AMCON & ORS v. NICON INVESTMENT LTD & ORS
(2022)LCN/16209(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, April 22, 2022
CA/ABJ/269/2022(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. ASSET MANAGEMENT CORPORATION OF NIGERIA 2. BUREAU OF PUBLIC ENTERPRISES 3. LAMIS SHEHU DIKKO 4. DR. HENRY UKO ATIONU 5. JOHN ABUH OYIDIH 6. ALEXANDER AYOOLA OKOH 7. AHMED DAHIRU MODIBBO 8. MR. MELA AUDU NUNGHE SAN 9. MR. OLUGBENGA FALEKULO 10. OLUSEGUN ILORI 11. MRS. YVONNE ISICHEI APPELANT(S)
And
1. NICON INVESTMENT LIMITED 2. NICON INSURANCE LIMITED 3. NIGERIAN REINSURANCE CORPORATION 4. BARRISTER JIMOH IBRAHIM 5. INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON RAISING FRESH EVIDENCE ON APPEAL
In other words, where there is fresh evidence, such fresh evidence can only come in through Further Affidavit or Further Counter Affidavit, though the Court must be circumspect of the fact that there must be an end to litigation. Order 4 Rule (2) of the Court of Appeal Rules, 2021 provides thus:
“The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner as the Court may direct but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds” PER SENCHI, J.C.A.
THE PRINICPLE THAT RULES OF COURT MUST ARE MEANT TO BE OBEYED
Now, I have observed that the application of the Appellants/Applicants is anchored on Order 6 Rule 1 of the Court of Appeal Rules, 2021. And Sub-rule (h) of Order 6 Rule 1 provides as follows:
“Each written address shall not exceed five (5) pages and the reply on point of law shall not exceed three (3) pages.”
The Written Address of the 1st -4th Respondents spanned from pages 7-17, that is to say, the Written Address of the 1st-4th Respondents contained 9-10 pages. This is clearly contrary to the extant Rules of this Court. In the case of SHINNING STAR (NIG) LTD & ANOR V A.K.S STEEL (NIG) LIMITED & ORS (2010) LPELR-4957, this Court as per Galinje JCA (as he then was) said:
“…The Rules of the Court are meant to be obeyed as same are not for fun. In YUSUFU V OBASANJO (2003) 15 NWLR (pt 843) 293 at 303 paragraph F-G, My lord Nsofor, JSC quoted with approval the decision of SOWEMIMO, JSC IN SOLANKE V SOMEFUN (1974) 1 SC 141 where his lordship said:- “Rules of Court are meant to be complied with and therefore any party or Counsel seeking the discretionary power of the Judge to be exercised in his favour must bring his case within the provisions of the rules on which he purported to make the application. If Counsel fail to discharge their duties in that respect, it is but fair and right that the Court should refuse to exercise its discretionary powers”
Thus, the law is that where the exercise of a right is circumscribed or limited to a rule of practice, except where it is satisfactorily shown that compliance with such rule has been waived, then that rule must be complied with.
Rules of practice are meant to be respected and obeyed. See EZEGBU V. FAIB LTD (1992) 1 NWLR (pt. 216) 197; CCB (NIG) PLC V. A.G ANAMBRA STATE (1992) 8 NWLR (pt. 216) 528; IROEGBU V. OKWORDU (1990) 6 NWLR (pt. 159) 643 and DINGYADI V. INEC & ORS (2010) LPELR-951 (SC). PER SENCHI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
See REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION OF NIGERIA V. JULIET EKPO TORT (2017) LPELR-43069 (CA); F.R.N V ABACHA (supra). In the case of BAMAIYI V STATE (supra), this Court held thus:
“The issue of jurisdiction is a fundamental and crucial one and where it forms the basis of an appeal upon which an application for stay of proceedings hinges, as in the instant case, there is an irresistible temptation to grant the order. This is because grounds of appeal, in such situation, are conceded to be raising substantial and arguable issues such that the effort to stay proceedings passes the first hurdle by virtue of the said ground” PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgement): Dissatisfied with the ruling of the Federal High Court, Abuja Division in Suit No. FHC/ABJ/CS/760/2021, Coram O. E. Abang J. delivered on the 9th day of March, 2022, the Appellants/Applicants herein, by a Motion on Notice dated 17th March, 2022 and filed on 18th March, 2022, are seeking the following Reliefs:
(1) An Order of this Honourable Court staying the proceedings of the Federal High Court, Abuja Division in Suit No. FHC/ABJ/CS/760/2021, pending the hearing and determination of this appeal filed against the ruling delivered on the 9th day of March, 2022.
