GOVT OF ABIA STATE & ANOR v. MAURITZ WALTON (NIG) LTD & ORS
(2022)LCN/16752(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/ABJ/CV/746/2021(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. GOVERNMENT OF ABIA STATE 2. ATTORNEY GENERAL OF ABIA STATE APPELANT(S)
And
1. MAURITZ WALTON NIGERIA LIMITED 2. UNITED BANK FOR AFRICA (UBA) PLC 3. ZIPLON NIGERIA LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON EXERCISING THE DISCRETION OF THE COURTS
I wish to point out that, the prayers sought by the Applicants are grantable at the discretion of the Court. The relief is therefore granted in the exercise of judicial power, and like all judicial discretions, it must be granted judicially and judiciously. Capricious exercise of discretion is frowned upon by the Courts and must be avoided at all cost. Furthermore, being the exercise of discretion, it must be carried out based on the facts and circumstances of that case. See Eye v. FRN (2018) & NWLR (Pt. 1619) 495; Prince Shegun Samuel Aiki v. Oloruntoba Bamidele Simon & Ors. (2010) LPELR-8968 (CA) and Azuh v. Union Bank of Nig. Plc. (2014) 11 NWLR (Pt. 1419) 580. Thus in Ukachukwu v. PDP (2014) All FWLR (Pt.728) 887, the Supreme Court, per Kekere-Ekun, JSC held that:
“The law is settled that in an application of this nature, which calls for the exercise of the Court’s discretion, the discretion must be exercised judicially and judiciously, taking all the facts and circumstances of the case into consideration”. PER TSAMMANI, J.C.A.
THE POSITION OF LAW ON AN APPLICATION FOR STAY PENDING THE DETERMINATION OF AN APPEAL
An application for stay of proceedings pending determination of an appeal, is one that is not granted as a matter of course or routine. It can only be granted where special and/or exceptional circumstances are shown to exist. A special or exceptional circumstance has been said to be one that is peculiar or unique, aside from the ordinary state of affairs. Furthermore, in considering whether or not to grant an order for stay of proceedings, the Court must consider the competing rights of the parties to justice based on the available affidavit evidence. An order for stay of proceedings will be granted, if its refusal will likely cause greater hardship than granting same and the question of hardship is deducible from the affidavit evidence. On the other hand, if the Court comes to the conclusion that a stay of proceedings is likely to cause more hardship, the application will be refused.
One other factor which the Court will consider in the determination of an Application for stay of proceedings; is the need to ensure that the res of the proceedings are preserved. This is because, it is the res that sustains the proceedings and once the res is destroyed, the entire proceedings will be without life. So, if refusal of an order for stay of the proceedings will lead to destruction of the res, the proceedings must be stayed, but if the res will not be destroyed in the course of continuity of the proceedings, an order of stay must be refused.
It must be noted however, that the consideration of an application for stay of proceedings must be predicated on the existence of a valid pending appeal. In other words, the existence of a valid Notice of Appeal, is the platform upon which the Court will consider whether or not the conditions for the grant of an order of stay of proceedings have been met. See Mobil Producing Nig. Unltd. V. Ayeni & Ors. (2005) 1 NWLR (Pt. 1067) 185; The Provost Alvan Ikoku College of Education v. Amuneke (1991) 9 NWLR (Pt. 213) 49; Nika Fishing Co. Ltd. v. Laving Corporation (2008) 16 NWLR (Pt. 1114) 509 and Federal Republic of Nigeria & Ors. v. Alhaji Mohammed Sani Abacha & Ors. (2007) LPELR-8177 (CA). The legal position was summarised by the Supreme Court per Adekeye, JSC in Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & Ors. (2010) LPELR-40142 (SC), as follows:
“A stay of proceedings presupposes that there is a valid appeal pending, but then such application is not granted as a matter of routine, tied slavishly to the filing of an appeal. The applicant must show to exist special and exceptional circumstances which have the effect of compelling the Court to grant his application. It is a matter of law and facts. The grant is therefore made subject to a judicial and judicious exercise of the discretion of the Court, having regard to all materials placed before it and in the interest of justice. In granting the application, the Court must consider the competing rights of the parties to justice and equity. A very important factor in granting a stay is the need to ensure that the Res of the proceedings is preserved as the Res sustains the proceedings, and once it is destroyed, the whole proceedings become moribund. In short, if refusal of an order of stay will lead to a destruction of the Res – the proceedings must be stayed…” PER TSAMMANI, JC.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): By a Motion on Notice which was filed on the 24/11/2021, the Appellants/Applicants prayed for the following reliefs:
1. An Order of this Hon. Court granting LEAVE to Appellants/Applicants to entertain their prayer contained in Paragraph 2 below (i.e. to apply for the order of the Court staying proceeding in Suit NO: FCT/HC/CV/2470/2017: MAURITZ WALTON NIGERIA LIMITED VS. GOVERNMENT OF ABIA STATE & 3 ORS currently going on in the FCT High Court (Coram. J. N. Ogbonnaya, J) sitting in Kubua without attaching the requisite ruling dated 8th October, 2021 as the trial Court has without any reason known to law refused and failed to release the said ruling to the Appellants/Applicants.
