FIRST BANK OF NIGERIA PLC v. T.S.A. INDUSTRIES (NIGERIA) LIMITED (2012)

FIRST BANK OF NIGERIA PLC v. T.S.A. INDUSTRIES (NIGERIA) LIMITED

(2012)LCN/5525(CA)

In The Court of Appeal of Nigeria

On Monday, the 4th day of June, 2012

CA/L/200/2001

RATIO

PROCEEDINGS: ESSENCE OF AN ORDER OF STAY OF PROCEEDINGS

An order of stay of proceedings is made to suspend proceedings in the suit pending the outcome of an appeal against a ruling or a point made during the proceedings. The circumstance under which the Court will grant a stay of proceedings is discretionary and will depend on the facts of the case.

The discretion may be exercised whether the res is tangible or intangible and must be exercised judicially and judiciously. In Nika Fishing Co. Ltd v. Lavina Corp. (2003) 15 NWLR Pt. 1114 Pg. 509 at Pg. 540, where Tobi JSC had this to say on stay of proceedings:

“Stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation in the trial on the basis of the merits of his case, Consequently, the Court’s general practise is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

PROCEEDINGS: PRINCIPLES GUIDING THE GRANT OR REFUSAL OF STAY OF PROCEEDINGS

The principles for the grant or refusal of stay of proceedings have over time been established in many Supreme Court Cases as follows:

There must be a pending appeal
The applicant must show that if the appeal succeeds, the success will not be in vain;
That in the circumstances of the case, a refusal to stay proceedings would be unjust and inequitable;
That the res of the matter would be destroyed and the judgment of the Court rendered nugatory if the application is refused
That there exists special and exceptional circumstances justifying the grant of the application, for example, where the notice and grounds of appeal raise substantial issues as to the jurisdiction of the lower Court. In United Spinners Nigeria Ltd v. Chartered Bank Limited (2001) 7 S.C. (Pt. 11) 171; (2001) All NLR 598; (2001) 7 SCNJ 204 at Pg.216-217, Uwais CJN stated as follows:

“Now, the Court below has the inherent power to stay proceedings pending appeal in order that the res may be preserved. The power, which is indeed discretionary must be exercised judicially and judiciously See Shodeinde v. The Trustees of Ahmadiyya Movement-in-Islam (1981) 1-2 SC 153 and Kigo (Nig.) Ltd v. Holman Bros (Nig.) Ltd (1980) 5-7 SC 60. Res means a thing or things, or an object or objects. The question is: what is the res in the present case to be preserved?…In Akilu v. Fawehinmi (No.2) (1980) 2 NWLR Pt. 102 Pg. 122 at 188, I stated as follows: –

Some of the considerations which the Courts bring to bear on any application for stay of proceedings pending appeal are that the burden is on the applicant for stay of proceedings to show that if the appeal should succeed, the success would not be in vain. Also that in the peculiar circumstances of the case, a refusal of stay of proceedings would not be unjust and unequitable. See Jadesimi v. Okotie-Eboh (1986) 7 NWLR Pt. 16 pg. 264; Obeya Memorial Specialist Hospital & Anor. V. A-G of the Federation & Anor., (1987) 3 NWLR Pt, 60 pg, 325 and Okafor v. Nnaife (1987) 4 NWLR Pt. 64 pg. 128.”

Also, in Dingyadi v. INEC No. 1 (2010) 18 NWLR Pt. 1224 Pg. 1at Pg. 97, I.T. Muhammad JSC stated as follows:

‘The law is well settled that there must be a valid appeal pending in Court before an application for stay of proceedings pending determination of an appeal can be considered by taking into consideration the substance of the grounds of appeal contained in the notice of appeal.

Where the appeal is frivolous or oppressive, the application will be refused…It is also the law that such application for stay of proceedings pending appeal can only be granted where special and exceptional circumstances exist. See Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR Pt.102 Pg. 122. Stay of proceedings pending appeal may also be granted where preserving the RES or subject matter of the appeal is the basis of the application to avoid a situation if the appeal succeeds it will not be rendered nugatory. see Kigo (Nig.) Ltd v. Holman Bros (Nig.) Ltd. (198)1 5-7 SC 60

It is also well settled that the appellate Court, in the determination of the application for grant of stay of proceedings, should not delve into the merits of the case as this can be prejudicial to the Applicant’s case at the lower Court. All the appellate Court has to do is to determine whether the res i.e. the subject matter of the case will be preserved if the application is granted and whether it would be destroyed thereby rendering the decision on appeal nugatory if the application is refused. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

JUDICIAL PRECEDENT: RULE OF PRECEDENT

Under the doctrine of precedent, decisions of Superior Courts are binding on inferior Courts. In the hierarchy of Courts, the decisions of the Supreme Court is binding on all other Courts. NIKI TOBI, JSC (as he then was) stated so very emphatically in SULEIMAN VS. COP (2008) 162 LRCN 155 at 188, par. P. U.

