possesses jurisdiction to grant such relief.
The background facts relevant for the proper determination of this appeal are stated hereafter. The Respondent in Suit No. AB/7/96 claimed that pursuant to an agreement for the purchase of the property known as Plot XVIII Asero Estate Layout, Abeokuta, Ogun State, he gave the sum of $16,000 (Sixteen thousand Dollars) to the Appellant to complete the purchase of the said property. The Respondent also contended that when the Appellant purchased the property at an auction he failed to hand over same, claiming to have bought the property for his child. The 1st Respondent claimed the reliefs as earlier set out in this judgment (paragraph 49 of the Statement of Claim, pages 15 – 16 of the record of Appeal).
From the printed records, the Statement of Claim was filed on 29th January, 1996, dated the same day. Two days later before the defence, precisely on 31st January, 1996 the Respondent filed an application for Interlocutory Injunction and prayed for the following order:-
“Order of Interlocutory Injunction restraining the defendant, his servants, agents and privies from committing or continuing act of trespass on the land marked RED and buildings marked BLUE respectively on the attached Survey Plan i.e. Exhibit ‘B’ such as occupation of the land and buildings, building construction or renovation or repairs.”
The application was opposed.
The learned trial Chief Judge in granting the application on 29th March, 1996 made the following order:-
“Finally, the application of the applicant is hereby granted. It is ordered that the Respondent, his servants, agents, privies and other tenants in the house shall vacate any part of the buildings they are occupying on or before April 2, 1996, thereafter, the doors of the building on the land should be locked by the Chief Bailiff under the supervision of the Chief Registrar. The Chief Registrar is hereby ordered on application of the applicant, by proper identification by Applicant’s counsel to release the keys to him anytime he is in Nigeria.” (Underlining mine for emphasis)
The Appellant being dissatisfied with the ruling appealed against same on 1st April, 1996 and thereafter filed an application for Stay of Execution and proceedings, both were refused by the trial court.
The Appellant (as Respondent in the application for Interlocutory Injunction) did not comply with the order as contained in the Ruling on or before April 2, 1996. The Respondent filed an application for committal on 3rd April, 1996 based on the order of Interlocutory Injunction which resulted in the order of bench warrant issued against the Appellant, for being absent on the day the application for committal came up for hearing.
The Appellant brought fresh applications for Stay of Execution and Stay of Proceedings before this Court, the fact of which was brought to the attention of the Learned Chief Judge. (See page 126 lines 20 – 22 of the printed record).
When the learned Chief Judge insisted on hearing the case, the Appellant brought a fresh application for stay of proceedings pending the determination of the application for stay of proceedings at the Court of Appeal.
On the day the application was to be argued, the Learned Senior Advocate in the Chambers of the Appellant’s Counsel wrote a Letter of Adjournment on the ground that the counsel handling the matter was indisposed. Despite the letter, the Court struck out the application on the basis that there was no medical report sent to the Court.
A similar application for stay of proceedings pending the determination of the one pending before this Court was filed. On the day the application was to be heard, the Appellant’s counsel was granted leave to withdraw his appearance while the application was struck out.
After the withdrawal of counsel, another counsel appeared and asked for an adjournment to enable him familiarizes himself with the case, the case was adjourned to 20th December, 1996 for hearing. On that date the new Appellant’s Counsel wrote a letter to the Court for adjournment and enclosed a Medical Certificate excusing him from duty for two days. The trial Court ignored the medical certificate and proceeded to hear the case in the absence of the Appellant and his counsel. Before hearing commenced in Suit No. AB/7/96, Suit No. AB/9/96 was struck out by the learned trial Chief Judge.
On 24th September, 2009 when this matter came up for hearing the Respondent was neither in Court nor represented by counsel even though the Respondent was served with the Hearing Notice on 2nd June, 2009.
There were two pending applications filed by the Respondent on 28th July, 1998 and 1st March, 1999 respectively, the first one to regularize his proposed brief of argument. On application by the learned counsel to the Appellant the applications were struck out for want of diligent prosecution.
Since the application to regularize the Respondent’s brief of argument was struck out the appeal was therefore argued on the Appellant’s brief alone.
