DURU & ORS v. AGU & ORS (2020)

DURU & ORS v. AGU & ORS

(2020)LCN/14772(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, November 23, 2020

CA/KN/500/2018

RATIO

APPEAL: REQUIREMENT FOR AN APPEAL FROM THE HIGH COURT OR FEDERAL HIGH COURT TO THE COURT OF APPEAL ON FACTS OR MIXED LAW AND FACTS

It is correct law, that an appeal from the High Court or the Federal High Court to the Court of Appeal on facts or mixed law and facts, requires leave of the High Court, the Federal High Court or the Court of Appeal. See Section 242(1) of the 1999 Constitution (as amended) and GARUBA VS. OMOKHODION & ORS. (2010) LPELR – 9088 (CA) AND ADETONA VS. EDET (2004) 10 NWLR (PT. 899) 338. Where such leave is required but has not been obtained, the appeal is incompetent – N.I.C & ORS. VS. ACEN INSURANCE CO. LTD. & ORS. (2006) LPELR – 5936 (CA). This is because the leave is a pre-condition to the filing of a case. See C.B.N & ORS. VS. OKOJIE (2002) 8 NWLR (PT. 768) 48. PER YAHAYA, J.C.A.
APPEAL: GUIDES PROVIDED TO AID THE COURTS TO DETERMINE THE NATURE OF GROUNDS OF APPEAL

A Court of law is therefore required to examine thoroughly, the grounds of appeal together with the particulars in order to discern their nature. Are they grounds of law or grounds of facts or mixed law and facts? Guides have been provided to aid the Courts to determine the nature of grounds of appeal. Following OGBECHIE VS. ONOCHIE & ORS. (1986) 2 NWLR (PT. 23) 484, Onnoghen JSC (as he then was) in the case of EHINLANWO VS. OKE & ORS. (2008) 6-7 SC (PT. 11) 123 AT 159, held that “A ground of law arises where the ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misapplied the law to be proved or admitted facts. Where the ground of appeal questions evaluation of evidence before the application of the law, it is a ground of mixed law and fact.” See also CHROME AIR SERVICES LTD. & ORS. VS. FIDELITY BANK (2017) LPELR – 43470 (SC) AT 199 AND METAL CONSTRUCTION (W.A) LTD. VS. MIGLIORE (1990) 1 NWLR (PT.126) 299. In CHROME AIR SERVICES (SUPRA) at pages 23-24 per Nweze JSC, the Supreme Court held
“……where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law….”
Still on the criteria to distinguish a ground of law from a ground of fact or mixed law and facts, Sanusi JSC in the case of STATE VS. OMOYELE (2016) LPELR – 40842 (SC) posited that “(i) First is the thorough examination of the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved and admitted. (ii) Where a ground complains of a misunderstanding by the lower Court of the law, or misapplication of the law to the facts already proved or admitted, it is a ground of law. (iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact. (iv) A ground which raises questions of pure facts, is a ground of fact. (v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law. (vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact. (vii) Where the lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law. (viii) Where the lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law. (ix) Where the lower Court reaches a conclusion, which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been a misconception of law. This is a ground of law. (x) Where the conclusion of the lower Court is one of possible resolution but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law. (xi) Where the Court of appeal finds such application to be wrong and decides to make its own findings, such findings made by the Court of appeal, are issues of fact and not law. (xii) Where the Court of appeal interferes in such a case and there is a further appeal to a higher Court of appeal, on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal, is a ground of law not fact. (xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradiction in the evidence of witnesses, it is purely a ground of fact.” PER YAHAYA, J.C.A.
APPEAL: EFFECT OF WHEN A GROUND OF APPEAL IS OF LAW ON THE APPEAL

Once one ground of appeal is of law, the appeal is competent – AMADU DANTANI VS. BALA (SUPRA) AND HON. ROBINSON UWAK VS. HON. IBASSEY EKPENYONG (2019) 2 SCNJ 435 AT 453. PER YAHAYA, J.C.A.

JURISDICTION: NATURE OF THE ISSUE OF JURISDICTION

Again, it is trite, that Courts are creations of the Constitution or statutes, and that is where their jurisdictions are set out and defined. They are not provided by Rules of Court or agreement of parties. The question of jurisdiction of a Court is therefore one of law. In WEMA SECURITIES AND FINANCE PLC. VS. NAIC (2015) LPELR – 24833 (SC) per Nweze JSC, it was held that “….However, the issue of jurisdiction….could be raised for the first time before an appellate Court with or without leave”. Therefore, once the issue of jurisdiction can be raised without leave, it is a question of law. See also ADERIBIGBE VS. ABIDOYE (2009) 10 NWLR (PT.1150) 592. Since the ground is one of law, it does not come within the ambit of Section 242 of the Constitution of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and so no leave is required to file same. PER YAHAYA, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

BARR. M. N. DURU 2. CHIEF C. NWOSU 3. ENGINEER S. N. OBIOHA 4. MR. CYRIL DURU 5. MR. INNOCENT IJEZIE 6. MR. CHIDI EKEZIE 7. MR. I. K. IBEGBULEM 8. PIUS CHUKWUKERE 9. CHINEDU NZEAKOR 10. OBIOMA AMATOBI 11. CHINEYE MBACHU 12. EDWIN MBOY 13. OBIOMA EKEZIE (For Themselves And On Behalf Of Majority Shareholders Of The Property Known And Called No. 35 Abeokuta Road, S/Gari Kano) APPELANT(S)

And

BARRISTER A. C. AGU (Sued For Himself And As The Chairman Umuako Development Union, Kano Branch) 2. MR. LAZAROUS ONUIGBO (Sued For Himself As The Secretary Umuaka Dev. Union, Kano Branch) 3. MR. CHIBUIKE ODUMODU (Sued For Himself And As The Assistant Secretary Umuaka Dev. Union Kano Branch) RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Ruling of the Kano State High Court of Justice delivered in Suit No. K/101/2013 by Hon. Justice Ibrahim Musa Karaye on 23rd May, 2018.

The summary of the facts that led to this appeal are that the Appellants filed an Originating Summons dated 21st February, 2013 before the trial Court in Suit No. K/101/2013. In response to the suit, the Respondents filed a preliminary objection challenging the jurisdiction of the trial Court to hear the suit. The lower Court heard the Respondents’ preliminary objection and same was dismissed. Dissatisfied with the dismissal, the Respondents appealed to the Court of Appeal in Appeal No. CA/K/346/2014. The Court after hearing the appeal on merit, dismissed same and affirmed the ruling of the trial Court. Aggrieved further, the Respondents appealed to the Supreme Court – Appeal No. SC/409/2017.