The apex Court had ordered. We must bow, no matter how any judicial officer or counsel, nay litigant may feel about it. That is the ultimate law. Unless the Supreme Court orders otherwise in an appropriate situation, this Court cannot overrule the Supreme Court by disobeying or circumventing the order. Even if the Supreme Court errs, it is the ultimate, and after all as OPUTA JSC stated in one case “for the certainty of the law and prevention of anarchy, the decisions of the apex Court must be obeyed. It cannot be questioned not because they are in fallible, but they are infallible because it is the last and ultimate Court. It may in a deserving situation overrule itself or reconsider its position. It is not for any inferior Court to do it”. To so do, to purport to do would amount to what NIKI TOBI JSC called in SULEIMAN VS. COP (Supra) (though stating that he did not want to say that it was) “Judicial impertinence and arrogance.”

It will be a pity if we do depart from obeying the specific order of a hearing on the merit as ordered when the application is not made on an account of an event to be carried out before us and/by us in, the cause of a hearing. To accede to the prayers of the Applicant would mean that this Court is apparently moved by the desperation of the Applicants as shown without success or fruition at the Supreme Court. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

ACTION: WHETHER THE LAW ALLOWS SENTIMENTS

The law goes against sentiments. This, as stated by NIKI TOBI JSC in SULEIMAN VS. COP (Supra) is not available to judges.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

FIRST BANK OF NIGERIA PLC – Appellant(s)

AND

T.S.A. INDUSTRIES (NIGERIA) LIMITED – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Lead Ruling): This is an application dated 4/7/11 filed the same day before this Court in which the Respondent/Applicant is seeking stay of proceedings in this matter pending the hearing and determination of the Respondent/Applicant’s Motion on Notice dated and filed on 5th May, 2011 at the Supreme Court.

In a unanimous judgment delivered in SC/316/2006 on 9th July, 2010 (Applicant’s Exhibit TS/12A), the Supreme Court of Nigeria at page 49 of the judgment issued the following final orders:

(a) The preliminary objection is over-ruled

(b) The appeal succeeds and it is allowed

(c) The appeal is to be remitted back to the Court of Appeal, Lagos to be re-listed and heard before another panel of justices of the Court of Appeal

(d)The order of dismissal of the appeal made on the 26th of September 2005 is set aside

(e) The order in the Ruling of 11/12/06 is set aside

In grounds (10) – (15) in support of this application, the Respondent/Applicant is seeking to stop the Court of Appeal from giving effect to the order of the Supreme Court directing the re-listing and hearing on the merit by this Court of the Appellant’s appeal because:

(10) The Respondent/Applicant filed a Motion on Notice dated 15th July 2010 at the Supreme Court under SC/316/2006 seeking to set aside the said Judgment of the Supreme Court on grounds of jurisdiction.

(11) The said Motion on Notice dated 15th July 2010 was struck out by the Supreme Court on 3rd May, 2011 for non-appearance of Respondent/Applicants counsel.

(12) The Respondent/Applicant has promptly filed another Motion on Notice dated 5th May 2011 at the Supreme Court seeking the Court to set aside its said Judgment in SC/316/2006 on grounds of jurisdiction.

(13) The outcome of the Respondent/Applicant’s Motion on Notice dated 5th May 2011 pending at the Supreme Court will have a great impact on this appeal.

(14) The respondent/Applicant has a right to be heard at the Supreme Court in respect of its Motion on Notice dated 5th May, 2011.

(15) The jurisdiction of the Supreme Court in exercising its appellate jurisdiction over a final decision of the Court of Appeal which was not on appeal before it is being raised in the Respondent/Applicant Motion on Notice dated 5th May, 2011 at the Supreme Court.