In his brief of argument, the learned Appellant’s counsel Afolabi Fashanu Esq. submitted in respect of his first issue, that the Appellant had filed an application for Stay of Proceedings in the High Court pending the determination of an appeal against the ruling delivered on 29th March, 1996, the application was refused. A similar application was then filed at the Court of Appeal which fact was brought to the Notice of the learned trial Chief Judge.
Thereafter a fresh application for stay of proceedings pending the determination of the application for stay of proceedings at the Court of Appeal was filed. The learned Chief Judge in his Ruling of 15th November, 1997 refused to stay Proceedings before him and struck out the application in absence of counsel.
It was argued that the reasons for striking out the application are fundamentally wrong. Also, that a medical certificate is not necessary from counsel once the attention of the Court is called to the fact, learned counsel relied on the cases of UNIVERSITY OF LAGOS VS. AIGORO (1985) ALL N.L.R. 64 at 73 and SOLANKE VS. AJIBOLA (1968) ALL N.L.R. 47 AT 54 – 55.
It was submitted that the application was not an abuse of Court process. Further, that the earlier application that was dismissed was for stay of proceedings pending the determination of appeal against the ruling of 6th June, 1996 while the present application was for stay of proceedings pending the determination of application for stay of proceedings at the Court of Appeal.
It was submitted that it was wrong for the learned Chief Judge to have continued with the hearing of the case because it would frustrate the application at the Court of Appeal and would render the result of the application nugatory, the case of MUHAMMED &. ORS. VS. OLAWUNMI &. ORS. (1993) 4 NWLR (PART 287) PAGE 254 ON 273 was relied upon.
We were urged to resolve this issue in favour of the Appellant and set aside the whole judgment.
In his issue two, argued with issue four, it was submitted by the learned Appellant’s counsel that the Ruling of the learned Chief Judge in the application for Interlocutory Injunction in the course of proceeding dealt extensively on the merit or otherwise of the case. Further that the order made by the learned Chief Judge was never sought for and is not consequential but substantive and mandatory. The following cases were referred to, CHIEF REGISTRAR, HIGH COURT OF LAGOS STATE VS. AMRS NAVIGATIONS LTD. (1976) 1 S.C. 3 AT 40 – 41 and ALHAJI L. A. GBADAMOSI & ORS. VS. CHIEF ALETE & ANOR. (1993) 2 NWLR (PART 273) 113 AT 122 – 123, amongst others.
It was submitted further that the Appellant dissatisfied with the ruling on the Interlocutory application appealed against the ruling and filed an application for stay of execution which was refused, the stay of proceedings on application was also refused, the alternative prayer to transfer the matter to another court was not granted. It was submitted that in the course of proceedings, an application for committal was brought by the Respondent for failing to comply with the order of injunction, after which the trial court ordered a bench warrant to be issued against the Appellant for his absence on 6th June, 1996.
It was argued that a party in a civil action need not be present in Court once represented by counsel; the following cases were cited and relied upon. USIKARO V. ITSEKRI COMMUNITY LAND TRUSTEES (1991) 2 NWLR (PART 172) 150 AT 174 – 175, and KEHINDE V. OGUNBUNMI. (1967) N.L.R. 326 AT 330. It was submitted that on 20th December, 1996 when the matter was fixed for hearing, the new Appellant’s counsel who had first been briefed sought for an adjournment on ground of ill health, sent a letter with a medical certificate excusing counsel from work on 19th – 20th December, 1996. The learned trial Chief Judge refused to grant an adjournment and proceeded to hear the case, which learned counsel submitted is a wrongful exercise of discretion, the case of UNIVERSITY OF LAGOS VS. AIGORO (supra) was referred to.
It was submitted further that with the pending application for stay of proceedings at the Court of Appeal the learned Chief Judge ought to have adjourned the matter, the case of OYEBO & ORS. VS. CHIEF J.O. ADEOSUN & ORS. (unreported) Suit No. CA/I/113/92 delivered on 26th March, 1997, per Mukhtar, J.C.A (as he then was) was referred to, also SAW V. EGEIBON (1994) 6 NWLR (PART 348) 23 AT 49 – 53.