However, while the appeal was pending at the Supreme Court, the 1st Respondent filed a motion on notice dated 23rd May, 2017 before the trial High Court praying for an order staying further proceedings in the

matter or adjourning the suit pending the hearing and determination of the appeal at the Supreme Court. The trial Court granted the prayer. Piqued with the grant of the above application and the failure of the Respondents to diligently prosecute their appeal at the Supreme Court, the Appellant brought a motion dated 26th February, 2018, seeking to set aside the ruling of the trial Court staying the proceedings before it, on grounds of lack of jurisdiction of the trial Court to grant same. The application was heard and dismissed by the trial Court on 23rd May, 2018, hence this appeal.

The Appellants’ appeal vide their notice of appeal is premised on five grounds of appeal. The grounds are: –
GROUND 1
The lower Court erred in law when it dismissed the Appellants’ motion on notice dated and filed on 26th February, 2018, seeking to set aside the order of the lower Court dated 30th October, 2017, staying its Proceedings, which was granted while the Supreme Court alone was seized of the matter as a result of which the lower Court had no jurisdiction to have granted the stay of its proceedings when it did, which dismissal has occasioned

a miscarriage of justice to the Appellants.
GROUND 2
The lower Court erred in law when it held that the Appellants’ motion on notice dated and filed on 26th February, 2018, constitutes an abuse of Court process while indeed same lawfully raised bona fide serious issues of law bothering on the lack of jurisdiction of the lower Court to have entertained and granted the 1st Respondent, application staying its proceedings while the Supreme Court was seized of the matter and was the only rightful, appropriate and competent Court to have entertained such an application or any Respondents’ application whatsoever thereby occasioning a miscarriage of justice to the Appellants.
GROUND 3
The lower Court erred in law when it refused and or failed to grant the Appellants’ motion on notice dated and filed on 26th February, 2018, notwithstanding the affidavit evidence adduced by the Appellants to the effect that 1st Respondent has acted in malafide since the grant of stay of proceedings in his favour which fact is manifest in his refusal and or neglect to prosecute his appeal in Supreme Court No. SC/409/2017, pending before the Supreme

Court which decision has now occasioned a miscarriage of justice to the Appellants.
GROUND 4
The lower Court erred in law when contrary to the well-entrenched principles of stare-decisis, it refused to follow the decisions of the Supreme Court inter-alia in the case of ALAWIYE V. OGUNSANYA (2012) SCNJ (PT. III) 942 AT 969 – 970, LINES 35 -50 AND HENRY ENG. LTD. VS. S.A.YAKUBU (NIG.) LTD. (2009) 41 WRN 43 AT 56, LINES 15 -20 SC, the facts of which cases are on all fours with the facts of this appeal, wherein the Supreme Court decided emphatically that Interlocutory appeals, which would normally end at this Honourable Court should not be used as a basis for delaying a matter before the lower Court or obtaining an order staying the proceedings of the lower Court.
GROUND 5
The Ruling of the lower Court is against the weight of evidence.

The Appellants sought for an order allowing the appeal and setting aside in its entirety the Ruling of the lower Court delivered on 23rd May, 2018.

The Appellants’ brief of argument settled by Morgans C. Omereonye Esq., was filed on 15th October, 2018 but was deemed filed on 14th January

The 1st Respondent’s brief of argument settled by Chief A. C. Agu, Esq., was filed on 7th January, 2019 but was deemed filed on 10th June, 2020. In addition to that, the 1st Respondent filed a Notice of preliminary objection on 7th January 2019. On the part of the 2nd and 3rd Respondents, their counsel N. F. Nwofia Esq., filed 2nd and 3rd Respondents’ brief of argument on 24th September, 2019 but deemed filed on 30th June, 2020. On 10th July, 2019, the Appellants filed Appellants’ reply brief to the 2nd and 3rd Respondents’ brief of argument.From their five grounds of appeal, learned counsel for the Appellant distilled a lone issue for determination, to wit:
“Whether based on the facts and circumstances of this appeal, the Court erred in law when it dismissed the Appellants’ application by way of motion on notice dated and filed on 26th February, 2018, seeking to set aside the Ruling of the Court delivered on 30th October, 2018, even though the Respondents’ appeal in respect of the same matter had been entered in the Supreme Court as Appeal No. SC/409/2017?”

The 1st Respondent also raised a lone issue for

determination, thus:
“Whether the Court below rightly dismissed the application dated 26/2/2018 based on incompetence/abuse of Court process and lack of jurisdiction.”

On the part of the 2nd and 3rd Respondents, their learned counsel raised two issues for determination to wit:
(a) Whether from the Court’s hierarchical order, judicial precedents, statute laws, the lower Court has the jurisdiction to set aside its own decision reached on the merit on the 30/10/2017 in accordance with the law?
(b) Whether the lower Court erred in law by holding that the Appellants’ motion on notice dated the 26/2/2018 was an abuse of Court process and dismissed same.

In determining this appeal, I will adopt the Appellants’ issue for being apt. However, before delving into the merit of the appeal, I will consider the 1st Respondent’s preliminary objection challenging the competence of the Appellants’ notice of appeal.

The 1st Respondent’s preliminary objection was anchored on two grounds of appeal, thus:
GROUND ONE
The grounds of appeal contained on the notice of appeal dated 31/5/2018 and

filed on 31/5/2013 do not emanate or flow from the ratio decidendi of the Court below.
GROUND TWO
The grounds of appeal contain facts or mixed law and facts and the appeal is an interlocutory appeal and no leave to appeal was sought and obtained by the Appellant.

It was contended that none of the grounds challenges the decision of the lower Court except ground two. Counsel submitted that it is proper for the grounds of appeal to be based on the decision given by the lower Court. Counsel referred to the case of TABANSI VS. TABANSI (2017) ALL FWLR (PT. 891) PG. 784 AT 821 PARA E. He submitted that in the instant case, the Appellant anchored his appeal on other issues other than on lack of jurisdiction which is the ratio decidendi, of the Ruling.