On 19/3/12, one Azeez Abiodun filed a further and better affidavit. Paragraph 3 of the said affidavit is set out below:

“3. I am informed by Miss Rebecca Tanga of counsel in Chambers at No. 20, Idowu Martins Street, Off Adeola Odeku street, Victoria Island, Lagos on 6th day of March, 2012 at about 2.00 p.m. and I verily believe her as follows: –

(a) That, the Respondent/Applicant reiterates its depositions in its Affidavit in Support of its Motion on Notice dated and filed on 4th July, 2011, and its depositions in its Further Affidavit dated and filed on 16th November, 2011.

(b) That, when this matter cam up for hearing on the 12th day of December, 2011 in this Honourable Court, the Court ordered parties to file Written Addresses in respect of this application dated 4th July, 2011.

(c) That, in the said application dated 4th July 2011 Exhibit ST/13 (a Motion on Notice dated 5th May, 2011 filed at the Supreme Court) was inadvertently omitted at the time of filing, but was duly placed before this Honourable Court through the said Further Affidavit dated and filed on 15th November, 2011.

(d) That, on the said 12th December, 2011 when she informed this Court of Exhibit ST/13 pending at the Supreme Court, due to several processes involved in this matter at the Court of Appeal and the Supreme Court respectively, she inadvertently did not inform this Honourable Court that a similar Motion on Notice dated 16th November, 2011 as in the said Exhibit ST/13 had been filed at the Supreme Court by the Respondent/Applicant herein. The said motion on Notice (without the Exhibits attached) is herewith attached and marked Exhibit ST/16

(e) That, the Appellant/Respondent has joined issues with the Respondent/Applicant in respect of Exhibit ST/16.

Attached herewith and marked Exhibit ST/17 is the Appellant/Respondents counter Affidavit filed on 30th January 2012 at the Supreme Court respect of Exhibit ST/16

(f) That at the Supreme Court on 5th May 2012 the said Exhibit ST/13 was withdrawn and struck out and the Respondent/Applicant’s counsel relied on and argued Exhibit srlr6 dated and filed on 16th November, 2011 and adopted its Brief of Argument in support dated and filed on 16th February 2012. The certified true copy of the Ruling of the Supreme Court on 5th March, 2012 striking out Exhibit ST/13 has been applied for and same shall be forwarded to this Court as soon as same is obtained

(g) That, at the Supreme Court on the said 5th March, 2012 after the Respondent/Applicant’s Counsel had argued Exhibit ST/15 and adopted the said Brief of Argument in support and after counsel for the Appellant/Respondent was midway into responding to said Exhibit ST/16, the Supreme Court granted him an unsolicited adjournment which will enable him repair his processes filed in Court.

(h) That, the respondent/Applicant has filed a Motion on Notice dated 8th March, 2012 at the Supreme Court seeking among other prayers, for the Supreme Court to set aside the said unsolicited adjournment granted after its counsel had concluded arguments on Exhibit ST/16 and adopted the Brief of Argument in support and after the Appellant/Respondent’s counsel had commenced his response to same, on grounds of overreaching and fair hearing. The said Motion on Notice is attached herewith as Exhibit ST/18

(i) That, she knows as a fact and reiterated that, there are serious issues of law on the exercise of the Appellate jurisdiction of the Supreme Court in setting aside a final decision of the Court of Appeal which was not appealed against to the Supreme Court, pending at the Supreme Court between the parties herein in respect of Exhibit 002 attached to the Appellant/Respondent’s Motion on Notice dated 21st September, 2010 filed this Honourable Court

(i) That, the Appellant/Respondent’s said Exhibit 002 is the same as the Respondent/Applicant’s Exhibit ST/12 attached to this application

(k) That, she knows as a fact that this Honourable Court and the Supreme Court cannot be adjudicating over the said Exhibits 002 or ST/12 at the same time

(l) That, Exhibit ST/16 herein has been argued and the Brief of Argument in support has been adopted at the Supreme Court on 5th March, 2012, and the matter was adjourned to 15th March, 2012 for Further Arguments

(m) That, on 15th March, 2012 the Supreme Court refused to hear counsel, in respect of Exhibit ST/18 attached herein, and conducted its proceedings despite Counsel’s protests

(n) That, on the said 15th March, 2012 at the Supreme Court, Appellant/Respondent herein concluded

its Arguments in response to Exhibit ST/16 attached herein, and the matter was adjourned for Ruling.