It was argued that after the hearing of 20th December, 1996 no hearing notice was issued for subsequent adjourned dates for hearing until judgment was delivered on 21st February, 1997. It was submitted that since the Appellant and his counsel did not appear on 20th December, 1996 it was a breach of fair hearing when they were not notified of subsequent adjourned dates for hearing. Learned counsel relied on the following cases:- JULIUS BERGER NIGERIA LIMITED VS. FEMI (1993) 5 NWLR (PART 296) 612 AT 620 – 621, OKAFOR VS. ATTORNEY-GENERAL OF ANAMBRA STATE (1991) 6 NWLR (PART 200) 659 AT 670; OKOYE & ORS. VS. NIGERIA CONSTRUCTION & FURNITURE COMPANY LTD. (1991) 6 NWLR (PART 199) 501 AT 531.
Learned counsel submitted that Suit No. AB/9/96 was struck out on 20th December, 1996 without any application and no hearing Notice was served on the Appellant before the striking out. Further, that the whole proceedings deprived the Appellant of his fundamental right to fair hearing which rendered the whole proceeding a nullity, reliance was placed on the following cases: OKAFOR VS. ATTORNEY GENERAL OF ANAMBRA STATE (SUPRA), ADEYEMI VS. Y.R.S. IKE-OLUWA & SONS LIMITED (SUPRA), ADIGUN V. ATTORNEY-GENERAL OYO STATE (1987) 1 NWLR (PART 53) 678 AT 709.
In arguing his issue three, argued together with issue five, the learned Appellant’s counsel submitted that by virtue of Section 1 of the Land Use Act 1978, all the land in the State is vested in the Governor of the State and that the only right or interest that any person or community may be entitled to in respect of any land is a Right of Occupancy, statutory or customary. Further that after 1978, a Court of Law could only grant a Declaration of Right of Occupancy and not a Declaration of Ownership of Land as the learned Chief Judge did, Section 40 of the Land Use Act was referred to. It was submitted that the learned Chief Judge had no jurisdiction to grant a Declaration of Ownership to the property in favour of the Respondent. Reference was made to the following cases: ASEIMO & ORS. VS. ABRAHAM (1994) NWLR (PART 361) 191 AT 210, OGUNMOLA VS. EIYEKOLE (1990) 4 NWLR (PART 146) 632 AT 646 – 647.
We were urged to resolve this issue in favour of the Appellant and strike out the claim for Declaration of Ownership granted by the lower Court.
The sequence of events is important and necessary for a proper determination of the issues raised in this appeal. Following the Interlocutory Ruling of 29th March, 1996 several applications were filed, argued and determined by the trial Court. On 15th April, 1996 when the application for stay of execution was argued and refused, before the arguments were taken, the learned senior counsel to the Appellant Chief Coker drew the attention of the Court to the Notice of Appeal filed in respect of the Ruling, he submitted that he had substantial grounds of appeal and argued that the Court had decided the case in issue by asking the Appellant to vacate the house. (Page 92 of the printed records). Several applications then followed.
On 18th April, 1996 another application for stay of execution was filed at the Court of Appeal, the Respondent was served with same, the same day. On 3rd May, 1996 a Notice to show cause why an order of attachment should not be made against the Appellant dated 23rd April, 1996 was filed. On 9th May, 1996 the Appellant filed a Motion on Notice for a stay of proceedings in the trial court pending the determination of the Appeal filed by the Appellant against the ruling of 29th March, 1996 in the alternative a transfer of the suit to another court within the division. On 6th June, 1996 the application was refused, on the same day the Appellant filed a preliminary objection to the committal proceedings instituted against him. When the committal matter came up for hearing on the same day, the learned counsel to the Appellant asked for adjournment of the application for committal to enable the Court of Appeal determine the application before it. Following the application, at page 126 of the printed records the learned Chief Judge held:
“It is with regret that I cannot grant the application of counsel for adjournment. The application shall now be heard:
Thereafter, the learned trial Chief Judge insisted on hearing the application for committal. The learned counsel to the Appellant Mr. Fashanu asked for the leave of court to withdraw from the matter to enable the Appellant engage another counsel, the leave to withdraw from the matter was refused and the court asked that the matter should proceed, until a counsel, one Joseph as a friend of the court implored the Court to adjourn the hearing, which the court allowed but, made an order for bench warrant to be issued for the arrest of the Appellant who should be kept in police custody until 4th July, 1996 when the case was fixed for hearing.
