- CHRIS NWABUEZE NGIGE & ANOR. v. RON. NELSON ACHUKWU & ORS.
(2004)LCN/1537(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of February, 2004
CA/E/1/2004 (R)
RATIO
COURT AND PROCEDURE: STAY OF PROCEEDINGS
“In a stay of proceedings application pending an appeal, the significant central consideration is the preservation of the res. In the Supreme Court authority of Kigo (Nigeria) Ltd. v. Holman Bro (Nig.) Ltd. & Anor. (1980) 5-7 SC 60, reported in N.S.C.C. Vol. 12 1979-1981 at page 209, their Lordship had this to say among others:
” …The court from which an appeal lies as swell as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal, if successful is not nugatory.”
In other words, all courts whether trial or appellate possess power of preservation of the subject matter in their custody. The said principle of law as stated was followed from that restated in the authority of Andler v. Duke (1932) 3 D.L.R. 210. Furthermore, and in The Zamora (1916) 2 AC 77, it was also firmly established that preservation of the res is not predicated on whether it is tangible or not.” PER CLARA BATA OGUNBIYI J.C.A.
JURISDICTION: THE CONCEPT OF JURISDICTION
“The concept of jurisdiction is in no doubt priced very highly by the courts. Consequently therefore, any arrogation of such, which is not accorded by the law renders its proceedings, however, ably and tenaciously conducted, a nullity. The authority in the decision of Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411, is relevant and in point, where one of the factors considered in the granting of a stay was predicated on the issue of jurisdiction.” PER CLARA BATA OGUNBIYI J.C.A.
JUSTICES
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MONICA BOLAAN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
Between
1. DR. CHRIS NWABUEZE NGIGE
2. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ANAMBRA STATE Appellant(s)
AND
1. RON. NELSON ACHUKWU
2. INSPECTOR GENERAL OF POLICE
3. MR. UDUAKOMIRI Respondent(s)
JOHN AFOLABI FABIYI, J.C.A. (Delivering the Lead Ruling):
On 29-1-2004, this court handed out a ruling in which it granted stay of further proceedings in respect of the matter dealing with competence of the court and order of interim injunction. Chief U. N. Udechukwu, SAN maintained that the stay of proceedings in respect of the above matter pending appeal to the Supreme Court in respect of same has nothing to do with the main appeal. He then desired to take their pending motion for departure from the rules so as to facilitate the entry of the appeal proper in this court. We called on all the counsel to address us on the propriety or otherwise of delving into the main appeal after the stated stay of proceedings in respect of the then pending matter was granted.
On 11th February, 2004, all learned Counsel for the parties advanced useful submissions in respect of their stand points.
Chief U. N. Udechukwu, SAN observed that the appeal has not been entered in this court. As such, it cannot be subject of stay of proceedings yet. He stated it clearly that the matter that came before the court was a motion for interlocutory injunction pending appeal. The appeal to the Supreme Court is in respect of a preliminary objection to motion for interlocutory injunction. He felt that what this court stayed was further hearing on motion for interlocutory injunction and such cannot extend to the substantive appeal that has not yet been entered. He observed that there is no preliminary objection against the main appeal. He referred to the case of Liyanage v. San & Anor. (1998) 13 NWLR (Pt.582) 500 at 506.
The senior Counsel prayed that the stay of proceedings ordered in respect of the initial pending matter be kept within its limit, as there is no special circumstance to extend it to the substantive appeal that has not yet been entered as there is only an application before the court for moves to enter the appeal. He further observed that the ultimate results of the appeal in the Supreme Court and the determination of appeal in this court are different. He finally submitted that whatever order is made in the substantive appeal can never render nugatory the appeal before the Supreme Court.
Wole Adebayo, Esq, of counsel for the 1st respondent, maintained that the applicant applied for stay of proceedings in the entire case and same was granted as prayed.
He referred to Order 5 rule 3 of the Court of Appeal Rules, 2002. He felt that this court lacks jurisdiction to review its ruling, since it is clear on its face. He called in aid of his stand point the cases of Soyannwo v. Akinyemi (2001) 8 NWLR (Pt.714) 95 at 117; Ibe v. Onuorah (No.2) (2001) 9 NWLR (Pt.719) 519 at 525-526. He maintained that the court becomes functus officio in such matters.