(o) That, no date was given by the Supreme Court for its Ruling in respect of Exhibit ST/10.

(p) That, she knows as a fact that it is necessary for this Honourable Court to stay all further proceedings in this matter and await the outcome or decision of the Supreme Court in respect of Exhibit ST/16 (which raises some fundamental issues in respect if the said Exhibits 002 or ST/12), and which has already been argued at the Supreme Court in order not to foist a fait accompli on the Supreme Court.”

The Appellants/Respondents filed a counter affidavit on 5/7/11 to this motion wherein one Olufunmilayo Jimoh deposed as follow in paragraph 3 – 5:

“3. The Applicant’s alleged motion of 5th May, 2011 at the Supreme Court is a repeat of an earlier motion dated 15th July, 2010 by the same Applicant and to the effect, which the Supreme Court struck out on the 3rd of May, 2011. An enrolled copy of the order is herewith attached and marked “Exhibit OOA”.

4. Subsequently, the Applicant filed a motion dated 9th June, 2011 praying the Supreme Court to, inter alia, set aside the aforesaid ruling of 3rd May, 2011. Attached herewith and marked “Exhibit OOB” is a copy of Applicant’s said Application. The said motion to set aside has not been heard or granted by the Supreme Court.

5. Since the 9th day of July 2010 when the Supreme Court delivered its judgment directing the Court of Appeal to hear the Appellant’s appeal on the merit, the Respondent has resorted to filing application after application weighing several tons, at this Court and also at the Supreme Court, all with a view to preventing the Court of Appeal from giving effect to order of the Supreme Court.

This application for stay of proceedings is one in the series of such frivolous applications.”

On the 18th day of October 2011, the Supreme Court had delivered a ruling on the application by the present applicants to set aside the ruling of the Supreme Court of 3/5/11. The Ruling is shown in Exhibit ST/15 of Azeez Biodun’s deposition. In the said ruling, which was unanimous, the Supreme Court held:

“The application for withdrawal of the motion on notice is hereby refused. The application has already been moved (i.e. application for setting aside the ruling and proceedings of 3/5/2011 and costs etc). We have perused the affidavit in support of the motion and we find the depositions untenable, even from our own previous records. On 11/4/2011 when the application came up for hearing, the learned SAN was in Court and the matter was adjourned to 3/5/2011. On 3/5/2011 neither he nor any counsel from his chambers was present, so the application was struck out. There was in fact no need for service of hearing notice on the applicant, since its counsel was present during the adjournment. In the circumstances, the issue of non-service or late service of a hearing notice of 3/5/2011 does not arise. In this vein the application is dismissed, with N30,000 costs to the respondent.”

It is the same application to set aside the order of the Supreme Court in its judgment of 9th July 2010 directing this Court to relist and hear Appellant/Respondent’s appeal on the merit which was struck out by the Supreme Court on 3rd May 2011; and it is the same application which the Supreme Court effectively refused to relist by its ruling of 18th October, 2011 (Applicant’s Exhibit ST/15), that the Respondent/Applicant say is pending before the Supreme Court and using as basis of its application for stay of proceedings in this Court.

Respondent/Applicant’s written address was dated 16th of December 2011 and filed on the same day. Applicant’s reply dated 19th of March 2012 was also filed the same day. Appellant/Respondent’s written address was dated and filed on the 5th of January 2012.

Counsel to the Respondent/Applicant identified a sole issue for determination as follows:

“Whether in the circumstances of this case, on the grounds for bringing this application, the facts and Exhibits placed before this Honourable Court in this application, the Respondent/Applicant is entitled to an Order staying all further proceedings in this matter pending the determination of Exhibit ST/13 at the Supreme Court.”

On the other hand, counsel to the Appellant/Respondent identified two issues for determination as follows:

(a) Is the Application competent and/or has the Court of Appeal the jurisdiction to stay a judgement of the Supreme Court?

(b) If the Application is competent and the Court of Appeal has the jurisdiction to stay a judgment of the Supreme Court, then, has the Respondent/Applicant made out a proper or just case for stay of proceedings?