On 30th July, 1996 an application ex-parte was filed asking that the Appellant be served the motion setting down the hearing of the case, to be served by substituted means: i.e. by pasting at the front door of the Appellant’s last known place of abode. The application was moved and granted on 14th October, 1996.
On 12th November, 1996 another application for stay of proceedings pending the determination of the application for stay of proceedings pending at the Court of Appeal, Ibadan was filed. Paragraphs 8 and 9 of the supporting affidavit read as follows:
”8. That a fresh application for stay of proceedings was made at the Court of Appeal and it came up for hearing on 16th October, 1996.
9. That the application has now been adjourned to 25th February, 1997for hearing.”
It is clear from the above deposition that the trial Chief Judge was made aware of the pending application for the Stay of Proceedings before the Court of Appeal.
The application for Stay of proceedings filed on 12th November, 1996 came up for hearing on 14th November, 1996. On the application of learned counsel to the Appellant on the basis of ill health, the application and substantive matter were adjourned till the next day, 15th November, 1996.
On 15th November, 1996 Chief Coker (SAN) wrote a letter that the matter be adjourned for a few weeks or that the matter be transferred to another Judge. The trial judge ruled thus: (page 138 of the printed records)
“It is my view that the motion is an abuse of process of Court. There is no medical evidence that he is sick. The motion shall be struck out. It is accordingly struck out. ”
The Court went further:
COURT:- ”Having regards to the letter of Chief Coker that Fashanu, of counsel, is sick the case will be given a short adjournment to enable Fashanu, of counsel to recover from his illness.
The Chief Registrar should write to Fashanu, of counsel, the next adjourned date pointing out that the Court intends to go on with the case on the next adjourned date.
Case adjourned November 28 for definite hearing.”
Another application for stay of proceedings in this case pending the determination of the application for stay of proceedings pending at the Court of Appeal, Ibadan was filed on 26th November, 1996 dated same day. Paragraphs 4, 5, 8 and 9 of the Supporting Affidavit (page 142 of the printed records) as in the previous application, made it clear that the application before the Court of Appeal had been fixed for 25th February, 1997. On 25th November, 1996 the application was struck out after learned counsel withdrew his appearance for the Appellant, on the Appellant’s family’s request. Mr. Akinleye then appeared and said he had just been briefed a day before and asked for an adjournment to enable him familiarize himself with the case. The case was adjourned to 20th December, 1996 for definite hearing. On that date, Mr. Akinleye sent a medical certificate excusing him from work on 19th and 20th December, 1996. The Appellant was not in Court. No defence had been filed by the Appellant in Suit No. AB/7/96 and no Statement of Claim had been filed by the Appellant in Suit No. AB/9/96. The learned trial Chief Judge struck out AB/9/96 and proceeded with the hearing of Suit No. AB/7/96 and on that day five (5) witnesses (PW1 – PW5) testified. The matter was adjourned to 24th January, 1997 on which date PW6 – PW8 testified. The plaintiff closed his case and the Court adjourned for judgment fixed for 21st February, 1997. On that day the judgment was delivered which is the basis of this appeal.
The Appellant’s first issue reads:
”Having regard to the application for stay of proceeding before the Court of Appeal, whether the learned Chief Judge was right in law to have heard the case.”
It is on record that the Appellant filed an application for stay of proceedings pending the determination of an appeal against the Interlocutory Ruling of the trial court delivered on 29th March, 1996 which was refused, which necessitated filing a similar application at the Court of Appeal, which as earlier stated in this judgment, was brought to the attention of the learned Chief Judge (See page 126 of the printed records). In the fresh application filed for stay of proceedings pending the determination of the application for stay of proceedings at the Court of Appeal, the supporting affidavit also made it clear that there was a pending application at the Court of Appeal, page 132 – 133 of the printed records, especially page 133 paragraphs 8 and 9 of the supporting affidavit, similar to paragraphs 8 and 9 in the affidavit in support of the earlier application, the paragraphs were earlier reproduced.
The learned trial Chief Judge in striking out the second application for stay of proceedings held that it was an abuse of court process. On the face of the applications, while the first was an application to stay proceedings pending the determination of appeal against the ruling of 6th June, 1996, the second application was for stay of proceedings pending the determination of application for stay of proceedings at the Court of Appeal. The application filed on 12th November, 1996 was struck out in absence of counsel who was said to be sick and a letter sent on his behalf by a Senior Counsel in the same firm. This necessitated the filing of the application of 28th November, 1996 and cannot be termed as an abuse of court process, as the learned trial Chief Judge did.