2. An Order of this Hon. Court staying proceeding in Suit No: FCT/HC/CV/2470/2017 (MAURITZ WALTON NIGERIA LIMITED VS. GOVERNMENT OF ABIA STATE & 3 ORS currently pending at the FCT High Court (Coram J. N. Ogbonnaya, J) sitting in Kubwa.
3. And for such Order of further Orders as this Hon. Court may deem it to make in the circumstances.
The Grounds upon which the Application is predicated are as follows:
1. The Hon. trial Court is, with respect, totally eroding the confidence of the parties sued by 1st Respondent and the general public as regards the trial Court’s capacity to adjudicate the suit without a pronounced bias in favour of 1st Respondent.
2. The Hon. trial Court has obstructed the administration of justice and frustrated the prosecution of the Appellants/Applicants’ Appeal and Motion on Notice by refusing and failing to release the certified true copy of the ruling dated 8th October 2021, the fulcrum of the appeal.
3. This is despite all the numerous applications/reminders, efforts and daily presence at the registry of the Court below by the Appellants. The numerous applications/reminders are as follows:
a. 11th day of October, 2021
b. 15th day of October, 2021
c. 20th day of October, 2021
d. 25th day of October, 2021
e. 26th day of October, 2021
f. 27th day of October, 2021; and
g. 28th day of October, 2021
h. 3rd day of November, 2021
i. 15th day of November, 2021.
4. The Hon. trial Court’s refusal to release the ruling has also led credence to the public’s perception of the Court’s inability to stand as impartial arbiter in the suit.
5. These ugly scenarios are similar to what happened to the 3rd Respondent who had to petition the Chief Judge of F.C.T. as to mandate the trial Court to release that ruling 3rd Respondent appealed against to enable the 3rd Respondent compile and transmit the Record of Appeal as well as file Motion for Stay before this Hon. Court.
6. There is already a written allegation backed with a deposed affidavit by the 3rd Respondent that the Hon. trial Judge tampered with her ruling delivered in open Court wherein it awarded cost of N50,000.00 against 3rd Respondent in favour of 1st Respondent only for the Hon trial Court to later in the secret of the Chamber change the said cost to N100,000.
7. In the adjudication of this suit, the Hon trial Court has become basically immersed in official bias by developing “an abnormal desire or inclination to pursue a predetermined line of action which would prevent an impartial adjudication of the dispute between the parties”.
8. As a result, the Hon trial Court has curiously granted all the inordinate and manipulative oral applications of 1st Respondents all which totally crippled all the defendants from fielding their witnesses and prosecuting their respective defence to the suit. Herein are the instances:
i. On 29th June, 2021 in a bench ruling the trial Court granted the oral application of 1st Respondent urging the Court below not to accord 3rd Respondent’s Statement of Defence judicial notice.
Court:
“So, this Court cannot and does not take judicial notice of the said Statement of Defence filed by the 4th Defendant in this suit… “
ii. On 14th October 2021, the Hon trial Court granted another oral application of 1st Respondent and thereby immediately foreclosed the Appellants from presenting their witnesses and prosecuting their defence to the suit.
iii. On the same 14th October 2021, the Hon. trial Court granted another improper oral application of 1st Respondent and the Hon. trial Court consequently struck out 2nd Respondent as party in the suit despite:
(a) the fact that issues are already joined in 1st Respondent’s Statement of Claim and the 2nd Respondent’s Statement of Defence respectively.