The Respondent/Applicant’s sole issue is in tandem with the Appellant/Respondent’s second issue and will be treated as such. The issues for determination therefore are as follows:

1. Whether or not the Court of Appeal has the jurisdiction to stay execution of the judgment of the Supreme Court

2. Whether or not the Respondent/Applicant is entitled to the order sought.

ISSUE ONE

This issue was raised by the Appellant/Respondent in its written submission against the Respondent/Applicants’ motion on notice dated 4th of July, 2011. Counsel to the Appellant/Respondent argued that the said application was not brought in compliance with Order 7 Rule 1 of the Court of Appeal Rules 2011 which requires inter alia that every application shall state the rule under which it is brought. Counsel pointed out that the application was brought under this same Order 7 Rule 1 and Section 35(1) of the 1999 Constitution. Counsel argued that these provisions are irrelevant to the establishment of the competence of the application as they have nothing to do with the application to stay the judgment of the Supreme Court.

Counsel further argued that the Supreme Court being the apex Court in Nigeria, the Court of Appeal’s superior and supervisory powers extend only to the decisions of Courts that are subordinate to it. Counsel claimed that since the Supreme Court had specifically ordered the Court of Appeal to relist and hear the Appellant’s appeal on the merit, the order is inexorably binding on this Court and as such proceedings cannot be stayed by this Court. In the Respondent/Applicant’s reply to the Appellant/Respondent’s written address, counsel to the Respondent/Applicant pointed out that it was not the judgment of the Supreme Court that its application seeks to stay, but the proceedings of this Court in respect of the appeal pending the determination of the application before the Supreme Court dated 5th of May, 2011. Counsel argued that in effect, the application for stay of proceedings dated 4th of July 2011 is not asking this Court to disobey the judgment of the Supreme Court.

In the first instance, I agree with the learned Respondent/Applicant’s counsel’s view that it is elementary that the Court of Appeal Rules 2011 is the only set of Rules governing the practice and procedure of the Court, and by virtue of Order 7 Rule 1, a party seeking to approach the Court with any application is mandated to do so by a motion on notice supported by Affidavit and shall state the Rule under which it is brought and the ground for the relief sought. Thus, an application as the present one falls under Order 7 Rule 1 of the Court of Appeal Rules, 2011. In fact, Section 36(1) of the 1999 Constitution is a general provision for bringing any application and it is not unconstitutional to invoke it in any matter before the Courts. In the circumstances of this case, I am of the firm view that in essence, what the Applicant is asking this Court to do is stay execution of the judgment of the Supreme Court by refusing to relist the appeal for hearing in this Court. I do not think this Court has power so to do. Until the Supreme Court sets aside its previous decision, this Court is bound by it and must give effect to it. It will be the height of judicial rascality to ignore orders made by the Supreme Court and to refuse to execute same. On that point, I would say that the Court of Appeal has no power to stay execution of the Judgment of the Supreme Court by whatever guise. In fact it is my firm view that it is only the Supreme Court that can stay proceedings of the Court of Appeal. That issue is resolved in favour of the Appellant/Respondent.

ISSUE TWO

The Respondent/Applicant has prayed this Court to grant an order to stay proceedings in this matter pending a determination of a motion on notice filed on the 5th of May 2011 at the Supreme Court on several grounds and has relied in particular on grounds 10 – 15 which had already been set out above. In paragraph 4.2 (g) – (j) of the Respondent/Applicant’s written address filed on 16/12/11, the Applicant argued as follows:

“(g) That the said Motion on Notice dated 5th May, 2011 pending at the Supreme Court (Exhibit ST/13) raises substantial and genuine issue of jurisdiction necessitating a stay of all further proceedings in this matter before this honourable Court (paragraph 4(e);

(h) That the fundamental nature of the said Motion on Notice pending at the Supreme Court makes a proper case to stay all further proceedings in this matter in this Honourable Court until the issues raised in the said Motion on Notice are determined at the Supreme Court (paragraph 4(f);

(i) That the Respondent/Applicant’s right to be given fair hearing at the Supreme Court in respect of the issues raised in the said Motion on Notice will be greatly affected if all further proceedings in this matter are not stayed in this Honourable Court (paragraph 4(e);

(j) That the Appellant will not be prejudicial (sic) by the grant of this application as its right to respond to the facts contained in the Affidavit in Support is not closed and it has been served vie Exhibit ST/14 with the said Motion on Notice dated 5th May, 2011, (paragraph 4(h), we most respectfully submit that, the interest if justice will be better served if this Honourable Court grants this application in Order not to foist a fait accompli on the Supreme Court, and not to deprive the Respondent/Applicant the right to be heard at the Supreme Court on the grounds and facts raised in this application which have not been denied by the Appellant.”