The Appellant appealed against the Ruling of 29th March, 1996 which he alleged had far reaching effect on the substantive matter and is one that ought to be made at the conclusion of the case since possession is one of the reliefs claimed in the main claim, granted in the interlocutory Ruling. This is also the reason for applying that further proceedings be stayed until the application is heard, same having been refused by the trial Chief Judge.
From the records of Court, a number of events occurred in course of proceedings between the date of the refusal of the first application for stay of proceedings in the trial court, the subsequent applications of 12th November, 1996 and 28th November, 1996.
At this stage, it is noteworthy that when a party is appealing against the decision of a Court it must always be realized that such Appellant is merely exercising his constitutional right. The court against whose judgment an appeal has been lodged must always bear in mind that its decision may be upturned on appeal.
Therefore, a trial Court ought not to create a situation of hopelessness or helplessness by continuing with the hearing of the case notwithstanding the pending appeal and in this case also an application for stay of proceedings, which may likely succeed at the end, such an appeal would be rendered nugatory and a lot of time and money would, have been, avoidably wasted. See DEDUWA & ORS. V. OKORODUDU & ORS. (1974) 1 ALL N.L.R. (PART 1) 272 and EMMANUEL VS. WAPCIPCO LTD.. SUIT NO. CA/L/487/99; 2001 18 WRN 75 AT 82 – 83. For the mere reason that the Appeal may succeed, is enough to allow the Court of Appeal in this case to consider whether to stay proceedings or not. This Court would have had the opportunity of looking into the grounds of appeal as against the application for stay of proceedings, irrespective of their refusal and or striking out of similar applications before the trial court. It is not the trial court to decide for the Court of Appeal that the grounds of appeal are not arguable or that the stay could be refused and thus proceeding with the hearing of the substantive matter as did the trial Chief Judge in this case. It is the Court of Appeal to decide whether the grounds of Appeal are frivolous or not in granting or refusing the pending application for stay of proceedings. See EZE V. OKOLONJI (1997) 7 NWLR (PART 513) 515.
In the instant case, what the trial Chief Judge did was to pre-empt the Court of Appeal in the Application for Stay of Proceedings by proceeding with the hearing of all the applications that were offshoots of the Ruling being appealed against, for instance, the application for contempt/committal, bench warrant being issued and served on the Appellant, and the application for substituted service preceding the hearing of the substantive case.
In the present case, in the supporting affidavit to the applications for stay of proceedings in the trial court and in open court when the applications came up for hearing it was made clear to the trial Chief Judge by counsel to the Appellant that there was an appeal lodged against the ruling of 29th March, 1996 and an application for stay of proceedings pending before the Court of Appeal and the application fixed for 25th February, 1997. Several times, learned counsel indicated he wanted an adjournment in view of the pending application and appeal before the Court of Appeal and due to ill health. Later an application for adjournment was sought by the Appellant by a new counsel who had been newly briefed; despite all these, the lower court proceeded to strike out Suit No. AB/9/96 in which the Appellant was the plaintiff and proceeded with hearing in Suit No. AB/7/96 and took five witnesses on the first day of hearing. I am of the opinion that the striking out and the hearing were too hasty.
When there is an application before the Court of Appeal for stay of proceedings in the High Court (as it is in this case) it is wrong for the High Court to have proceeded to hear all sorts of applications and going ahead to strike out one of the suits that made up the consolidated suit and proceeded with the other. With the pendency of the application for stay of proceedings, the proper step for the High Court to have taken in the circumstances of this case was to adjourn the hearing of the applications that were offshoots of the Ruling being appealed against and applications towards the hearing and continuation of the matter, pending the determination of the applications for stay of proceedings by the Court of Appeal. The trial court was wrong to have entertained the Respondent’s application for contempt/committal, the issuance of bench warrant, and the motion to set down the matter for hearing amongst others. See AMALGAMATED TRUSTEES LTD. VS. NIMB (2001) NWLR (PART 694) PAGE 237 also MOHAMMED V. OLAWUNMI (1993) 4 NWLR (PART 287) 254 and NIGERIA ARAB BANK LTD. VS. COMEX LTD. [1999) 6 NWLR (PART 608) 648.