Learned Counsel felt that it is irrelevant that the appeal has not been entered. He referred to section 16 of the Court of Appeal Act and the case of Akeem v. University of Ibadan (2001) 15 NWLR (Pt.736) 352 at 369. He maintained that the determination of the appeal at the Supreme Court will affect the hearing of the main appeal. He posited that the decision of the Supreme Court in respect of applicant’s reliefs should not be prejudiced.
R. N. Chenge, learned Counsel for the 2nd respondent (IGP) submitted that the issue is not to review the ruling on stay of proceedings. Rather, it is to state clearly which of the proceedings was stayed. He maintained that the applicant never prayed for stay of proceedings in respect of the main appeal. He submitted that a party cannot be given more than what he asks. He cited Egbuo v. Chukwu (1998) 10 NWLR (Pt.570) 499.
Learned Counsel submitted that in the interest of justice, a narrow interpretation should be given to the phrase – ‘in this case’ to mean only the interlocutory application bearing in mind that the applicant is not estopped from bringing motion on stay of proceeding in respect of the main appeal which will then be taken on its merit. He felt that whatever may be the relief sought at the Supreme Court, it is his prayer in this court that can be considered; he cannot be granted a bonus.
Chief U. N. Udechukwu, SAN, in reply observed that it is the ground of appeal and not the reliefs sought that this court took into consideration in granting stay of proceedings. He felt that the term the case – is not a legal term of art. In general terms, it means the issue placed before the court for adjudication. It is subsumed under cause and matter vide section 31 of the Court of Appeal Act, 1976.
He finally observed that when this court granted stay in the matter, such related to proceedings in respect of motion for injunction.
There is no iota of doubt about it that there is a gulf of difference between cause and matter. Often, a matter may arise before or after a cause is heard and determined. The distinction is best captured by section 31 of the Court of Appeal, 1976.
There is no gainsaying the fact that appeal herein has not yet been entered. The motion for stay of proceedings has no bearing with an appeal that has not yet been entered, stay of proceedings was in respect of the pending matter before the court. The applicant should not expect that he was given more than what he asked for. He was not given a bonus in respect of an appeal that is yet to come on board. The case of Egbuo v. Chukwu (supra) cited by the counsel for the 2nd respondent is of moment.
The matter dealt with is appeal against the order made by this court in respect of interlocutory injunction. Should the main appeal be kept in the cooler as well, pending the determination of an appeal on a matter which preceded the main appeal? I think not. Learned Counsel for the 1st respondent talked of this court being functus officio in the prevailing circumstance. The issue, to my mind, is not a review of the ruling on stay of proceedings. Rather, this court is called upon to demarcate its limit. And I see nothing unusual in so doing.
I agree with the senior Counsel for the appellant/applicant that the tag – the case – is not a strict legal term of art. In general terms, it means the issue placed before the court for adjudication. It is subsumed under cause and matter. The ruling on stay of proceedings related to the matter, which came up before the appeal proper is entered. It will be tantamount to deceit to say that the stay granted in respect of the matter must extend to an appeal a cause – that is yet to be entered.
Surely, the stay of proceedings in respect of matter before the court before the main appeal is entered cannot and did not affect taking due steps to get the appeal on board. Due steps can be taken to get the main appeal entered in this court. The senior Counsel is at liberty to take necessary steps deemed fit to get the appeal entered.
I order accordingly.
OGUNBIYI, J.C.A.: In a stay of proceedings application pending an appeal, the significant central consideration is the preservation of the res. In the Supreme Court authority of Kigo (Nigeria) Ltd. v. Holman Bro (Nig.) Ltd. & Anor. (1980) 5-7 SC 60, reported in N.S.C.C. Vol. 12 1979-1981 at page 209, their Lordship had this to say among others:
” …The court from which an appeal lies as swell as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal, if successful is not nugatory.”
In other words, all courts whether trial or appellate possess power of preservation of the subject matter in their custody. The said principle of law as stated was followed from that restated in the authority of Andler v. Duke (1932) 3 D.L.R. 210. Furthermore, and in The Zamora (1916) 2 AC 77, it was also firmly established that preservation of the res is not predicated on whether it is tangible or not.
The court over the years have developed some basic principles upon which an application for stay of proceedings could be considered and granted or refused. For instance, in the decided case of Caribbean Trading and Fidelity Corp. v. N.N.P.C. (1991) 6 NWLR (Pt.197) p.352 at 361-363, one of the most significant central consideration was the preservation of the res with no relevance to whether or not it was tangible. The same principle was highlighted in the case of Yinka Falowuju & Son Ltd. v. T. A. Hammond Projects Ltd. 3 F.R.C. (1977) 373.