Counsel to the Appellant/Respondent on the other hand contended that stay of proceedings or execution is an equitable remedy and therefore is not granted at the mere asking. Counsel submitted that Applicant has the onus of showing special and exceptional circumstances entitling it to the relief. Counsel cited Diamond Bank Ltd v. P.I. Co. Ltd. (1996) 8 NWLR Pt. 469 Pg. 687; Olunloyo v. Adeniran (2001) 14 NWLR Pt. 734 Pg. 599; Momah v. VAB Petroleum Inc. (2000) 4 NWLR Pt. 654 Pg. 534. Counsel then submitted that the Respondent/Applicant has not shown any special or exceptional circumstances which entitles it to the order sought.

Let us consider the rules as it pertains to the grant of an Order of Stay of Proceedings. An order of stay of proceedings is made to suspend proceedings in the suit pending the outcome of an appeal against a ruling or a point made during the proceedings.The circumstance under which the Court will grant a stay of proceedings is discretionary and will depend on the facts of the case.

The principles for the grant or refusal of stay of proceedings have over time been established in many Supreme Court Cases as follows:

1. There must be a pending appeal

2. The applicant must show that if the appeal succeeds, the success will not be in vain;

3. That in the circumstances of the case, a refusal to stay proceedings would be unjust and inequitable;

4. That the res of the matter would be destroyed and the judgment of the Court rendered nugatory if the application is refused

5. That there exists special and exceptional circumstances justifying the grant of the application, for example, where the notice and grounds of appeal raise substantial issues as to the jurisdiction of the lower Court. In United Spinners Nigeria Ltd v. Chartered Bank Limited (2001) 7 S.C. (Pt. 11) 171; (2001) All NLR 598; (2001) 7 SCNJ 204 at Pg.216-217, Uwais CJN stated as follows:

Also, in Dingyadi v. INEC No. 1 (2010) 18 NWLR Pt. 1224 Pg. 1at Pg. 97, I.T. Muhammad JSC stated as follows:

Counsel to the Respondent/Applicant went to town in the brief settled by him in discussing the merits of the application pending before the Supreme Court but refused to address the issues pertaining to a grant of Order for Stay of Proceedings which is the main point in its application dated 4th of July, the subject of this Ruling.

I am of the view that in the circumstances of this case, the Applicant has not shown how the res will be lost if this application is not granted. The res in this instance, is the appeal that the Supreme Court has ordered should be relisted and heard by this Court. The question of foisting a fait accompli on the Supreme Court by relisting the appeal does not arise. If the Supreme Court sets aside its order mandating the relisting of the appeal on the merit, then the Court of appeal will stay further proceedings. After all the appeal being listed in this Court as ordered does not mean it would be heard the next day. The grounds and affidavit in support of the application do not show any exceptional circumstances to warrant a stay of proceedings. I am aware that the argument may be raised as to why stay should not be granted until such time as the applicant would have exhausted all the opportunities available at the Supreme Court. However in the peculiar circumstances of this case, where is the justice in allowing the applicant to use the judicial process to frustrate orders made by the very institution it relies on? Wherein lies the justice in allowing the applicant to continue to indulge in all sorts of antics to frustrate the judicial process? This application is totally frivolous and must be dismissed. It is hereby dismissed. I award N50,000 costs to the Respondent against the Applicant.

RITA NOSAKHARE PEMU, J.C.A.: I was privilege to read before now, in draft the ruling of my brother H.M. OGUNWUMIJU J.C.A. I am in total agreement with her opinion and conclusion.

She has painstakingly and exhaustively dealt with the issues that arose for determination and indeed addressed them.

I have nothing more to add, than to observe that an invitation to do anything that may frustrate orders made by a Superior Court of record is inviting anarchy in the judicial realm. Ipso facto, the Courts do not entertain acts calculated to frustrate the judicial process.

There is no gainsaying that the “Res” in this instant case is the appeal that the Supreme Court has ordered should be relisted, and heard, by this Court. If the Apex Court sets aside that order, (which it did not) there is nothing upon which this application should stand.

The application is devoid of any exceptional circumstances, and grounds to necessitate the wielding of the discretionary power of this Court.

The application is not only frivolous, but fraught with mischief, and indeed vexatious.

I dismiss same.