In OLAWUNMI’s case (supra) the Supreme Court had this to say in a similar situation at page 277 – 278 per Olatawura J.S.C.:
“This unfortunate attitude in disregarding the process of the Court of Appeal borders on judicial impertinence. It is an affront to the authority of the Court of Appeal. All the courts established under our constitution derive their powers and authority from the constitution. The hierarchy of Courts shows the limit and powers of each Court. To defy the authority and powers of a higher court appears to me undesirable and the ratio of Vaswani’s case, the best and reasonable course of action was to have adjourned the matter before him pending the determination of the application before the Court of Appeal.”
The resultant effect is that the lower court was wrong to have entertained the application to strike out Suit AB/9/96 and to have proceeded to hear Suit No. AB/7/96, in view of the pending applications before the Court of Appeal and I so hold.
I agree with the learned Appellant’s counsel that the effect of the hearing of the substantive matter was to frustrate the application at the Court of Appeal and to render the result of the application nugatory should the application be granted.
At this stage one would ask if there were facts placed before the court to enable the court to grant a stay of all proceedings. The principle of law as laid down in VASWANI TRADING COMPANY V. SAVALAKH AND CO. (1972) ALL NLR 922 OF 928 – 929 is still good law. In that case the Supreme Court held as follows:
“The granting of a stay of execution is a matter of discretion and therefore any action or conduct which tends to stifle the exercise of such discretion must be frowned at by the Court.”
The learned Chief Judge after refusing the applications for stay of execution and stay of proceedings urged the parties to proceed with the substantive matter even though the application that gave rise to the appeal was filed only two (2) days after the statement of claim was filed. As at 29th March, 1996 the date of the ruling, the Appellant had not filed his defence in Suit No. AS/7/96 and had not filed his statement of claim In Suit No. AB/9/96.
Mr. Fashanu who initially handled the matter tried severally to obtain an adjournment until the appeal and application before the Court of Appeal could be heard, but to no avail, he was later discharged from the matter. Mr. Akinleye who later took over the matter also pleaded for adjournment to familiarize himself with the case and the matter was given five (5) days adjournment. On that day, it was in the absence of the appellant and his counsel who was reported ill that five witnesses testified, the witnesses were not cross examined. On the next adjourned date three (3) witnesses testified PW6- PW8 and they were also not cross examined, the Appellant and counsel were not in Court. The Court on that day closed the case for the Plaintiff; there was no defence and no addresses of counsel, the court adjourned for judgment.
In MOHAMMED V. OLAWUNMI (supra) also cited by the learned Appellant’s counsel, the Supreme Court condemned the attitude of the court in not giving a hearing within the meaning of such term as provided in the constitution and also told off the High Court in the manner it handled the case where there was a pending appeal in the Court of Appeal, yet the lower court continued with the proceedings not withstanding that it was brought to its notice that an appeal had been lodged in the Court of Appeal. The non-challant attitude of the trial court was rebuked in that case, who shut his eyes to the principles enunciated in VASWANI TRADING COMPANY V. SAVALAKH AND CO. (supra). The Court was made aware that the application before this court had been fixed for 25th February, 1997; there was no harm in adjourning the matter to a date after the Court of Appeal application. The reason given by the court is that the adjournments were being sought by the Appellant and his counsel with the view of deliberately delaying the hearing of the substantive matter. In my considered view this reason is not good enough. The end result is that, I hold that the learned Chief Judge should not have proceeded with the hearing of the case with the pending application before the Court of Appeal. I resolve the first issue in favour of the Appellant.
At this stage I shall resolve the Appellant’s third issue before the second, and the rest of the issues raised if need be.
In the Appellant’s third issue, the question was whether the learned Chief Judge was right to have dealt with the substantive matter in his determination of the application for interlocutory injunction. A close look at the terms of the interlocutory order sought in the lower court (earlier reproduced in this judgment) at page 17 of the printed records, when compared with the claim in Suit AB/7/96, especially paragraph 49(a), (b) and (c) also earlier reproduced (Page 15 of the printed records) shows that paragraph (a) sought for a declaratory order of ownership, paragraph (b) order of possession and paragraph (c) an injunctive order restraining the Appellants, his servants, agents and privies from committing or continuing acts of trespass on the said land and buildings, such as occupation of the land and buildings.