On the second ground of the preliminary objection, it was submitted that the grounds of appeal contain facts or mixed law and facts and the appeal is an interlocutory appeal and no leave to appeal was sought and obtained by the Appellants. Reference was made to Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). And the case of K.R.K.H. NIG. LTD. VS. FBN LTD. (2017)

ALL FWLR (PT. 878) PG. 539 AT 542. It was submitted that the Appellants’ failure to obtain leave before the appeal was filed, rendered the entire appeal incompetent and the Court has no jurisdiction to hear and determine the appeal. Reliance was placed on the case of C.A.S. LTD. VS. F.B.N. PLC. (2018) ALL FWLR (PT. 920) PG. 135 AT 154 PARAS. D-E. Learned counsel urged the Court to uphold the preliminary objection and strike out this appeal with substantial cost against the Appellants.

In response, learned counsel for the Appellants reproduced the grounds and the Ruling of the trial Court to submit that from the contents of the Ruling, it is right to conclude that the substance of all the complaints contained in the grounds of the Appellants’ notice of appeal arose from the Ruling of the lower Court. He urged the Court to so hold.

On the second ground of the preliminary objection, it was submitted that all the grounds of the Appellants’ notice of appeal raised purely complaints consisting grounds of law. On whether the grounds of the Appellants’ notice of appeal are of law or mixed facts and law, learned counsel referred to

the cases of NNPC VS. FAMFA OIL LTD. (2012) 17 NWLR (PT. 1328) SC. 148; ENTERPRISE BANK VS. AROSO (2014) 3 NWLR (PT. 1394); A.T.S & SONS. VS. BEN ELECTRONICS CO. NIG. LTD. (2019) ALL FWLR (PT. 986) SC. 567 AND LOVLEEN TOYS VS. KOMOLAFE (2012) 11 SCNJ 226 AT 241-243. Learned counsel argued that applying the criteria established in the above cases to the grounds 1, 2, 3 and 4 of the Appellants’ notice of appeal, all the said grounds of appeal are purely issues of law and are competent. He urged the Court to discountenance the 1st Respondent’s argument in support of grounds 1 and 2 of his preliminary objection, disregard the case law cited by the 1st Respondent as they were cited out of context and as well dismiss the said 1st Respondent’s notice of preliminary objection accordingly.

As reproduced earlier, ground 1 of the appeal, is on error of law committed by the trial Court when it dismissed the Appellants’ motion dated and filed on 26th February, 2018, seeking to set aside its earlier Order made on 30th October, 2017, at the time when the appeal had been entered at the Supreme Court for lack of Jurisdiction. The Ruling of the

trial Court at page 94 of the record is very clear. It held that because the appeal was still pending before the Supreme Court, “this Honourable Court has no jurisdiction to entertain this matter”. It struck out the Motion dated and filed on 26th February, 2018, although it erroneously stated that the Motion was dated “6th February, 2018”. In my view therefore, ground 1 of the appeal emanated from the ratio decidendi of the Ruling of the trial Court delivered on 23rd May 2018.

As for ground 2 of the appeal, learned counsel for the 1st Respondent/Objector, clearly admitted in the brief, that it challenged the decision of the trial Court. At page 3 of the brief, learned counsel submitted that –
“A perusal of the grounds of Appeal contained in the Notice of Appeal dated 31st May, 2018 and filed on the same date, shows that none of the grounds is challenging the decision of the lower court except ground 2….”

Counsel is right. At page 94 of the record, the trial Court in its Ruling, held that:
“In fact, this application is an abuse of the Court process. And I so hold.”

Ground 2 of the appeal states that; “The lower Court erred in law when it held that the Appellants’ Motion on Notice dated and filed on 26th February, 2018, constitutes an abuse of Court process….” So even if it were to be held that ground 1 is incompetent, ground 2 having arisen from the ratio of the Ruling, is competent and that sustains the appeal. This is because if an Appellant files many grounds of appeal and only one is adjudged competent, that competent ground is sufficient to sustain the appeal – MONIDAB MERCANTILE COMPANY LTD. & ANOR. VS. AMCON (2020) LPELR – 49791 (CA). The appeal is sustained even if the competent ground is an Omnibus ground – AMADU DANTANI VS. BALA (2018) LPELR – 46774 (CA). Ground 5 of this appeal is an Onmibus ground. The first ground of the Preliminary Objection is therefore discountenanced.

On the second ground of the Preliminary Objection, the grouse of the 1st Respondent is that the grounds of appeal are on mixed law and facts in an Interlocutory appeal without leave of Court sought for and obtained, and therefore incompetent.

It is correct law, that an appeal from the High Court or the

Federal High Court to the Court of Appeal on facts or mixed law and facts, requires leave of the High Court, the Federal High Court or the Court of Appeal. See Section 242(1) of the 1999 Constitution (as amended) and GARUBA VS. OMOKHODION & ORS. (2010) LPELR – 9088 (CA) AND ADETONA VS. EDET (2004) 10 NWLR (PT. 899) 338. Where such leave is required but has not been obtained, the appeal is incompetent – N.I.C & ORS. VS. ACEN INSURANCE CO. LTD. & ORS. (2006) LPELR – 5936 (CA). This is because the leave is a pre-condition to the filing of a case. See C.B.N & ORS. VS. OKOJIE (2002) 8 NWLR (PT. 768) 48.
A Court of law is therefore required to examine thoroughly, the grounds of appeal together with the particulars in order to discern their nature. Are they grounds of law or grounds of facts or mixed law and facts? Guides have been provided to aid the Courts to determine the nature of grounds of appeal. Following OGBECHIE VS. ONOCHIE & ORS. (1986) 2 NWLR (PT. 23) 484, Onnoghen JSC (as he then was) in the case of EHINLANWO VS. OKE & ORS. (2008) 6-7 SC (PT. 11) 123 AT 159, held that “A ground of law arises where the

ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misapplied the law to be proved or admitted facts. Where the ground of appeal questions evaluation of evidence before the application of the law, it is a ground of mixed law and fact.” See also CHROME AIR SERVICES LTD. & ORS. VS. FIDELITY BANK (2017) LPELR – 43470 (SC) AT 199 AND METAL CONSTRUCTION (W.A) LTD. VS. MIGLIORE (1990) 1 NWLR (PT.126) 299. In CHROME AIR SERVICES (SUPRA) at pages 23-24 per Nweze JSC, the Supreme Court held
“……where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law….”
Still on the criteria to distinguish a ground of law from a ground of fact or mixed law and facts, Sanusi JSC in the case of STATE VS. OMOYELE (2016) LPELR – 40842 (SC) posited that “(i) First is the thorough examination of the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved and admitted. (ii) Where a ground complains of a misunderstanding by the

lower Court of the law, or misapplication of the law to the facts already proved or admitted, it is a ground of law. (iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact. (iv) A ground which raises questions of pure facts, is a ground of fact. (v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law. (vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact. (vii) Where the lower Court approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law. (viii) Where the lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law. (ix) Where the lower Court reaches a conclusion, which cannot reasonably be drawn from the facts as

found, the appeal Court will assume that there has been a misconception of law. This is a ground of law. (x) Where the conclusion of the lower Court is one of possible resolution but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law. (xi) Where the Court of appeal finds such application to be wrong and decides to make its own findings, such findings made by the Court of appeal, are issues of fact and not law. (xii) Where the Court of appeal interferes in such a case and there is a further appeal to a higher Court of appeal, on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of appeal, is a ground of law not fact. (xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradiction in the evidence of witnesses, it is purely a ground of fact.”
It is therefore clear that complaints of an error which has emanated or arisen from the conclusion on undisputed facts, are a ground of law. In the instant appeal, it is not controverted or disputed, that the

record of appeal in SC/409/2017 had been transmitted to the Supreme Court since the 10th of May, 2017. The appeal had then been entered at the Supreme Court as of that date. The trial Court concluded that it therefore had no jurisdiction to entertain the Motion, and also that it was incompetent. These are conclusions that have arisen from the undisputed fact of entering of the appeal at the Supreme Court. It is therefore a ground of law. Once one ground of appeal is of law, the appeal is competent – AMADU DANTANI VS. BALA (SUPRA) AND HON. ROBINSON UWAK VS. HON. IBASSEY EKPENYONG (2019) 2 SCNJ 435 AT 453. Again, it is trite, that Courts are creations of the Constitution or statutes, and that is where their jurisdictions are set out and defined. They are not provided by Rules of Court or agreement of parties. The question of jurisdiction of a Court is therefore one of law. In WEMA SECURITIES AND FINANCE PLC. VS. NAIC (2015) LPELR – 24833 (SC) per Nweze JSC, it was held that “….However, the issue of jurisdiction….could be raised for the first time before an appellate Court with or without leave”. Therefore, once the issue of

jurisdiction can be raised without leave, it is a question of law. See also ADERIBIGBE VS. ABIDOYE (2009) 10 NWLR (PT.1150) 592. Since the ground is one of law, it does not come within the ambit of Section 242 of the Constitution of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and so no leave is required to file same. Ground 2 of the Preliminary Objection is thus also discountenanced. The Preliminary Objection is without merit, is misconceived and is therefore discountenanced.

MAIN APPEAL
On the main appeal, learned counsel for the Appellant began his submissions on the constituent of jurisdiction of the Court to determine an action brought before it, to wit: it is properly constituted with respect to the number and qualification of its members; the subject matter of the action must be within its jurisdiction and the action is initiated by due process of law and that any condition precedent to the exercise of jurisdiction may have been fulfilled. He referred to CHIEF JOHN OYEGUN VS. CHIEF FRANCIS A. A. NZERIBE (2010) FWLR (PT. 516) SC AT PP.438 – 439 PARAS. F-A, MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR (PT. 4) 587.

Also on the authority of F.H.A. VS. KALEJAIYE (2010) 19 NWLR (PT. 1226) SC 147 AT Pp. 164, PARAS. B-D, counsel emphasized the importance of the issue of jurisdiction.

On the admission of the 1st Respondent, that his appeal against the dismissal of his preliminary objection by this Court had been entered at the Supreme Court, counsel argued that the lower Court lacked the jurisdiction to grant the 1st Respondent’s application for stay of proceedings. He referred to paragraph 2 of the 1st Respondent’s counter affidavit at pages 53-54 of the record of appeal, Section 123 of the Evidence Act, 2011 and the cases of NNPC VS. CLIFCO (NIG.) LTD. (2011) ALL FWLR (PT. 583) SC 1875 AT 1896, OKPOSIN VS. ASSAM (2005)14 NWLR (PT. 945) SC, SANTI VS. GABOBIRI (2006) ALL FWLR (PT. 292) P.100 CA AND ODUMEGWU OJUKWU VS. OWWUDIWE (1984) 2 SC 15 AT 88, on the principle, that facts admitted need no further proof. Learned counsel further placed reliance on the provisions of Order 8 Rule 11 of the Supreme Court Rules 1999 (as amended) which is akin to the provisions of Order 4 Rule 11 of the Court of Appeal Rules, 2011 (now 2016). He submitted that once the provisions of

a statute or rules of Court are clear and simple, they should be given their plain and unambiguous meaning – NOBIS ELENDU VS. INEC (2015) 16 NWLR (PT. 1485) P.197 AT P.224 PARAS E-F; CORPORATE IDEAL INS. LTD. VS. AJAOKUTA STEEL CO. LTD. (2014) 7 NWLR (PT. 1405) P.165 SC; ARDO VS. NYAKO (2014) 10 NWLR (PT.1416) P.591 SC; REGD TRUSTEES, A.O.N VS. N.A.M.A (2014) 8 NWLR (PT.1408) P. 1 SC; AND FEDERAL REPUBLIC OF NIGERIA V. CHIEF JOSHUA C. DARIYE (2011) LPELR – 4151.

In interpreting the provision of Order 4 Rule 10 of the Court of Appeal Rules which is similar to Order 8 Rule 11 of the Supreme Court Rules, learned counsel referred to the case of IKPEAZU VS. OGAH & ORS. (2016) LPELR – 40845 (CA) where the Court held that after an appeal has been entered, all other applications are to be made in the appellate Court, even though application may be filed in the Court below for proper transmission to the appellate Court. Counsel contended that applying the decision in the above case, the lower Court had no jurisdiction to have heard and determined the 1st Respondent’s application for stay of proceedings, when the Court was aware that the

1st Respondent’s appeal had been entered in the Supreme Court.