I abide by the consequential order made that the Respondent is entitled to costs assessed at N50,000.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been privilege to read in advance the draft of the lead Ruling just rendered by my lord OGUNWUMIJU, JCA, and I agree that the appeal has no scintilla of merit and should fail.

The apex Court of Nigeria had delivered a Judgment to the effect that

(a) The preliminary objection of the Appellant then before her in appeal No. SC/316/2006 is overruled

(b) The appeal succeeds and it is allowed.

(c) The appeal is to be remitted back to the Court of appeal Lagos to be relisted and heard before another panel of the Justices of the Court of Appeal.

(d)The order of dismissal of the appeal made on the 26th day of September, 2005 is set aside.

(e) Order in the Ruling of 11/12/06 is set aside.”

These were the terse terms of the judgment of 9th July 2010 annexed by the Applicants as Exhibit TS/I2 A. They are final orders in respect of the matter now before this Court. The Respondent/Applicant’s motion of 15th July, 2010 at the Supreme Court urging it to set aside its aforequoted Judgment and orders was struck out for non appearance and was refiled on 5th May, 2011.

Appellant/Applicant’s counsel has urged this Court to stay further proceedings pending the determination of its refiled motion at the Supreme Court which seeks that the said Judgment be set aside for want of jurisdiction by the Supreme Court.

It should be noted that the motion to set aside had been struck out by the Supreme Court and an application to relist had been refused by a Ruling delivered on 18th October, 2011.

The Appellant/Applicant wants this Court to unwind all that the Supreme Court has done by staying proceedings to allow the Supreme Court determine matters, the motion of which it had struck out and emphatically refused to relist and thus leaving as extant its earlier Judgment directing this Court to relist the appeal for hearing before another panel.

To act to the contrary, would amount to this Court acting in violation of the constitutional imprimatur stipulated by sections 233, 287(1) and section 1(1) of the 1999 constitution that this Court, just as all other Courts are bound by the decisions of the Supreme Court and under a duty to execute same.

Section 287(1) of the 1999 constitution provides as follows:-

“The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Supreme.” The Court of Appeal is subordinate to the Supreme Court. By section 1(1) of the constitution, all are bound by the constitution. Can this Court make an order when it has no jurisdiction so to do? Can this Court compel the Supreme Court to hear any application filed by the Applicant (if any pending)? Can it make an order it cannot supervise or enforce?

The learned counsel for the Applicant had sought to show that there was an appeal pending at the Supreme Court. I do not think so. That appeal had been determined and allowed and the matter remitted to this Court for trial denovo before a differently constituted panel of Justices.

The application for stay is not predicated on the desire to take certain steps before this Court pending the hearing of the appeal, relisted as ordered; rather it is to stay proceedings pending determination of nonexistent applications at the Supreme Court and in departure from its existing orders.

This Court cannot order as prayed. Under the doctrine of precedent, decisions of Superior Courts are binding on inferior Courts. In the hierarchy of Courts, the decisions of the Supreme Court is binding on all other Courts. NIKI TOBI, JSC (as he then was) stated so very emphatically in SULEIMAN VS. COP (2008) 162 LRCN 155 at 188, par. P. U.

The law goes against sentiments. This, as stated by NIKI TOBI JSC in SULEIMAN VS. COP (Supra) is not available to judges.

In that case, the learned professor, jurist and author stated thus – “The law goes against sentiments in Judgments because it can easily lead to bias or land the judges to bias; a position that is forbidden by a judge; a no-go area. It is good law that judges should not give judgments based on sentiments or on their whims and caprices but on the law and law alone. And the law on this appeal was provided for in the cases I have examined above.” In the same vein, the law in the instant appeal/application is in sections 1 (1); 233; 287(1) of the 1999 constitution; SULEIMAN VS. COP (Supra) and the doctrine of precedent or stare decisis.

As TOBI JSC queried in SULEIMAN VS. COP (Supra) “if trial judges fail or refuse to follow decisions of Appellate Court in the con and spirit of stare decisis, what right or moral courage do we have in the judiciary to condemn parties particularly the government for not obeying Court orders? Let somebody provide an answer for me.”

I cannot provide an answer. Oh! The answer is that we will have no moral or legal justification. Just as the apex Court deprecated the attitude of a High Court Judge towards the decisions of the Court of Appeal, so also this Court must feel bound by this same admonition. We have no discretion to exercise in this instance in view of the facts as averred and submissions made.