(2) An Order of this Honourable Court staying the Contempt Proceedings ordered by Hon. Justice O. E. Abang of the Abuja Division of Federal High Court Nigeria against the Appellants/Applicants on the 9th day of March, 2022 in Suit No. FHC/ABJ/CS/760/2021, pending the determination of this appeal.
(3) And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.
The Grounds upon which their Application is brought are as follows:
(1) An appeal has been lodged in this Court against the ruling of Honourable Justice O. E. Abang delivered on the 9th of March, 2022 in Suit No. FHC/ABJ/CS/760/2021.
(2) The Record of Appeal has been compiled and transmitted to this Honourable Court on the 16th day of March, 2022.
(3) Appellants/Applicants’ appeal raises substantial and arguable points of law that further proceedings before the Federal High Court ought to be stayed until the issues are determined before this Court.
(4) Substantial and genuine issues of jurisdiction, bias and competence of the lower Court have been raised in this appeal necessitating stay of further proceedings before the Federal High Court.
(5) The matters raised in this appeal are so fundamental that this is a proper case in which the proceedings ought not to go until the issues are sorted out on appeal.
(6) The Court has a duty in law to stay further proceedings in the substantive suit as well as the Contempt Proceedings before the Federal High Court, having regards to the issues raised in this appeal and in the circumstances.
(7) The application is brought in good faith.
The Motion on Notice was brought pursuant to Order 6 ( 1) of the Court of Appeal Rules 2021, Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and under the inherent jurisdiction of this Court.
The Appellants/Applicants also filed a four (4) paragraph affidavit deposed to by one Ebenezer Ismaila, a Legal Assistant in the Law Firm of the Appellants/Applicants’ Counsel, A U. Mustapha SAN & Co. In support of their Motion on Notice is a Written Address as provided by Order 6 (1) (a) of the Court of Appeal Rules, 2021.
On service of the Appellants/Applicants’ Motion on Notice on the 1st-4th Respondents, the 1st-4th Respondents on 25th March, 2022 filed a Counter Affidavit of 27 paragraphs with documents attached as exhibits. The Counter Affidavit was sworn to by one Rachel Kehinde-Famojuro, a Legal Adviser and Company Secretary of the 3rd Respondent. The 1st-4th Respondent also filed a Written Address.
In response to the Counter Affidavit of the 1st-4th Respondents filed on 25th March, 2022, the Appellants/Applicants filed a Further Affidavit on 28th March, 2022 and a Further Affidavit on 29th March, 2022 in order to exhibit documents inadvertently omitted to be attached to the Further Affidavit filed on 28th March, 2022. The Appellants/Applicants also filed a Reply on Points of Law on 28th March, 2022.
In the Written Address of the Appellants/Applicants, the learned Senior Counsel A. U. Mustapha SAN formulated the following sole issue for determination:
“Whether in view of the circumstances of this case and the far-reaching effect/outcome of the trial Court’s ruling, whether the proceedings in respect of this case ought not to be stayed pending the determination of the appeal already lodged before this Honourable Court.”
The 1st-4th Respondent in their Written Address also formulated one Issue for determination thus:
“Whether the Appellants/Applicants have made out a case to be entitled to the grant of the reliefs sought”
ARGUMENTS OF COUNSEL
APPELLANTS/ APPLICANTS’ SUBMISSIONS
At paragraphs 7-17 of the Applicants’ Written Address, the learned Senior Counsel to the Applicants contends to the effect that where an Applicant’s Notice of Appeal raises issues of jurisdiction and bias, the Court is faced with irresistible urge to grant the application for stay.
He contends further that in the instant case, the Applicant’s Notice of Appeal filed on 14th March, 2022 raises grave, substantial, arguable and fundamental issues of jurisdiction crucial to the life of this case, hence, this Court is saddled with the legal obligation to grant the Applicants’ Application. Learned Senior Counsel relies on the cases of F.R.N. V. ABACHA (2008) 5 NWLR (PT. 1081) 634 at PP. 650-652, PARAS G-C; BAMAIYI V. STATE (2003) 17 NWLR (PT. 848) PAGES 61-62, PARAS H-A; KOSOKO & ANOR V. TIAMIYU (2019) LPELR-47320 (CA). The learned Senior Counsel submits that based on the foregoing judicial authorities and the fact that the Appellants/Applicants’ Grounds of Appeal raise arguable issues of law, it will be very justifiable for this Court to exercise its discretionary powers in favour of the Applicants by granting this Application. He prayed this Court to grant the application as prayed.