It was further contended that the Rules of Court are not made for the fun of it. Instead, they are made to be strictly obeyed and it is the duty of the Court to give effect to regulations made for practice. He referred to the cases of IFEANYI CHUKWU T.I.V. LTD. VS. O.C.B. LTD. (2015) 17 NWLR (PT. 1487) 1 AT P.22 -27 PARA. H-A; WILLIAM HOPERISING VOLUNTARY FUNDS SOGETY (1982) 12 SC. 145; JIMOH OJUGBELE VS. MUSEFIU O. LAMIDI & ORS. (1999) 10 NWLR (PT.621) 167 AT PG. 171 PARA F; FOLARANMI VS. ABRAHAM (2004) 10 NWLR (PT. 881) CA 434 AT 454-455 PARA. H-B; AFRIBANK (NIG.) PLC. VS. AKWARA (2006) 5 NWLR (PT. 974) SC AT 619 654-655; AND G.M.O.N. & S. Co. VS. AKPUTA (2010)9 NWLR (PT. 1200) SC 443 AT PAGE 473 PARA. B-E. On the legal effect of the failure to comply with the rules of Court, counsel relied on the case of ANYANWOKO VS. OKOYE (2010) 5 NWLR (PT.1188) SC 497 AT 520-521 PARAS. G-C. In the same vein, learned counsel submitted that where a statute or rule of law lays down a procedure or condition precedent for doing anything or that a method is to be employed for doing a thing, such a

procedure or condition precedent must be strictly complied with and no other method must be adopted. He relied on the cases of NWABUEZE VS. OKOYE (1988) 10-11 SC 79; OSEYOMON VS. OJO (1997) 7 SCNJ 377; INAKOJU VS. ADELEKE (2007) ALL FWLR (PT.353) SC B AT 88 PARA. G-H; AND SA’AD VS. MAIFATA (2009) ALL FWLR (PT. 466) 1930) AT 1948 PARAS. D-G. Counsel urged the Court to hold that the lower Court erred in law when it granted the 1st Respondent, a stay of proceeding while the Supreme Court was seized of the matter as the Court had no jurisdiction to do so.

On whether the lower Court was right in holding that it was functus officio to entertain the Appellants’ motion seeking to set aside the Ruling of 30th October, 2018 and that same constituted an abuse of Court process, it was submitted that the lower Court was not functus officio to determine the said Appellants’ motion for it is settled law that the judgment/ruling/decisions of a Court can be set aside by the same Court, when inter-alia, it is a nullity and or fraudulently obtained. He referred to the case of TOMTEC (NIG.) LTD. VS. FEDERAL HOUSING AUTHORITY (2010) 16 WRN D.24.

On the above authority, learned counsel contended that the Ruling of the lower Court delivered on 30th October, 2018 is a nullity and or fraudulently obtained, granted in flagrant disregard and disrespect for the provisions of Order 8 Rule 11 of the Supreme Court Rules, 1999 (as amended). Counsel submitted that the lower Court by virtue of the settled principles of stare decisis had a duty to follow the plethora of decisions of this court on the effect of the Supreme Court being seized of a matter. He referred to IKPEAZU VS. OGAH & ORS. (SUPRA); OSAKUE VS. FEDERAL COLLEGE OF EDUCATION (2010) 3 SCNJ (PT. 11) 529 AT 545.

Counsel urged the court to invoke its inherent powers as provided by Section 15 of the Court of Appeal Act to hear the Appellants’ Originating Summons dated 21st February, 2013 as all the Court processes of all the parties to the matter in Suit No. K/101/20 are already part of the printed record of appeal. He submitted further that substantial justice will be done if this Court hears the Appellants’ Originating Summons and grant same in view of the delay in hearing same which has occasioned injustice by the 1st Respondent’s

incessant interlocutory appeal. Alternatively, counsel urged the Court to forward the said Appellants’ Originating Summons for hearing by the Supreme Court, under its inherent powers as enshrined in Section 22 of the Supreme Court Act. He urged the Court to resolve this issue in favour of the Appellants against the Respondents.

In his response, learned counsel for the 1st Respondent submitted that the lower Court rightly dismissed the application dated 26th February, 2018 in its Ruling delivered on 23rd May 2018. He submitted that the Ruling of the lower Court granting stay of proceedings was an appealable decision in line with Section 318(1) of the 1999 Constitution. Counsel opined that the option open to the Appellant after the Ruling of 30th October, 2017, was to file an appeal against same or file an application before the Supreme Court to strike out the 1st Respondent’s appeal for failure to file a brief of argument, ten weeks after the appeal was entered at the Supreme Court. He referred to Order 9 Rule 1 of the Supreme Court Rules.

It was submitted that the Appellants’ application of 26th February 2018 was an abuse of Court of

process, as the Appellants failed to follow the proper way to attack the decision given by the Court below on 30th October, 2017. He referred to the case of P.D.P VS. UMEH (2017) ALL FWLR (PT. 888) PP.266 AT 285 -286 PARAS. H-C, on what constitutes abuse of Court process. He urged the Court to dismiss this appeal as lacking in merit.

On the part of the 2nd and 3rd Respondents, their learned counsel submitted that the trial Court had the competence and jurisdiction to reach both decisions delivered on the 30th October, 2017 and 23rd May, 2018 respectively. He argued that the law allows the 1st Respondent as an Appellant before the Supreme Court, to first make an application to the lower Court and it is when the lower Court refuses a party’s application, that the law requires such applications to be further made to the Apex Court seized with jurisdiction. He referred to Order 2 Rule 28 (3 & 4) of the Supreme Court Rules 1999 (as amended). Learned counsel conceded that when an appeal has been entered like the appeal No. SC/409/2017, the Supreme Court is seised with jurisdiction, whether interlocutory or fresh appeal. He referred to Order 8 Rule 11 of the Supreme Court Rules.

However, counsel contended that from the Court’s hierarchical order, judicial precedent, statutory provisions, the lower Court has this requisite jurisdiction to grant the 1st Respondent’s reliefs contained in Motion on notice dated the 23rd May 2017. He referred to EZEOKAFOR VS. EZEILO (1999) 9 NWLR (PT. 619) P.517; KIGO (NIG.) LTD. VS. HOLMAN BROS. (NIG.) LTD. (1980) 5-7 SC, EZOMO VS. A.G. BENDEL STATE (1986) 4 NWLR (PT.36) 448; OGUNREMI VS. DADA (1962) 2 SCNLR 417; ADEWOYIN VS. ADEYEYE (1962) 1 SCNLR; SHODEINDE VS. REGISTERED TRUSTEES OF AHMADIYYA MOVEMENT IN-ISLAM-(1980) 102 SC 163; ECONET WIRELESS LTD. VS. ECONET WIRELESS (NIG.) LTD. (2006) ALL FWLR (PT.300).