(b) the Appellants’ Statement of Defence in the suit and that of 2nd Respondent are intertwined.
iv. Again on the same 14th October 2021, 1st Respondent orally applied to the Hon trial Court to declare that the 3rd Respondent has lost right and power to open its defence and call witnesses. Surprisingly, the Hon Court below granted the senile application.
v. To cap all and having effectively goaded the Hon trial Court into disabling all the defendants from presenting witnesses and duly defending the suit, the Hon trial Court on 15th October 2021, granted that oral application of 1st Respondent and adjourned the matter for filing of Final Written Addresses.
vii. By these manipulated and surreptitious proceedings, 1st Respondent’s unfounded Claim of USD 11,325,000.00 and N1,716,00,000 against State public fund of the Appellants became virtually undefended and ready to be looted, plundered, burgled and pillaged through a said judicial proceeding.
9. In the case of Oyedeji v. Akinleye (2002) 3 NWLR (Pt. 755) 586, the Court held:
“Bias on the part of the Court is a very serious thing and is capable of affecting or destroying the public confidence enjoyed by the judiciary.
Thus, a trial Court must not in the conduct of the proceedings before it, be seen either by its words or action to scandalize the public and display partiality in favour of one of the parties before it against the other”.
“Where an allegation of bias is made against a Judge sitting in a Court or Tribunal, what is required to establish the allegation is not the actual bias but the likelihood of bias and the test of likelihood of bias is the objective impression of right-minded persons. There must be circumstances from which a reasonable man would think it likely or probable that the Judge or chairman would or did favour one side unfairly at the expense of the other. “
…
“Where bias is being alleged against a Court or Judge, it is not the real likelihood that the Court or Judge could or did favour one side at the expense of the other that is important. It is that any person looking at what the Court or Judge has done will have the impression in the circumstances of the case that there was real likelihood of bias”.
10. The Hon. trial Court has virtually descended into the parties’ dusty arena just to ensure that all the fatal omissions and blunders of 1st Respondent in the prosecution of the suit are shielded.
a. The Hon. trial Court is fully aware that, 1st Respondent’s Amended Statement of Claim was filed in total contravention of Order 25 Rules 4 and 5 of the High Court of FCT, Abuja Rules 2018:
4. If a party who has obtained an order to amend does not do so within the time limited for that purpose, or if no time is limited, then within 7 days from the date of the order, such party shall pay an additional fee of N100 (One Hundred Naira) for each day of default.
5. Whenever any originating process or pleading is amended, a copy of the amended document shall be filed in the Registry and copies served on all the parties to the action.
b. Despite the concerns of all the defendants on the above, the Hon trial Court has adjourned the suit for “adoption of Final Written Addresses”.
11. Suffice it to say that the Hon. trial Court is not “…constituted in such a manner to secure its independent and impartiality” as required by Section 36 of the Constitution of the FRN, 1999 (as amended).
The motion is supported by an affidavit of 10 paragraphs deposed to by one Abraham Ita Udoh, an Assistant Litigation Secretary at Chukwuma Machukwu-Ume, SAN & Co, of counsel for the Applicants. Several exhibits were attached to the said affidavit. In response to the Motion and Affidavit of the Applicants, the 1st Respondent filed a Counter-Affidavit of 32 paragraphs deposed to by one Dr. Mauritz Ibe, the Chief Executive officer of the 1st Respondent, to which were attached several exhibits. The Appellants/Applicants then filed a Further and Better Affidavit of 5 paragraphs to which was annexed one exhibit. The 1st Respondent also filed a Further Counter-Affidavit to which was annexed the ruling of the trial Court delivered on the 08/10/2021. The 2nd and 3rd Respondent did not file any response to the application. Thus, as required by the Rules of this Court, the Appellants/Applicants and the 1st Respondent filed and exchanged Written Addresses.
The Appellant/Applicant’s Written Address was filed on 3/12/2021. Therein, two issues were raised for determination as follows:
1. Whether having regards to the evidence of facts, and circumstances of this case, this Court can in the interest of justice grant the Appellant/Applicants leave to entertain their motion for stay of proceedings without the ruling of the trial Court being appealed against.
2. Whether the Appellants/Applicants’ Affidavit in support of motion on notice and notice of appeal disclose recondite and arguable issues necessitating the exercise of this Court’s discretion to grant the application for a stay of proceedings.