1ST – 4TH RESPONDENTS’ SUBMISSIONS
At paragraphs 4.1-4.7 of the 1st-4th Respondents’ Written Address, learned Counsel to the 1st-4th Respondent submits to the effect that the instant application is incompetent, as it offends the provisions of Order 6 Rule 4 of the Rules of this Court, having been brought at first instance to this Court without the Applicants showing any special circumstances of impossibility or impracticability of first making the application at the lower Court. He relies on the case of HOUSE OF ASSEMBLY RIVERS STATE & ANOR V. BAR TAMUNOTEIM ASOBARI & ORS (2013) LPELR-22845 (CA). At paragraphs 4.8-4.25 of his Written Address, learned Counsel submits to the effect that the Applicants have not placed sufficient materials before this Court to warrant the exercise of the discretion of this Court in favour of their application, as an application for stay of proceedings is not just granted for the asking but on grounds of special and exceptional circumstances, and the Applicants have not shown such special and exceptional circumstances. He relies on the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V. ALHAJI ATIKU ABUBAKAR (2006) LPELR-6035 (CA) PP 8-11 paragraph C. Counsel submits further that the issue of jurisdiction having not yet been determined by the lower Court one way or the other, it cannot be a ground of appeal before this Court or even a special circumstance to warrant the exercise of the jurisdiction of this Court in favour of the Applicants. He contends that the Applicants lack any form of justification whatsoever to hold the Court in contempt and they should respond to the proceedings brought against them at the lower Court rather than hide under the process of this Court in an attempt to frustrate the 1st-4th Respondents from seeking redress against the Applicants’ consistent and willful disobedience and flouting of the Undertakings made to Court and the Orders of the Court, while they continue same. He relies on the case of TIMIPRE SYLVA V. FEDERAL REPUBLIC OF NIGERIA (2014) LPELR-23964 (CA).
Learned Counsel to the 1st-4th Respondents submits that contempt is a grave and serious conduct that defies the authority or dignity of the Court and such conducts interfere with the administration of justice, hence, a contemnor is not entitled to be heard, until he purges himself of the said contempt. He relies on the case of ATTORNEY GENERAL OF THE FEDERATION V. BI-COURTNEY LIMITED (2014) LPELR-22968 (CA). He submits further that the Applicants are still in disobedience of the matters for which they seek relief from this Court and they are yet to state their side of the story with regards to the contempt allegations made against them at the lower Court, thus this Court should not allow the Applicants to use its process to escape inquiry into their conducts of contempt against subsisting Orders of Court and Undertakings made to the Court. In conclusion, Counsel submits that the instant application lacks merit and this Court should dismiss same.
APPELLANTS/APPLICANTS’ REPLY ON POINTS OF LAW
Learned Senior Counsel to the Appellants submits at paragraphs 2.3-2.15 of the Applicants’ Reply on points of law that it is trite law that where an appeal has been entered before an appellate Court by compiling and transmitting record to the Appellate Court, all applications shall be made before the appellate Court as the lower Court is divested of the requisite jurisdiction to entertain any application in respect of the matter. He relies on the cases of STARS MINISTRIES INC. (ALIAS KINGDOM STARS ASSEMBLY) V. INNOCENT AGU (2019) LPELR-49152 (CA) and MR. OWEIFA DOKUBO & ORS V. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR. (2013) LPELR-21951 (CA). He submits further that the Applicants filed the instant application after the appeal had been entered by this Court, thus, contrary to the arguments of the Respondents on this issue, the instant application is competent and ought to be granted.