It was the submission of counsel, that the decision reached by the trial Court on 23rd May, 2018 refusing to set aside its decision reached on the 30th October, 2017 was in compliance with the laws of the land. He submitted that the decision of 30th October, 2017 was an appealable decision by virtue of OTTI VS. OGAH (2017) ALL FWLR (PT.886) P. 2075 AT 2085; TOMTEC (NIG.) VS. FEDERAL HOUSING AUTHORITY (2010) ALL FWLR (PT.509) 400, and the Appellants did not file an

appeal against the said lower Court decision.

On the Appellants’ grounds of appeal, counsel argued that grounds 1, 3 and 4 did not emanate from the trial Court’s decision. He conceded that issue of incompetence of ground of appeal, is an issue of law affecting the jurisdiction of this Court and can be raised at any stage of the proceeding. He relied on the cases of AGBI VS. OGBE (2004) 18 W.R.N. VOL.18 PG. 44 AT PG. 75-76, TAHIR VS. UDEAGBALA HOLDINGS (2004) 5 WRN VOL. 5 PG. 110 AT PG. 116. He urged the Court to strike out the Appellants’ grounds 1, 3 and 4 of the appeal for being vague, incompetent and bad abinitio. He also prayed the Court to discountenance grounds 1, 2, 3 and 4 of the notice of appeal for being incompetent. He referred to KADZI INTL. VS. KANO TANNERY (2004) 12 WRN VOL. 12 AT PG. 138, NSIRIM VS. NSIRIM (2004) 26 WRN VOL.26, OJELADE VS. SOROYE (1998) 5 NWLR (PT. 549) PG. 284 AT 300, S.P.D. C. NIG. LTD. VS. ABBA (2005) ALL FWLR (PT. 257) 1533 AT 1543 – 1544 PARAS. H-A.

On whether the Appellants’ Motion on notice dated 26th February 2018 was an abuse of Court process, learned counsel submitted that it is

only where there was fraudulent mis presentation of facts, accidental slips, mistakes, typographical error to be corrected or that the lower Court reached its decision per in curium or without jurisdiction that the Court is allowed in law to re-visit, vary, alter or tamper with its own decision. He referred to the case of NATIONAL INSURANCE CORPORATION OF NIGERIA VS. POWER INDUSTRIAL ENGINEERING COY. LTD. (1990) 1 NWLR (PT. 129) P. 700. Counsel contended that all the above stated feature/factors are absent in the trial Court’s decision and the Court was functus officio to set aside its decision reached on 30th October, 2017. He reiterated that no matter the fundamental vice affecting a Court judgment or order reached on the merit, the only option open to the adverse party is to follow the due process of law to set aside same. Reference was made to DIAMOND BANK LTD. VS. NDUBUISI (2001) (PT. 105) P. 729, UGBA VS. SUSWAM (2013) ALL FWLR (PT. 695) P. 272. He submitted that the lower Court can expound its jurisdiction but not expand it, as the Appellant wanted the trial Court to do. He referred to DALFAM (NIG.) LTD. VS. OKAKU CHEMICALS INTERNATIONAL LTD (2002) FWLR (PT. 96) PG. 511.

Learned counsel maintained that the Appellants’ appeal has no foundation and likened it to placing something on nothing and expecting it to stand – UAC VS. MACFOY (1963) AC 153. He submitted that the lower Court rightly reached its decision of 23rd May, 2018 and that it lacked the jurisdiction to set aside its decision reached on 30th October 2017. He referred to MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341. He argued that the trial Court acted competently and within its jurisdiction by granting the 1st Respondent’s application and refusing the Appellants’ application. He referred to Order 4 Rule 28 (4), Order 8 Rule 11 of the Supreme Court Rules 1999 (as amended) and Order 4 Rule 10 and 11, Order 6 Rule 3 and 4 of the Court of Appeal Rules, and also the case of EZEOKAFOR VS. EZEILO (1999) 9 NWLR (PT. 616).

Counsel submitted as misconceived and erroneous, the argument that there was nothing before the lower Court before the granting of the 1st Respondent’s Motion on notice for stay of proceedings. He urged the Court to discountenance the Appellants’ argument/authorities cited/relied upon, in

their brief of argument. He urged the Court to dismiss this appeal and find in favour of the 2nd and 3rd Respondents and affirm the decision of the lower Court.

In his Reply brief to the 1st Respondent’s brief, learned counsel for the Appellants submitted that the Respondents misconceived the position of the law as to the argument that the Appellants ought to have filed an application to dismiss his appeal before the Supreme Court on the ground of non-diligent prosecution. He submitted that where a Court of law delivers a Ruling which is a nullity, arising from lack of jurisdiction, the lower Court which had no jurisdiction in the first place, to entertain and grant the 1st Respondent’s application for stay of proceedings while the Supreme Court was seised of the matter, that Court can set aside its Ruling. He referred to TOMTEC (NIG.) LTD. VS. FEDERAL HOUSING AUTHORITY (2010) 16 WRN P. 24 AT PP. 45-46.

Learned counsel further submitted that the 1st Respondent did not respond specifically to the argument canvassed in the Appellants’ brief of argument and is deemed to have conceded to same – UBN LTD. VS. ODUSOTE – BOOK STORES LTD.

(1995)9 NWLR (PT.421) P. 558 AT P. 576 PARAS. D-G AND UGBOAJA VS. SOWEMIMO (2018) 39 WRN 1 AT 15. He urged the Court to discountenance all the submissions contained in the 1st Respondent’s brief of argument, resolve the issue formulated in favour of the Appellant, allow the Appellants’ appeal and set aside the Ruling of the lower Court.

The Reply of the Appellants to the 2nd and 3rd Respondents’ brief, similarly indicated a misconception of the Appellants’ position that since the appeal had been entered at the Supreme Court, the trial Court should not have entertained the Motion of the Respondents herein, for stay of proceedings.