The 1st Respondent’s Written Address in opposition to the motion was filed on 07/12/2021. One (1) issue was distilled thereon for determination as follows:
“Whether the learned trial Judge denied the Appellants/Applicants their right of fair hearing”.
The Applicants filed a Reply to the 1st Respondent’s Written Address. It was filed on 28/1/22 but deemed filed on 09/2/2022. As stated earlier, the 2nd and 3rd Respondents did not file any Counter Affidavit nor did they file any Written Address. Having considered the conflicting Affidavits filed herein, I proposed to determine the Application on the issues raised by the Appellants/Applicants. I shall determine the issues separately.
On issue one, Mr. Chukwuma Machukwu-Ume, SAN of learned counsel for the Appellants/Applicants began by submitting that, it is settled principle of law that, application for stay of an ongoing proceeding must exhibit among others, the ruling appealed against as well as an arguable Notice of Appeal. That, in the instant case, the Applicants have exhibited the required Notice of Appeal. That in respect of the record, the trial Court failed and/or refused to release the certified true copy of the ruling appealed against. That, a reading of paragraphs 5(i) – (x) of the Affidavit in Support of this motion and the exhibits thereto, will give a full picture of the hardship the Applicants have been subjected to Letters Written to the Registry of the Court below requesting for the records marked “LETTERS 1-9” were attached to the Affidavit in Support of the Motion on Notice. That similar letters by the 3rd Respondent suffered similar fate.
Learned senior counsel then submitted that, this Court has the unfettered powers to stop such miscarriage of justice. The case of Ijudigal v. Nigerian Air Force (2018) LPELR-46856 (CA) was cited in support; and to urge us to exercise our judicial powers bestowed by Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and Order 4 Rule 3 and 21 Rules 2 and 3 (1) of the Rules of this Court to grant the Application. The case of Abiodun & Ors. V. A. G; Federation (2007) LPELR-8550 (CA) was then cited to submit that, in any case, it is trite that, a party cannot be allowed to suffer from the shortcomings of the trial Court.
In response, learned counsel for the 1st Respondent contended that, in the case of Ifezue v. Mbadugha & Anor. (1984) 15 NSCC 314, which is impari materia with the facts of this case, the Court was called upon to consider the effect of failure of the Registry of the Court of Appeal to give effect to the second limb of Section 258(1) of the 1979 Constitution of the Federal Republic of Nigeria, held that, that provision is directory and not mandatory. That in construing the provisions of a statute of this nature, the Supreme Court held that, when the provisions of a statute relate to the performance of a public duty and the case is such that to hold as null and void, acts done in neglect of this duty would work general inconvenience or injustice to persons who have no control over those entrusted with the duty, it is the practice to hold those provisions to be directory, the neglect of which, though punishable, would not affect the validity of the acts done.
Learned counsel for the 1st Respondent concluded that, in any case, the ruling of the lower Court appealed against is contained at pages 633-636 of Vol. 2 of the record of appeal compiled by the Appellants since the 13/10/2021. Furthermore, that the authenticated copy of the said ruling was served on the Appellants/Applicants on the 30/11/2021; thus ensuring substantial compliance with the second limb of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria.
In reply on points of law, learned senior counsel for the 1st Respondent contended that, the case of Ifezue v. Mbadugha & Anor. (supra) relied upon by the 1st Respondent, does not in anyway apply to the present case. That the Ifezue’s case, was concerned with an appeal against a final judgment while this Application is in respect of an interlocutory ruling of the Court below. That, by the use of the phrase, “after the conclusion of evidence and final addresses” in Section 258(1) of the 1979 Constitution, suggests that the Section is tied to final determination of the substantive suit. The case of State v. Yanga (2021)5 NWLR (Pt. 1769) 375 was cited in support. The case of Akoma v. Osenwokun (2014) 11 NWLR (Pt. 1419) 462 was further cited to contend that Section 258 has been held to apply to trial Courts only, and not appellate Courts.