On the 1st-4th Respondents’ argument that the Applicants did not place sufficient material before this Court to warrant this Court’s exercise of discretion in their favour, learned Senior Counsel to the Appellants submits to the effect that the cases of PEOPLES DEMOCRATIC PARTY & ORS V. ALHAJI ATIKU ABUBAKAR AND ORS (Supra) and TIMIPRIYE SYLVA V. FEDERAL REPUBLIC OF NIGERIA (Supra) do not share similar facts with the instant case and have nothing to do with contempt proceedings as in the instant case. He submits further that the Grounds of Appeal in the instant case are wholly those of law which entitle the Appellants/Applicants to appeal as of right; and the committal proceedings being appealed against touch on the liberty of the Applicants for which Section 241(1) of the 1999 Constitution empowers this Court to take appeals as of right from the Court below. The learned Senior Counsel contends that it is clear from the provisions of Section 241(1) of the 1999 Constitution that where the grounds of appeal involve questions of law alone, the Appellant can appeal the decision in any civil or criminal proceedings as of right and there will be no need to seek leave of Court to so do. He contends further that by juxtaposing the definitions of grounds of law as stated in the cases of ANOGHALU V. ORAELOSI (1999)13 NWLR (PT. 634) PG 297 AT 308 PARA E and METAL CONSTRUCTION (WEST AFRICA) LTD V. D.A. MIGLIORE & ORS (1990) 1 NWLR (PT. 126) PG 299 at 315 paragraph B and the Appellants/Applicants’ grounds of appeal, it is clear that the grounds of appeal are on issues of law; however, assuming without conceding that there are certain grounds of law as well as other grounds of mixed law and facts, it is not enough to strike down the whole of the Appellant’s Grounds of Appeal, and this Court is at liberty to consider other grounds of law and rely on same. He relies on the case of AROWOLO V. ADIMULA (1991) 8 NWLR (PT. 212) PG 753 at 763-764 PARAS H-B. In conclusion, he urged this Court to discountenance the arguments of the Respondents and grant this application as prayed.
RESOLUTION OF ISSUES
On 30th March, 2022, this Motion on Notice came up for hearing. The 1st-4th Respondents had filed a Notice of Preliminary Objection brought pursuant to Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Order 6 Rule 4 of the Court of Appeal Rules, 2021 and under the inherent jurisdiction of this Honourable Court. However, the learned Counsel to the 1st-4th Respondents applied orally to withdraw the said notice of preliminary objection dated and filed on 28th March, 2022. Thus, the Notice of Preliminary Objection dated and filed on the 28th March, 2022 was withdrawn and struck out.
Subsequently, Counsel to the respective Parties identified their processes in this application.
After identifying their processes, the Counsel to the respective Parties adopted same and urged the Court to either grant the application or refuse same.
The 5th Respondent did not file any process in this matter. However, at the hearing of the instant application, Counsel to the 1st-4th Respondents raised orally a seeming objection to the Further Affidavit to the Further Affidavit of the Appellants/Applicants, submitting that it is unknown to law and hence the Further Affidavit to the Further Affidavit be discountenanced.
It appears the learned Counsel to the 1st – 4th Respondents has not averted his mind to the fact that matters commenced by Originating Summons or Motion are generally fought on the basis of Affidavit evidence which is akin to pleadings. In other words, where there is fresh evidence, such fresh evidence can only come in through Further Affidavit or Further Counter Affidavit, though the Court must be circumspect of the fact that there must be an end to litigation. Order 4 Rule (2) of the Court of Appeal Rules, 2021 provides thus:
“The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner as the Court may direct but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds”
As can be seen, a further evidence can be permitted by the Court if the facts set out by the Applicant constitute special grounds. In the instant application, by the depositions at paragraphs 5 and 6 of the Further Affidavit, the Applicants just wanted to attach the Proof of Service and ruling delivered on 24th March, 2022, which documents were copiously referred to in the Further Affidavit filed on 28th March, 2022 but inadvertently omitted to be attached as exhibits. I have also seen the two exhibits i.e. endorsement at the back of the motion papers served on the 1st-4th Respondents being the Proof of Service of the instant Motion on Notice and the ruling of the trial Court on 24th March, 2022.
Thus, where new or fresh facts or evidence emerge, a Further Affidavit is allowed in law. See ABEH V. IGP & ORS (2021) LPELR-54856 (CA) ZENITH BANK PLC V BANKOLANS INVESTMENTS LTD (2011) LPELR CA/L/946/09, where this Court as per Mshelia JCA said:
“I am of the humble view that where new facts are introduced in a further affidavit, the opposing party is entitled to file a further counter affidavit especially when hearing is yet to commence. In other words, a further affidavit cannot therefore be said to be the last permissible process as erroneously held by the learned trial Judge. It is true that the rules did not expressly provide for the filing of further counter affidavit. However, the same rules did not also state that further counter-affidavit cannot be filed in any circumstance, while I agree with Respondents Counsel that Courts should not encourage filing of processes endlessly, I am however, of the humble view that every case has to be considered according to its given set of facts and circumstances. See U. T.C (NIG) LTD V. PAMOTEL (1989) 2 NWLR (Pt. 103) page 244; ADAMU V. AWKALIA, (2005) 11 NWLR (Pt. 936) page 263.