From the order of the learned Chief Judge in granting the application (at page 74 lines 16 – 24 of the printed records) in the supposed consequential order, it was ordered as follows:-
“Finally, the application of the Applicant is hereby granted. It is ordered that the Respondent, his servants, agents, privies and other tenants in the house shall vacate any part of the buildings they are occupying on or before April 2, 1996. Thereafter, the doors of the buildings on the land should be locked by the Chief Bailiff under the supervision of the Chief Registrar and the keys be kept in the custody of the Chief Registrar. The Chief Registrar, is hereby ordered on application of the Applicant, by proper identification by Applicants counsel, to release the keys to him anytime he is in Nigeria. ”
From the above order, the ruling has dealt extensively on the issues which were to be determined in the substantive case as rightly argued by the learned Appellant’s Counsel. The Ruling resolved conflicts in the affidavit evidence of the two parties, which could only properly be resolved on leading oral evidence on both sides, especially on facts and documentary evidence on which the claim of either or both parties may eventually depend on. For instance the learned Chief Judge’s treatment of Exhibits AO, Exhibit AO1 and details of telephone conversations between the parties (between Nigeria and the United States of America), these were materials used by the learned Chief Judge in arriving at his Ruling. The orders in my view are far from interlocutory, they are mandatory. See page 70 of the records and page 7 of the Appellant’s brief.
The so called consequential order seems to have granted more or less the orders sought in the main claim, (paragraph 49(a), (b) and (c)) to me it seems like a final judgment without a limited period. The order is substantive and has far reaching effect on the main case. Again, possession is one of the reliefs claimed in the main case, it has been granted in the interlocutory ruling, the injunctive relief restraining the Appellant from continuing acts of trespass, by this too the Appellant has been adjudged a trespasser at the interlocutory stage. From the foregoing the core of the case has been removed from the claim.
It has been said over and over again that in an interlocutory application, the court must avoid making any observation in the ruling which might appear to prejudge or predetermine the main issues in the proceedings relating to the interlocutory application and which may have the effect of affecting the merits of the substantive case or remove the basis of the main case. See KOTOYE VS. SARAKI & ORS. (1994) 7 NWLR (PART 357) 414 AT 444, ADEYEMI VS. Y.R.S. IKE OLUWA & SONS LTD. (1993) 8 NWLR (PART 309) 27 AT 52.
In GLOBE FISHING INDUSTRIES LTD. VS. COKER (1990) NWLR (PART 162) 265 AT 301, the Supreme Court, per Akpata JSC in a similar situation held as follows:-
“The Court should always refrain in its ruling in an application for Interlocutory Injunction from resolving matters which should be adjudicated upon at the trial. It should not make pronouncements which would make the trial a mere formality and a mockery of special procedure.”
From the orders made in the ruling, obviously the Appellant would be disillusioned and would imagine that the final judgment would not be fair to him; the Appellant’s learned counsel in his submission argued that the final judgment in this case would not have been given in all fairness. I agree with him. The learned Chief Judge was wrong to have dealt with the substantive matter in his determination of the application for Interlocutory Injunction and I so hold.
Having resolved issue one in favour of the Appellant, in holding that the learned trial Chief Judge ought not to have proceeded with the hearing of the case in view of the pending applications before the Court of Appeal, there is no need to look into whether the Appellant was given fair hearing in course of the trial before that court. Resolution of issue two is not necessary but, for whatever it is worth because fair hearing is fundamental in every trial, I would examine it.
The second issue reads:
”2. Whether the Appellant was given a fair hearing. ”
On 20th December, 1996 when the matter came up for hearing the new Appellant’s counsel who had just been briefed was not in court, he sought an adjournment on the ground of ill health and wrote a letter with a Medical Certificate excusing him from work on 19th and 20th December, 1996 (page 148 of the printed record). This was an opportunity for the Court to have adjourned the matter. It is surprising that in spite of the medical report, the court refused to grant the adjournment and proceeded to hear the case and took five witnesses. I agree with the learned counsel to the Appellant that under the circumstances at hand it is a wrongful exercise of discretion. See UNIVERSITY OF LAGOS VS. AIGORO (supra). After the adjournment was refused on 20th December, 1996 there is nothing on record to show that when the matter was adjourned to 24th January, 1997 for further hearing that fresh hearing Notice was issued, and none was shown to have been issued until judgment was delivered. I am in agreement with the learned counsel to the Appellant that in view of the fact that the Appellant and his counsel were absent on 20th December, 1996 it was a breach of right of fair hearing.