Learned senior counsel went on to submit that, the decision to the effect that Section 258(1) of the 1979 Constitution is not mandatory but merely directory, has been set aside by the Supreme Court in Oruche v. C. O. P. (1997) 4 NWLR (Pt. 497) 1. That by that decision therefore, it is mandatory for the Court to deliver copies of its judgment to the parties within seven (7) days of delivery of the said judgment. That, Section 258(1) is clearly impari materia with Section 294(1) of the 1999 Constitution. That, it is therefore clear, that Section 294(1) of the 1999 Constitution (supra) requires that the authenticated copies of the judgment be given to parties within seven (7) days after the day judgment is delivered. It is thus submitted that, Ifezue’s case was decided on the provisions, facts and circumstances entirely different from those of the appeal for which this Application is made. That, Ifezue’s case decided under Section 258(1) of the 1979 Constitution has been overridden by the Supreme Court in Oruche’s case as well as modifications in Section 294(1) of the 1999 Constitution.
Learned senior counsel for the Applicants then contended that, the response of the 1st Respondent to the 2nd issue posited by the Applicant is evasive. That, the issue, whether the failure of the Registry of the trial Court can be visited on the 1st Respondent is incompetent and misleading. That, the principle that the sin or mistake of the Court cannot be visited on a litigant is a general rule of law but not devoid of exceptions. The case of R.M.A.F.C. v. Onwuekweikpe (2009) 15 NWLR (Pt. 1156) 592 at 608 was cited in support; and to submit that, the principle that the sin or mistake of Court cannot be visited on a litigant does not avail a litigant who unduly benefited from the sin or mistake of the Court, especially were such mistake injures or overreaches the party complaining. That, in the instant case, the trial Court exhibited inordinate bias in favour of the 1st Respondent.
Now, the relief sought by the Applicants here, is for this Court to grant them leave to apply for an order staying the proceedings in Suit No: FCT/HC/CV/2470/2017 which is the subject of Appeal No: CA/ABJ/CV/746/2021 now pending before this Court; without attaching the ruling delivered on the 8th day of October, 2021. The said ruling delivered on the 8th day of October, 2021 is the subject of that appeal. The ground(s) upon which that request is made, is mainly to the effect that, the trial Court failed and/or refused to serve a copy of the said ruling the subject of Appeal No: CA/ABJ/CV/746/2021.
By the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended):
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decisions within seven days of the delivery thereof”. [underlined by me for emphasis).
It should be remembered that the complaint of the Appellants/Applicants here is that, the trial Court did not comply with the second limb of Section 294(1) of the Constitution (supra), in that it did not avail them with copies of the ruling they have appealed against, duly authenticated, within the time stipulated by the constitution. The emphasis here therefore is on the second limb of Section 294(1) of the Constitution, which demands that the Court’s delivery of a decision shall:
“…furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
It should be noted that, the demands of Section 294(1) of the Constitution is not restricted to final judgments. The word used here, is the generic term “decision”. Section 318(1) of the 1999 Constitution defines the word “decision” to mean any determination of a Court and includes judgment, decree, order, conviction, sentence or recommendation. In my view, that definition is wide enough to include a ruling under the ejusdem generis rule. I therefore hold that, the ruling of the 8th day of October, 2021 appealed against, is captured by the definition of decision in Section 318(1) of the 1999 Constitution. In that respect, the Applicants were by Section 294(1) of the 1999 Constitution, entitled to be furnished a duly authenticated copy of that decision (ruling) within seven (7) days of its delivery.
Now, the ruling subject of this Application, was delivered on the 8th day of October, 2021. By the said Section 294(1) of the Constitution, the trial Court was obligated to furnish the Applicants with a copy of the ruling on 15/10/2021. The Applicants complain that, the copy of the ruling was never at any time availed them. The 1st Respondent, however, contends that, the Applicants were furnished an authenticated copy of the said ruling on 30/11/2021. That, in any case, the Record of Appeal was compiled and transmitted to this Court on 13/10/2021, and it contains the ruling at pages 633-636 (Vol. 2). Those facts were deposed to at paragraph 20 of the 1st Respondent’s Counter-Affidavit. That fact was never denied nor was it controverted by the Appellants/Applicants.