Thus, in view of the peculiar circumstances of this matter, a Further Affidavit is required to bring in the two documents and hence the oral argument of the learned Counsel to the 1st-4th Respondents is hereby discountenanced.
Having said the above, in the Written Address of both Counsel to the respective Parties, each formulated a sole issue for the determination of the present application. However, it appears the issue for determination as distilled by the Appellants/Applicants senior Counsel is apt and I therefore adopt same as mine to determine the instant application and thereunder, I will consider the 1st-4th Respondents issue as well. Therefore, the issue for determination is thus:
“Whether in view of the circumstances of this case and the far-reaching effect/outcome of the trial Court’s ruling, whether the proceedings in respect of this case ought not to be stayed pending the determination of the appeal already lodged before this Honourable Court”
Now the facts leading to the instant Motion on Notice is that the Respondents herein filed an Originating Summons before the Federal High Court, Abuja Division on 30th July, 2022 and the matter was subsequently assigned to Abang, J., now of Warri Division of the Federal High Court. Then by the proceedings and ruling of the trial Court on 9th March, 2022, it held that it would interrogate the Appellants/Applicants and order that committal proceedings be commenced against the Appellants/Applicants by ordering the Respondents to commence a committal proceedings against the Appellants/Applicants without any application by the Respondents (see paragraphs 3 (A)-(R) of the Affidavit in Support of Motion on Notice of the Appellants/Applicants, as well as the ruling of the trial Court, Exhibit AMCON 1, attached to the Supporting Affidavit). The Appellants/Applicants further alleged in their Supporting Affidavit that they filed a Notice of Preliminary Objection against the trial Court’s jurisdiction to entertain the suit of the 1st-4th Respondents on multiple grounds but the trial Court refused, failed or neglected to hear the Preliminary Objection but proceeded to make far-reaching Orders in the suit.
It is consequent upon the stated facts in the Affidavit that the Appellants/Applicants approached this Court for an Order staying proceeding of the trial Court in suit no. FHC/ABJ/CS/760/2021 pending the hearing and determination of the appeal filed against the ruling of the trial Court delivered on 9th March, 2022 (Exhibit AMCON 1) and an order of this Court staying the contempt proceedings ordered by the trial Judge, O. E. Abang, J. on the 9th March, 2022 in the same ruling (Exhibit AMCON 1).
The 1st-4th Respondents in their Counter Affidavit denied some of the averments in the Appellants/Applicants’ Affidavit supporting their Motion on Notice, especially paragraphs 3 (d), (f), (g)-(t) and then stated at paragraphs 4-14 of their Counter Affidavit to the effect that on 22nd February, 2021, the trial Court set aside its Order of 4th January, 2021 as per Exhibit A2, which decision is now a subject of appeal before this Court. The 1st-4th Respondents state that despite the subsisting order of the trial Court made on 22nd February, 2021 setting aside the Receiver/Manager appointment by the 1st Appellant, the said Receiver/Manager with the consent and authority of the 1st Appellant has continued to act as Receiver/Manager in spite of, and in contempt of the subsisting orders of the trial Court.
The 1st-4th Respondents deposed further that while Appeal No. CA/ABJ/CV/377/2021 challenges the decision of the trial Court made on 22nd February, 2021 as per Exhibit A2, setting aside the Receiver/Manager appointment, the 1st and 2nd Appellants herein appointed the 3rd-11th Appellants herein into the Board and Management of the 2nd and 3rd Respondents.
The 1st-4th Respondents aver to the effect that on 16th August, 2021, Counsel to the 1st-11th Appellants gave undertaking on behalf of the 1st-11th Appellants as well as Counsel to the 5th Respondent that they will not do anything to undermine the subject matter of litigation relating to suit No. FHC/ABJ/CS/760/2021.
At paragraphs 16-22 of the Counter Affidavit of the 1st-4th Respondents, they deposed to the effect that they then sought from the trial Court and the trial Court granted them leave to commence Contempt Proceedings against the Appellants and principal officers of the 1st Appellant. The Appellants filed a Further Affidavit and at paragraphs 5, they denied certain averments in the Counter Affidavit of the 1st-4th Respondents.
The Appellants further filed a Further Affidavit to bring in Exhibits AMCON 3 and AMCON 4 respectively referred to at paragraphs 16 (c) and (f) of their Further Affidavit deposed to on 28/03/2022.