With a close look at the proceedings from the date this matter came to court, it seemed like the trial Chief Judge was determined to proceed with the hearing of the matter irrespective of whatever applications had been brought before him and or before the Court of Appeal. A decision is always better arrived at when both parties are placed on equal footing to put forward their cases before the court.
Even though a motion or appeal pending in an appellate court does not necessarily mean that the lower court should stop all further proceedings. The High Court must not leave the Court of Appeal in a state of helplessness. In NIGERIA ARAB BANK LTD. VS. COMEX (supra) it was held by Pats-Acholonu J.C.A (as he then was) at page 666 – 667 thus:
“It is true to say that, a motion or an Appeal pending in an appellate court does not necessarily mean that the court below should stop all further proceedings but a High Court in obedience to the hierarchical nature of the court must try not to foist on the appellate court a situation of utter helplessness thereby leaving the Court of Appeal with nothing but a dead baby.”
See DEDUWA’s case (supra) and EMMANUEL’s case (supra). The continuation of hearing despite the efforts made by the Appellant to the contrary is contrary to the principles of fair hearing, more so where the interlocutory ruling appealed against is alleged to have determined the real issues in the substantive case. At a stage, the trial court heard the contempt proceedings for non compliance with the order of injunction made in the ruling, at another time issued a bench warrant against the Appellant. The application to transfer the case to another judge was never considered even though the learned trial Chief Judge stated that he would consider same at the appropriate time. See OMONIYI VS. CENTRAL SCHOOLS BOARD, AKURE (1988) 4 NWLR (PART 89) 448. Also SALU V. EGEIBON (1994) 6 NWLR (PART 348) 23 AT 49 – 53.
I am left with the view that the Appellant was being stampeded to proceed with the hearing of the matter. The judgment at the end was delivered on 21st February, 1997 a date preceding the application fixed at the Court of Appeal for 25th February, 1997. I am of the considered opinion that there was no fair hearing.
Having resolved the Appellant’s issues one and three in his favour, resolution of issues four and five would be superfluous. The need to look into whether there was an application to strike out Suit No. AB/9/96 in course of proceedings does not arise, having held that the trial court should not have proceeded with the matter. Similarly, whether the trial court still possesses jurisdiction to grant the reliefs sought in the Respondents’ claim having regard to the provisions of the Land Use Decree, should be left for the trial judge at the appropriate time.
In the prevailing circumstances the appeal succeeds. In the final conclusion, I make the following orders: The order striking out Suit No. AB/9/96 is unjustified and must be set aside, same is hereby set aside.
Similarly, I set aside the orders made in the final judgment of the lower court as being void. In its place, I make an order that the Suit be remitted to another judge of Ogun State High Court for retrial.
I award costs of N30,000.00 (Thirty thousand Naira) in favour of the Appellant.
CLARA BATA OGUNBIYI, J.C.A.: I read in draft the lead judgment just delivered by my brother, Uwa J.C.A. I subscribe to same and state that the case had certainly not been given a fair trial at the lower court. The principle of fair hearing is firmly enshrined in our constitutional provision which is the grandnum. Justice is that which should be done to all parties and to be accorded the status, it must be seen to be so.
The lower court had shown a dire disrespect to court process as seen in the case at hand which had fallen far below the expectational standard. I therefore agree with the reasoning and conclusions arrived thereat by my brother that the appeal on the totality has merit and I also allow same in terms of the lead judgment inclusive of costs.
MODUPE FASANMI, J.C.A.: I have read the judgment just delivered by my learned brother, C.N. Uwa, J.C.A. I agree with the analysis of the issues and the conclusion reached in the judgment including the orders made. I have nothing more to add.
Appearances
Olusola Idowu Esq;
A. O. Adeleye (Miss.)For Appellant
AND
For Respondent