I shall consider the submission of the 2nd and 3rd Respondents on grounds 1, 3 and 4 of the grounds of appeal, where they attacked same as not emanating from the decision of the trial Court. I note that they did not file a Motion to strike out the grounds they alleged to be offensive, as they should have done. At any rate, they have conceded that the issue of the competence of a ground of appeal is an issue of jurisdiction which can be raised at any stage of the proceedings. Since that is

the position, why are they joining issue with the ground of appeal on jurisdiction? It does not follow logically from their concession. Furthermore, I have already held, that the grounds of appeal are competent grounds. The submissions of the 2nd and 3rd Respondents on them are discountenanced.

The simple issue in this appeal is whether the trial Court had jurisdiction to deliver its Ruling made on the 30th October, 2017 and whether also, it was functus officio in respect of the application by the Appellant, dated 26th February, 2018, to set aside its decision made on 30th October, 2017.

Order 8, Rule 11 of the Supreme Court Rules 1999 (as amended) provides –
“After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings between the parties thereto, and except as may be otherwise provided in the Order, every application therein shall be made to the Court and not the Court below, but any application may be filed in the Court below for transmission to the Court.”
This Order has received judicial interpretation. A very clear and apt decision on it is to be

found in EZEOKAFOR VS. EZEILO (1999) LPELR – 1209 (SC AT PAGES 9-10, Achike JSC in the leading Judgment held that –
“In simple language, it may be said that once that Court below transmits the Record of appeal to the Court that will hear the appeal, and the appellate Court in fact receives same, the appeal is said to be entered. See EZOMO VS. A.G. BENDEL STATE (1986) 4 NWLR (PT.36) 448…
What flows automatically from the appeal being entered is that the appellate Court which has now received the record of appeal is said to be seised of the whole of the proceedings in the sense that the res in the appeal shall also automatically pass into the custody of the said appellate Court seised of the whole proceedings…”
He then, in reference to the purposes of Order 8 Rule 11 of the Supreme Court Rules 1999 (as amended) held that:
“……there is no sharing of jurisdiction, over the res, the subject matter of the appeal, between the Court below (ie. transmitting the record of

appeal) and the appellate Court now seised of the appeal (i.e. the Court receiving the transmitted record of appeal).”
Coming to the appeal at hand, it is common ground and supported by evidence, that the appeal of the Respondents in SC/409/2017 was entered in the Supreme Court on 10th May, 2017, as that is the date the Record of appeal was compiled and transmitted to the Supreme Court. See pages 53 -54 of the record containing the counter-affidavit of the 1st Respondent. In EZEOKAFOR VS. EZEILO (SUPRA), the Court of Appeal had refused to consider an application for injunction made by the Appellant whilst the appeal had been entered at the Supreme Court. It was held by the Supreme Court that:
“I respectfully agree with the Court of Appeal that it was correct to decline to entertain the application for injunction since the appeal against the Ruling of the Court below had been entered at the Supreme Court.”

When the Court declined to entertain the application for Injunction, it did so on the basis that it had no jurisdiction to entertain it as the appeal had already been entered at the Supreme Court. Issue of jurisdiction is

fundamental and crucial in the adjudicatory process of any Court. This is so because once there is no jurisdiction, the proceedings thereto, would be a nullity and will be set aside. This can be done by an appellate Court or even the Court which lacked the jurisdiction in the matter. It can do so suo motu. In NWEKE VS. F.R.N (2019) 3 SCNJ (PT. 1) 75 AT 96, the Supreme Court held that “The law is trite that jurisdiction is a threshold issue. Where a Court has no jurisdiction to hear a matter and it proceeds to hear the matter, the decision arrived at, no matter how brilliantly conducted and delivered, is a nullity…..can be raised, at any stage of the proceedings on appeal or even for the first time in the Supreme Court. See NURTW & ANOR. VS. RTEAN & ORS. (2012) 10 NWLR (PT. 1307) 170, (2012) LPELR – 7840 (SC); USMAN DAN FODIO UNIVERSITY VS. KRAUS THOMPSON ORGANISATION LTD. (2001) 15 NWLR (PT.736) 305; ONYEMEH & OR. VS. EGBUCHULAM & ORS. (1996) 5 NWLR (PT. 448) 255.”
As stated above, a party may appeal against the decision made by the Court without jurisdiction, or he may apply to the Court to set aside its null

decision. It is his choice. In EZEOKAFOR VS. EZEILO (SUPRA) at pages 22-23, the Supreme Court held following the consideration of Order 8 Rule 11 of the Supreme Court Rules 1999, that:
“There is no gain saying the fact that where an Order of Court is invalid in the sense that it is so irregularly obtained that it is rendered a nullity, or void, the Court suo motu has inherent jurisdiction to set aside such an Order. Similarly, the party affected by such order can take necessary steps by motion and not necessarily by way of an appeal, to set aside such order that is invalid on the ground that it is a nullity….”
Once, a party can file a motion to set aside the null Order, that Motion can never amount to an abuse of process.
In the instant appeal, as at the 30th May, 2017 when the trial Court delivered its Ruling, the appeal had already been entered at the Supreme Court, as the record had been transmitted there on 10th May, 2017. The trial Court clearly had no jurisdiction to entertain the application of the Respondent, talk less of granting it. That decision therefore was a nullity. The Appellant herein had the option, which he

clearly pursued, to file a Motion to set it aside on the ground that the Order was a nullity. He filed the Motion dated 26th February, 2018 which the trial Court dismissed on the grounds that it had no jurisdiction to entertain it and that it is an abuse of the Court process! To me, these smacks of double speaking. If it had no jurisdiction to entertain the Motion dated 26th February, 2018 because “the appeal is still pending i.e. was not struck out or dismissed before the Supreme Court, this Hon. Court has no jurisdiction to entertain this matter….” then how did it have jurisdiction to entertain the Motion and granted the prayer on 30th October, 2017 in favour of the Respondents herein, when the appeal had already been entered at the Supreme Court as of then? It was clearly a selective decision. The Appellant had the option to file a Motion praying the trial Court to set aside its decision. The trial Court had the duty to consider the application and it had the jurisdiction (as stated before) to set aside the null decision. It was a gross error to select one application and refuse another, under the guise of lack of jurisdiction or abuse of

Court process. It was not functus officio in that regard. The application was also not an abuse of process. The lone issue for determination is thus resolved in favour of the Appellant and against the Respondents.

Consequently, this appeal has merit, and it is allowed. I set aside the Ruling of the trial Court delivered on 23rd May 2018, which struck out the Motion dated 6th February, 2018 filed by the Appellants. Consequently, I also set aside the Order made by the trial Court on 30th May, 2017, staying the proceedings before it. I do not find it appropriate to determine the Originating Summons or to send it to the Supreme Court.
N100,000 costs to the Appellants against all the Respondents.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.