In a nutshell, the above are the facts or Affidavit evidence of the respective parties in this application. Thus, it is the submission of the Senior Counsel to the Appellants at paragraphs 7-12 of pages 2 and 3 of his Written Address that the Appellants/Applicants Notice of Appeal filed on 14th March, 2022, Exhibit AMCON 2, have raised fundamental Grounds of Appeal challenging the jurisdiction of the trial Court and that the Appellants/Applicants have satisfied the conditions for the grant of an Order of Stay of Proceedings pending appeal.
On the other hand, learned Counsel to the 1st-4th Respondents at paragraphs 4.2-4.11 of pages 8-12 of their Written Address submitted to the effect that the Appellants/Applicants failed to comply with Order 6 Rule 4 of the Court of Appeal Rules 2021 in that the application ought to have been made at the first instance to the lower Court, being an interlocutory decision. He further stated that special and exceptional circumstances have not been shown by the Appellants/Applicants to warrant the grant of the instant application.
Now, I have observed that the application of the Appellants/Applicants is anchored on Order 6 Rule 1 of the Court of Appeal Rules, 2021. And Sub-rule (h) of Order 6 Rule 1 provides as follows:
“Each written address shall not exceed five (5) pages and the reply on point of law shall not exceed three (3) pages.”
The Written Address of the 1st -4th Respondents spanned from pages 7-17, that is to say, the Written Address of the 1st-4th Respondents contained 9-10 pages. This is clearly contrary to the extant Rules of this Court. In the case of SHINNING STAR (NIG) LTD & ANOR V A.K.S STEEL (NIG) LIMITED & ORS (2010) LPELR-4957, this Court as per Galinje JCA (as he then was) said:
“…The Rules of the Court are meant to be obeyed as same are not for fun. In YUSUFU V OBASANJO (2003) 15 NWLR (pt 843) 293 at 303 paragraph F-G, My lord Nsofor, JSC quoted with approval the decision of SOWEMIMO, JSC IN SOLANKE V SOMEFUN (1974) 1 SC 141 where his lordship said:- “Rules of Court are meant to be complied with and therefore any party or Counsel seeking the discretionary power of the Judge to be exercised in his favour must bring his case within the provisions of the rules on which he purported to make the application. If Counsel fail to discharge their duties in that respect, it is but fair and right that the Court should refuse to exercise its discretionary powers”
Thus, the law is that where the exercise of a right is circumscribed or limited to a rule of practice, except where it is satisfactorily shown that compliance with such rule has been waived, then that rule must be complied with.
Rules of practice are meant to be respected and obeyed. See EZEGBU V. FAIB LTD (1992) 1 NWLR (pt. 216) 197; CCB (NIG) PLC V. A.G ANAMBRA STATE (1992) 8 NWLR (pt. 216) 528; IROEGBU V. OKWORDU (1990) 6 NWLR (pt. 159) 643 and DINGYADI V. INEC & ORS (2010) LPELR-951 (SC).
In the instant case, the 1st-4th Respondents have failed to comply with the mandatory provision of filing Written Address not exceeding five (5) pages. I will however not discountenance the Written Address of the 1st-4th Respondents in the interest of justice and fair hearing; and more importantly, the Appellants’ Senior Counsel did not raise any objection on same or see anything bad to that effect. In other words, even if the Court raised the issue suo motu, I will not have the jurisdiction to resolve same as the parties did not address me on it.
I will proceed to consider whether the Appellants/Applicants are entitled to the prayers sought in this application.
The 1st-4th Respondents’ Counsel has strenuously argued in his Written Address that the instant application is incompetent for failure of the Appellants/Applicants to mandatorily comply with Order 6 Rule 4 of the Court of Appeal Rules, 2021 which provides as follows:
“Wherever under these Rules, an application may be made either to the lower Court or to the Court, it shall not be made in the first instances to the Court, except where there are special circumstances which make it impossible or impracticable to apply to the lower Court”
Now, it was rightly submitted by the Counsel to the 1st-4th Respondents relying on the case of HOUSE OF ASSEMBLY, RIVER STATE & ANOR V BARR. TAMUNOTEIM ASOBARI & ORS (Supra), where this Court held per Yahaya JCA as follows:
“An application for stay of proceedings pending appeal is an application that can be brought in the Court below or in this Court. But by Order 7 Rule 4 of the Court of Appeal Rules 2011, the application shall be made to the Court below in the first instance. The application can only be made to this Court in the first instance where the Applicant shows exceptional circumstances which made it impossible or impracticable to make it in the Court below in the first instance”
In other words, the Applicant must make the application for an order of stay of proceedings to the Court below in the first instance before approaching this Court.
