BAMS INVESTMENT LTD v. KOLO & ANOR
(2021)LCN/14969(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Monday, January 18, 2021
CA/G/203/2019(R)
RATIO
JURISDICTION: EFFECT OF RAISING THE ISSUE OF JURISDICTION ON APPEAL
Thus, the law is trite and settled that where the issue of jurisdiction is raised on appeal, it serves as a good ground to stay further proceedings of the Court below. See Olunloyo vs. Adedayo Adeniran (2001) 14 NWLR (Pt. 734) 699. PER JUMMAI HANNATU SANKEY, J.C.A.
Before Our Lordships:
Between
BAMS INVESTMENT LIMITED APPELANT(S)
And
1. ALHAJI BUKAR KOLO 2. FIRST BANK OF NIGERIA LIMITED RESPONDENT(S)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment):
Mr. Usman – The motion on notice dated and filed on 02-11-20 seeks an order of Court staying its proceedings in this Appeal No. CA/G/203/2019 pending the hearing and determination of Appeal No. SC/908/2019 now before the Supreme Court.
The Grounds for the application are set out in the motion paper.
The motion is supported by a 6 paragraph affidavit and 3 exhibits marked Annexures 1, 2, 3 & 4 being the Ruling of this Court, the Notice and Grounds of Appeal before the Supreme Court, the cover page of the Record of Appeal before the Supreme Court and the Appellant’s Brief before the Supreme Court respectively. We rely on the affidavit and the exhibits annexured thereto. We urge the Court to grant the application as prayed.
The Appellant/Respondent filed a counter affidavit of 14 paragraphs. I rely on Section 318 of the Constitution, 1999 (as amended) for the meaning of a decision of the Court as a Judgment or Ruling. We also submit that, in Ground one of the Notice of Appeal, the Applicant raised an issue of jurisdiction. Therefore, this serves as a special circumstance.
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Finally, if this Appeal is determined before the hearing of the Appeal at the Supreme Court, the res would be destroyed. The res at the apex Court is the actual pending Appeal before this Court as we are challenging the leave granted the Appellant to appeal.
We urge the Court to grant the application as prayed.
Mr. Tsok – The Respondent filed a 14 paragraph counter affidavit on 08-01-21, and we rely on same to urge the Court to dismiss the application (This is on the ground)
We submit that such an application is not granted for the asking, but upon special and exceptional circumstances considering the competing rights of the parties, justice and equity. From the Notice of Appeal and Appellant’s Brief before the Supreme Court, jurisdiction was only nominally mentioned. Jurisdiction is therefore not actually in contest. Also, we submit that the Appeal before the Supreme Court does not stand a chance of success having regard to the decision in Dingyadi and INEC No. 1 (2010) 18 NWLR (Pt. 1224) 151 C – E.
I urge the Court to dismiss the application for lacking in merit.
Mr. Idris – We leave it to the Court’s discretion.
Mr. Usman – No reply on point of law.
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This application, which is contentious, seeks in the main, the stay of further proceedings in this Appeal. The Applicant has given three grounds for the application which are that:
(a) The decision of this Court which is appealed against was delivered on 27th March, 2019;
(b) The appeal against that decision was filed at the Supreme Court on 5th April, 2019; and
(c) The appeal is still pending before the Supreme Court.
In support of the application is a six paragraph affidavit and four exhibits being:
(i) The Ruling of this Court and grounds
(ii) The Notice and Grounds of Appeal,
(iii) The first page of the Record of Appeal and
(iv) The Appellant’s Brief, all processes filed at the Supreme Court.
The learned counsel for the Applicant has drawn the Court’s attention to Exhibits 2 & 4, being the Notice of Appeal and the Appellant’s Brief, where the issue of jurisdiction was raised.
In opposing the motion, the Respondent/Appellant filed a 14 paragraph counter affidavit upon which he relies.
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The crux of his opposition to the grant of the application is that the issue of jurisdiction in the processes referred to were only raised nominally and so jurisdiction is not actually in issue.
Furthermore, Counsel submits that the Applicant has not shown any special or exceptional circumstance to warrant the granting of the application. It should therefore be refused.
I have very carefully perused both the affidavit in support and the counter affidavit before the Court, as well as the exhibits annexed thereto.
I have also considered the position of the law on the grant of such applications and the authority cited.
It is very apparent to me that the Applicant in ground one of the Notice of Appeal raised the issue of the jurisdiction of this Court to entertain this Appeal. This issue of jurisdiction was extensively argued under issue one and issue two of the Appellant’s Brief.
Thus, the law is trite and settled that where the issue of jurisdiction is raised on appeal, it serves as a good ground to stay further proceedings of the Court below. See Olunloyo vs. Adedayo Adeniran (2001) 14 NWLR (Pt. 734) 699. In the instant appeal, the main question before the Supreme
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Court in the Appeal pending before it is, whether this Court was right when it granted the Respondent/Appellant leave to appeal, and therefore whether the Appellant is a proper/competent party in the Appeal now before this Court.
In the authority of Madukolu vs. Nkemdilim (1962) All NLR, this is one of the preconditions to be met for the exercise of the jurisdiction of a Court. Consequently, it is the leave granted to the Respondent/Appellant to file the Appeal before this Court that is the crux of the Appeal pending at the Supreme Court. Consequently, this is what constitutes the res i.e the pending Appeal before this Court. It is apparent therefore, that, should this Court proceed with this Appeal when the competence of the Appellant to appeal is being contested before the apex Court, the outcome of the Appeal will be rendered nugatory. Therefore, it is for this reasons that I find merit in the application, as nothing will be lost in waiting for the Supreme Court to pronounce upon the correctness or otherwise of the Ruling of this Court in the Appeal now pending before it.
Consequently, the application is granted as prayed in terms of relief one on the motion paper.
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TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
EBIOWEI TOBI, J.C.A.: I agree.
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Appearances:
Parties Absent.
S. Y. TSOK, ESQ. For Appellant(s)
B. USMAN, ESQ., with him, MAHMUD USMAN, ESQ. – for 1st Respondent/Applicant.
AUWAL IDRIS, ESQ. holds the brief of Y. G. BELLO, ESQ. – for 2nd Respondent For Respondent(s)