Another relevant factor also considered in the Carribbean Trading and Fidelity Corp v. N.N.P.C., is where the appeal raises an issue of jurisdiction. The application at hand touches on the jurisdiction and competence of this court.
The learned Attorney-General, Anambra State, Chief, the Hon. N. Udechukwu (SAN), submitted and argued in favour of an appeal on an interlocutory ruling to be taken at the final decision of he court. The contention generally is no doubt apt and appropriate and in respect of which the authority in Onwe v. Nwaogbinya (2001) 1-2 S.N.I.P. 157 at 168 is in favour wherein their Lordship per Ejiwunmi, J.S.C. had this to say:
” … an appeal against an interlocutory ruling may be included in the appeal against the final decision of the court.”
The intention was to guard against an unnecessary delay in the determination of the main issues joined by the parties in the case under consideration.
However, by the use of the word ‘may’ by his Lordship it certainly signifies and gives room for exceptional circumstances to the good intentional general proposition.
In other words, and with the appeal relating to the issue at hand touching on the jurisdiction of this court, it may, in the circumstance, be wise to succumb in favour of the application. This is more so especially having regard to the importance and the place of jurisdiction as a cardinal, deciding central authority in the judicial system and adjudication.
The concept of jurisdiction is in no doubt priced very highly by the courts. Consequently therefore, any arrogation of such, which is not accorded by the law renders its proceedings, however, ably and tenaciously conducted, a nullity. The authority in the decision of Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411, is relevant and in point, where one of the factors considered in the granting of a stay was predicated on the issue of jurisdiction.
Having regard to the painstaking and careful historical back ground given by my learned brother in the lead ruling and which has given rise to the application at hand, it is obvious that the matter had come a very long way, especially in the consideration of the initial steamy starting point.
Following from the above therefore, in my humble opinion and most particularly based on the further reasoning so advanced by my learned brother, Fabiyi, JCA, I also, agree that this application should succeed. I also, abide by all order made on the lead ruling.
DONGBAN-MENSEM, J.C.A.: My learned brother, Fabiyi, (JCA) has fully recounted the circumstances, which led to this application in the lead ruling. He has also, fully considered the principles relevant to this application. I agree fully with the reasoning and conclusion arrived at.
Primarily, by the provisions of section 233(3)(a) of the Constitution the Federal Republic of Nigeria, 1999, an appeal from this court shall lie as of right, where the ground of appeal involves question of law alone.
An appeal in which the grounds thereof raise issues of jurisdiction is a ground of law, which cannot be dismissed lightly.
Jurisdiction is the body and soul of every judicial proceedings before any court or tribunal and without which a proceeding no matter how well conducted would come to naught. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Also, Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156.
We must heed these fundamental decisions of the Apex Court as this court cannot afford the leverage of the leisure of acting in futility. Further by the established norms of the dignity of our honoured profession, caution and good judgment dictates a stay of proceedings, once an appeal has been filed before a superior court raising such weighty issues as jurisdiction, which may very well be recondite.
We must refrain from issuing any order to the Inspector-general of Anambra State to wit that we invoke the powers of this court, under the provisions of section 16 of the Court of Appeal Act of 1976, Cap. 75, Laws of the Federation of Nigeria, 1990, to compel the I-G to restore to the appellant/respondent, a full police detail and all paraphernalia of the office of Governor of Anambra State. We must however, prolong the life span of the interim order of this court made on the 12th January, 2004, which order shall remain in force, until the final determination of the appeal pending before the Supreme Court.
For the fuller reasons and conclusions made in the lead ruling, I too, would allow this appeal.
The preliminary objection is hereby, dismissed. I abide by the order made in the lead ruling.
Appeal allowed.
Appearances
Chief U. N. Udechukwu, SAN (with him, O. B. Onyali, SAN and Emeka Ngige, SAN)For Appellant
AND
Wole Adebayo, Esq. – for the 1st Respondent
R. N. Chenge, Assistant Director, Federal Ministry of Justice (with him, C. O. Oxaro, DSP, N. L. Iwuchukwu, Legal Officer and A. Orti, Esq.) – for the 2nd RespondentFor Respondent