The second leg of the provision is that the Applicant as in the instant application can make the application to this Court if special and exceptional circumstances are shown.
The instant application is made to this Court by the Appellants/Applicants. Thus, the Appellants/Applicants must show special and exceptional circumstances to warrant this Court to exercise its discretion in granting the application in their favour. It is trite that special and exceptional circumstances, in the eyes of the law, in my understanding contemplates pendency of a substantive Notice of Appeal which must be valid. See AYENI V. ELEDO (2005) 12 NWLR (pt. 939) 368.
The Grounds of Appeal shall raise issues relating to fair hearing or lack of it and issue of jurisdiction of the trial Court by that application or process for an order staying proceedings of the Court below. Also, the pending application must be arguable and this can be borne from the Grounds of Appeal.
See REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION OF NIGERIA V. JULIET EKPO TORT (2017) LPELR-43069 (CA); F.R.N V ABACHA (supra). In the case of BAMAIYI V STATE (supra), this Court held thus:
“The issue of jurisdiction is a fundamental and crucial one and where it forms the basis of an appeal upon which an application for stay of proceedings hinges, as in the instant case, there is an irresistible temptation to grant the order. This is because grounds of appeal, in such situation, are conceded to be raising substantial and arguable issues such that the effort to stay proceedings passes the first hurdle by virtue of the said ground”
As submitted by the learned Counsel to the 1st-4th Respondents, an application of this nature can be brought before this Honourable Court if the Grounds of Appeal filed are arguable and the issue of jurisdiction is genuinely raised and if upheld, would be the end of the suit. That in itself constitutes special and exceptional circumstances envisaged under Order 6 Rule 4 of the Rules of this Honourable Court. See the case of PDP & ORS V. ALHAJI ATIKU ABUBAKAR, (supra) cited by learned Counsel to the 1st-4th Respondents.
Further, the application for stay of proceedings is not made in a vacuum but a valid Notice of Appeal must have been filed and entered, thereby evoking special and exceptional circumstances. With regards to the instant case, Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2021 provides that:
“(10) An appeal is entered in the Court when the record has been received in the Registry of the Court within the time prescribed by the Rules or within such other extended time as ordered by the Court.
(11) After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto; except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the lower Court”
See the decision of this Court in the case of STARS MINISTRIES INC (ALIAS KINGDOM STARS ASSEMBLY) V. INNOCENT AGU (2019) LPELR-49152.
Now, in the instant application, did the Appellants/Applicants disclose or present facts or evidence that they have met the conditions that will constitute special and exceptional circumstances to warrant this Court to exercise its discretionary powers to grant the Orders/Prayers sought in this application?
In support of their prayers, the Appellants/Applicants at paragraphs 3(c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) (r) and (s) of their Affidavit in support of their notice of Preliminary Objection averred facts and raised serious issues pertaining to the jurisdiction of the lower Court to entertain the suit, which the lower Court refused or neglected to hear but proceeded to interrogate the Appellants/Applicants and ordered the Respondents to commence committal proceedings against the Appellants/Applicants. I have also seen Exhibits AMCON 3 and AMCON 4, the Motion on Notice to stay proceedings served on the 1st-4th Respondents and the ruling of the lower Court dated 9th day of March, 2022.
On the other hand, I have seen the averments of the 1st-4th Respondents at paragraphs 16-26 of their Counter Affidavit in opposition to the grant of the instant application. Basically and essentially, the facts contained in the Counter Affidavit of the 1st-4th Respondents are only over flogging the issues of contempt proceedings and that leave of the lower Court was not sought and obtained before filing the appeal and the instant application. In other words, the 1st-4th Respondents deliberately avoided joining issues on paragraph 3 (f), (g), (h), (i), (j) and (k) of the Affidavit in Support of the Motion that borders on jurisdiction of the lower Court. However, the lower Court brazenly, arrogantly and with disdain ignored the Notice of Preliminary Objection challenging its jurisdiction and ordered committal proceedings to be commenced by the Respondents against the Appellants/Applicants. No matter how useless the challenge on the lower Court’s jurisdiction is, the lower Court ought to have determined same one way or the other before proceeding to hear the suit. There are plethora of judicial authorities of this Court and the Apex Court on this position.
Further, the law is that where an appeal has been filed and entered as provided by Order 4 Rules 10 and 11 Court of Appeal Rules, 2021 contempt proceedings must be stayed as this involves deprivation of the liberty of an individual(s). See the decision of this Court in KOSOKO & ANOR V. TIAMIYU (2019) LPELR-47320.