This appeal turns on the effect of entry of appeal in an appellate Court on the jurisdiction of the lower Court to entertain

applications, including an application for stay of proceedings, on the subject matter of the appeal. The answer to this query was beautifully summed up by this Court in the case of In Re: Honorable President of the Court of Appeal, Abuja (2003) LPELR 7225(CA) thus:
“Jurisdiction is so fundamental and vital that anything done by the Court without jurisdiction would be a nullity no matter how well the proceedings were conducted. It has been contended that this Court lacks the jurisdiction to entertain the application because the appeal has been entered at the Supreme Court. Order 8 Rule 11 of the Supreme Court Rules provides:
‘After an appeal has been entered and until it been finally disposed of the Court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in this Order, every application therein shall made to Court and not to the Court below, but any application may be filed in the for transmission to the Court.”
It is now settled law that where an appeal has been entered in appellate Court, the lower Court from which the appeal emanated will cease to have

jurisdiction, See: Ezomo vs Attorney (1986) 4 NWLR (Pt 36) 448. In Biocon Agrochemicals (Nig.) Ltd vs Kudu Holdings (Pty) Ltd (1996) 3 NWLR (Pt 437) 373, the Supreme Court stated at page 380 per Kutigi, JSC that:
“I must also add the true position here now is this Court has already received the record of appeal compiled by the appellants/applicants and the appeal having been entered in the Cause List; any application thereof including application for Stay of proceedings should be made direct to this Court.”
The Supreme Court in Ezeokafor Vs Ezeilo (1999) 6 SC (Part II) I construed effect of Order 8 Rule 11 and held at page 6 that:
“….it may be said that once the Court below transmits the Record of Appeal to the Court that will hear the appeal and the appellate Court in fact receives the same, the appeal is said to be entered. See Ezomo V A.G. Bendel State… Ogunremi vs Dada (1962) 2 (PL4) 663 and Adewoyin vs Adeyeye (1962) 2 NLR (pt. 1) 108. What flows automatically from the appeal being entered is that the appellate Court which had now received the record of appeal is said to be seised of the whole in the sense that the res in the

appeal automatically pass into the custody of the said appellate Court seised of the whole proceedings. For avoidance of doubt, it is important to note that for the purposes of Rule 11 of Order 8 under reference there is no sharing of jurisdiction, over the res, the subject matter of the appeal, between the Court below (I.e. transmitting the record of appeal) and the appellate Court now seised of the appeal (i.e. the Court receiving the transmitted record of appeal).”
…It could be seen from the above authorities that the moment the appeal is entered in the Supreme Court, it becomes seised of the whole proceedings and the Court of Appeal ceases to have jurisdiction over the matter. In our present case, the appeal has not only been entered in the Supreme Court, in fact the appeal has been fixed for hearing. The appeal is to be heard on 23rd October, 2003 i.e. in six days time from today and all the parties have acknowledged that they have been served with the hearing notices.
The learned Senior Advocate for the applicant contended that since the application was filed before the record of appeal was transmitted to the Supreme Court and as such this Court has

jurisdiction to entertain the matter. I am afraid that this is not the position of the law. This Court has jurisdiction to entertain the matter only where the appeal has not been entered in the Supreme Court. This Court has no jurisdiction to entertain the matter where appeal has been entered in the Supreme Court, even though when the application was filed, the matter has not been entered in the Supreme Court. The determining issue is not when the application is filed but when it is heard.
In the circumstance, I hold that this Court has no jurisdiction to entertain and determine the application. The appeal has been entered in the Supreme Court and it is seised of the whole proceedings. Only the Supreme Court to the exclusion of all other Courts can entertain any application in this matter. No other Court can touch the matter.”
Therefore, after the appeal against the judgment of this Court in Appeal No. CA/K/346/2014, and which affirmed the decision of the lower Court upholding its jurisdiction to entertain the suit of the Appellants, had been entered in the Supreme Court as Appeal No SC/409/2017 on the 10th of May, 2017, this Court and the lower Court ceased

to have jurisdiction to entertain any application, including an application for stay of proceedings, pertaining to the subject matter of the appeal. Thus, when the lower Court heard and granted the application for stay of proceedings filed by the Respondent dated the 23rd of May, 2017 on the 30th of October, 2017, on the basis of the appeal pending in the Supreme Court, it had no jurisdiction to do so. The order of stay of proceedings granted was a nullity.

It is settled law that where it is shown that the decision reached in the judgment or order is a nullity because it was made without jurisdiction, the decision can be set aside by this same Court that entered the judgment or made the order, under its inherent jurisdiction -Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, Onwuka vs Maduka (2002) 18 NWLR (Pt 799) 586, Witt & Busch Ltd vs Dale power Systems Plc (2007) 17 NWLR (Pt. 1062) 1, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1, Ene vs Asikpo (2010) 10 NWLR (Pt 1203) 477, First Bank of Nigeria Plc vs Industries Ltd (2010) 15 NWLR (Pt 1216) 247, Dingyadi vs INEC (No. 1) (2010) 18 NWLR

(Pt 1224) 1, Ede vs Mba (2011) 18 NWLR (Pt. 1278) 236, Adeyemi-Bero Vs Lagos State Property Development Corporation (2013) 8 (Pt 2356) 238.
The lower Court thus had jurisdiction to entertain the application of the Appellants filed before it dated the 26th of February, 2018 praying it to set aside the order of stay of proceedings it made on 30th of October, 2017. The lower Court was clearly in error when it declined to entertain the application on the basis that it had no jurisdiction to hear it and dismissed same as an abuse of process.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in this appeal and I hereby allow same. I set aside the decision contained in the Ruling of the High Court of Kano State delivered in Suit No K/101/2013 delivered by Honorable Justice Ibrahim Musa Karaye on the 23rd of May, 2018. I abide by the consequential orders made in the lead judgment.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment of my learned brother, Abubakar Datti Yahaya. He has quite aptly considered the issues in this appeal. I agree entirely with him that there is merit in this appeal.

I adopt his reasons as mine in allowing the appeal and abide by the consequential order therein.

Appearances:

Morgans C. Omereonye, with him, Nneka Omoke and Leonard Igwe For Appellant(s)