I adopt the pertinent and deeply conscientious questions agitated in the mind of my learned brother in the concluding portion of the lead Judgment herein and think that if the Applicant feels strongly that there is no sufficient fact of abuse of process as yet it may allow the trial as ordered to commence and may appeal against whatever Ruling or Order that may be offensive to it and incorporating an application for stay of proceedings. This may be an appropriate opportunity and anchor to complete the ventilation of whatever other application(s) that may be, at the Supreme Court, in respect of this appeal. Aside this gratuitous obiter, which I realize is not the function of this Court, I must at this point draw the attention of learned counsel for the Applicant nay indeed all counsel in the hallowed temple of justice to the golden and invaluable admonition of the Supreme Court as expressed in the contributory judgment of OBIAGWU JSC in OMNIA VS. DYKETRADE (2007) 7 SCNJ 255 at 309 particularly at 321, paragraphs 15 -20 where in the learned jurist stated – ”I would like to pause here and draw attention of learned counsel for the Appellant that it is not proper to give a diametrically opposed meaning to a decision of any Court, particularly the apex Court more so, when the pronouncement is very clear, cogent and straight forward. Selfish interest in prosecution of cases always compounds the problems more. Learned counsel, by the nature of their calling must desist from such an healthy practice….” It is elementary for any counsel to know that for the certainty of the law and maintenance of discipline and avoidance of judicial anarchy the Courts must in obedience to the doctrine of precedent obey and execute the judgment and orders of those other Courts above them. Has this not been constitutionally re-enforced? Is the constitution no longer the Supreme Law of the land and binding on all persons and authorities inclusive of this Court and its judicial and all other officers?

Is the order of the Supreme Court no longer binding on the parties the Respondent/Applicant inclusive? I am done and would hold my breadth for other germane complaints in other appeals, for after all the Supreme Court per OGBUAGU JSC in ASSOCIATED VS. AMALGAMATED (2007) 7 SCNJ 419 at 454 particularly at 415 deprecates the attitude of a lower Court that does not comply with its order of retrial or trial denovo on the merit even if it is caused by applications made therein.

At the said page 461 it is recorded “this Court then remitted the action to the High Court of Lagos State to be tried on its merit. This was nearly nine(9) years after it was filed at the said Federal High Court. It is most disgusting to me and perhaps all fair minded persons that the High Court up till now, has not been able to proceed with the said hearing because of the instant application.” Can’t the matter proceed to hearing and a determination be so made. Either of the parties who is aggrieved may then appeal ultimately to the Supreme Court; who has said the Applicant may not win? As OBIAGWU asked in ASSOCIATED VS. AMALGAMATED (Supra), why take all the Courts for a ride? Is the Applicant in the words of PATS ACHONOLU, JSC (of blessed memory) in ASSOCIATED VS. AMALGAMATED (Supra) as quoted by OBIAGWU, JSC, not “converting this Court into a vaudeville of legal play house by using or relying and embarking on all sorts of subtleties and merry – go – round proceedings to circumvent the real issues before the High Court… The legal gymnastics employed by the respondent to have a roller coaster ride and its seeking to use the processes of this Court to put the appellant in the woods though ingenious it may appear is to my mind both unethical, in considerate as it failed to respond to the appellant’s case or attend to the matter in issue… “It is a case of welcome and un welcome news at once. It is too hard to reconcile” shakespear (in Macbeth).

There comes a time in the difficult but challenging art or science of adjudication and administration of justice when a Court is faced with consideration of pure justice, and of course abstract law that seeks to shroud itself in concepts, dreariness and the theory of law. It is then that a Court should dig deep into its reservoirs of knowledge of its forensic arsenal borne out of experience and mete out justice that can easily be understood and appreciated by the common man in the street and the litigants. The Courts are the products of the society. They are established to solve and give remedies to people who complain of having been short-changed or wrong somehow. Therefore it should not allow undue technicalities likely to wreak (sic) havoc in the other party’s case to be introduced in an otherwise situations that do not admit of cloudiness or wooliness.” I shall, Therefore conclude by concurring that the application to stay proceedings be dismissed with a consequential attachment of an order for costs as assessed and awarded in the lead Ruling.

Appearances

A. Olumide FusikaFor Appellant

AND

R. T. Tanfa Miss, with her: T. Ejiofor MrsFor Respondent