Thus, by the Grounds of Appeal contained in Exhibit AMCON 2, the Appellants/Applicants have raised arguable issues therein to constitute special and exceptional circumstances in this instant application. Secondly, contrary to the erroneous deposition of the 1st-4th Respondents in their Counter Affidavit and arguments canvassed, by the combined provisions of Sections 240 and 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), appeal is of right to the Appellants/Applicants as it borders on grounds or questions of law, and in such situation, leave of the lower Court is immaterial. It is on record as averred in the affidavit of the Appellants/Applicants that the Record of Appeal has been compiled and transmitted to this Court on 16th March, 2022 while the instant application was filed on 18th March, 2022.
Thus, I hold the humbly view that by the affidavit evidence of the Appellants/Applicants in support of their Motion on Notice, the Appellants/Applicants have deposed to material and persuasive facts in support of their application to warrant this Court to exercise its discretionary powers in favour of the Appellants/Applicants, and I so hold.
The Appellants/Applicants have shown by their affidavits and exhibits thereto, special and exceptional circumstances in this application. Hence, the sole issue for determination distilled by the Appellants/Applicants is hereby resolved in favour of the Appellants/Applicants and against the Respondents.
Accordingly, the application dated 17th March, 2022 and filed on 18th March, 2022 is hereby granted and the following orders are hereby made:
(a) An Order staying the proceedings of the lower Court, Abuja Division in suit No. FHC/ABJ/CS/760/2021 pending the hearing and determination of this appeal filed against the Ruling of the lower Court delivered on 9th day of March, 2022.
(b) An Order staying the Contempt Proceedings ordered by the lower Court against the Appellants/Applicants on 9th day of March, 2022 in suit No. FHC/ABJ/CS/760/2021 pending the hearing and determination of this appeal.
No award as to cost.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the draft of the ruling delivered by my learned brother, Danlami Zama Senchi, JCA.
My learned brother has succinctly but exhaustively considered the law in respect of an application for stay of proceedings. It is the settled law that, an Applicant in an application for stay of proceedings, must show special and/or exceptional circumstances why the proceedings in the lower Court should be stayed. Of paramount importance is the consideration of the balance of convenience; so as not to present a situation where a fait accompli will be foisted on the Court of Appeal, so that even if the Appellant succeeds on appeal, there will be no chance of returning to the status quo. See Eze v. Okolonji (1997) 7 NWLR (Pt. 513) 515 and Nika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509.
In the instant case, the application for stay of proceedings seeks to put in abeyance or suspend the proceedings of the trial Court pending the determination of an appeal filed against the Interlocutory Ruling of the trial Court delivered on the 09/03/2022. It also seeks stay of the proceedings against the contempt proceedings ordered to be initiated by the trial Court. The Grounds for seeking those reliefs have been carefully stated in both the grounds for seeking the reliefs and the facts as deposed in the Affidavit in Support. I am satisfied that those facts are special as to illicit the grant of the application for stay of proceedings.
It is for the above reasons and the other reasons comprehensively discussed in the lead ruling, that I agreed that the application has merit. It is hereby granted. I also abide by the consequential orders made therein.
HAMMA AKAWU BARKA, J.C.A.: I have had the singular advantage of reading in draft, the ruling just delivered by my learned brother Senchi JCA. I agree with his lordship that the application for order of the Court staying proceedings before the lower Court, pending the determination of the instant appeal, and also staying the contempt proceedings ordered by the lower Court pending the determination of this appeal be granted. Permit me however to add a few words of mine.
It is trite law, that once the jurisdiction of the Court is challenged, a wedge or big huddle is thrown on the path of the Court proceeding with entertaining the matter before it, which wedge can only be removed, when the issue of the jurisdiction of the Court is determined one way or the other; the simple reasoning being that a Court proceeding without jurisdiction labours in vain and as asserted in Bamayi Vs The State, cited in the lead ruling, the issue of jurisdiction is fundamental and crucial, and where an application for stay is predicted on the basis of a challenge to the jurisdiction of the Court, the proceedings must be stayed pending the resolution of the question, whether the Court has jurisdiction to try the matter before it or not.
Having said so, I endorse the lead ruling as mine and equally grant the prayers prayed for. I make no order on costs.
Appearances:
A. U. Mustapha, SAN, with him, S. S. Umoru, Esq., Ossy Ehikioya, Esq. and Lukman, Esq. For Appellant(s)
Victor Ogbonna, Esq. – for 1st – 4th Respondents For Respondent(s)