I note that the ruling appealed against was delivered on 8/10/2021. The Applicants deposed in paragraph 3 of the Affidavit in Support of the Motion under consideration, that they made several applications between the 11th day of October, 2021 and 15th day of October, 2021 to be furnished with a duly authenticated copy of the said ruling to no avail. However, on 15/10/2021, the Applicants filed their Notice of Appeal, presumably, without sighting the record of appeal. The Record of Appeal was duly compiled and transmitted to this Court on 24/11/2021 within time. Most importantly, the ruling complained against is duly captured on pages 633-636 of vol. 2 of the Record of Appeal. See also the supplementary record of appeal. The Applicants have not discredited the Record of Appeal nor have they contended that the ruling contained on pages 633-636 of the Records, is not the ruling they have appealed against. In any case, every page of the said ruling has been duly certified as the ruling delivered on 08/10/2021. Instead of taking advantage of the said ruling contained in the said Records to prosecute their appeal, the Applicants have insisted that the trial Court avail them a copy of the ruling, otherwise, we grant them leave to pray for an order of stay of proceedings of the trial Court without the said ruling.
I wish to point out that, the prayers sought by the Applicants are grantable at the discretion of the Court. The relief is therefore granted in the exercise of judicial power, and like all judicial discretions, it must be granted judicially and judiciously. Capricious exercise of discretion is frowned upon by the Courts and must be avoided at all cost. Furthermore, being the exercise of discretion, it must be carried out based on the facts and circumstances of that case. See Eye v. FRN (2018) & NWLR (Pt. 1619) 495; Prince Shegun Samuel Aiki v. Oloruntoba Bamidele Simon & Ors. (2010) LPELR-8968 (CA) and Azuh v. Union Bank of Nig. Plc. (2014) 11 NWLR (Pt. 1419) 580. Thus in Ukachukwu v. PDP (2014) All FWLR (Pt.728) 887, the Supreme Court, per Kekere-Ekun, JSC held that:
“The law is settled that in an application of this nature, which calls for the exercise of the Court’s discretion, the discretion must be exercised judicially and judiciously, taking all the facts and circumstances of the case into consideration”.
Now, considering the facts and circumstances of this case, it is not in doubt that the trial Court did not furnish the Applicants a duly authenticated copy of the ruling delivered on the 8/10/2021 within the seven (7) days as stipulated by the Constitution. However, the Record of proceedings of the trial Court, transmitted to this Court in respect of Appeal No: CA/ABJ/CV/746/2021 in respect of the appeal against the ruling of 8/10/2021 is contained on pages 633-636 of volume 2 of the said Records. See also the Supplementary Record of Appeal. It is duly authenticated, having been certified by the trial Court. I am therefore of the view that, the Record of Appeal which was transmitted, no doubt at the instance of the Applicants, contain the ruling which the Applicants, require for the prosecution of their appeal; and indeed, their Application for stay of proceedings. For those reasons, I resolve issue one (1) against the Applicants.
On issue two (2), learned senior counsel for the Applicants submitted that, the law is settled that, an application for stay of proceedings is at the discretion of Court and which discretion is to be exercised judicially and judiciously. The case of Ajekigbo v. Bola (2019) LPELR-47218 (CA) was cited in support and to further submit that, it can only be granted in special and exceptional circumstances. That in the instant case, the Applicants have by their affidavit deposed to facts which establish special and exceptional circumstances necessitating that the Court exercise its discretion in their favour. That, the Applicants have also filed a Notice of Appeal which raise arguable and recondite issues of law that will require the Court to decide on, one way or the other. That, the record of appeal has been compiled and transmitted; and the appeal entered. The case of Ishaku & Anor. v. Kantiok & Ors. (2011) LPELR-8944 (CA) was then cited in support.
On the issue of the res, learned senior counsel contended that, the claim of the plaintiff/1st Respondent in the Amended Statement of claim, made specific claims of USD11,325,000.00 and N1,716,000.00. That, on the 14/10/2021, the 1st Respondent orally applied to the trial Court to disable all the four (4) defendants from presenting any witness and the application was granted; and thereafter adjoined the suit to the 9/12/21 for adoption of Final Written Addresses. That, the action of the trial Court amounted to a denial of the right to fair hearing. Furthermore, the action of the trial Court evinced clear instances of denial of fair hearing and orchestrated bias against the Appellants/Applicant as to rob the Court of jurisdiction to hear the suit. That, those acts constitute special and exceptional circumstances necessitating the grant of the application for stay. The case of Maris Ventures Ltd v. Petroplast Industries ltd. (2000) LPELR-6868 (CA) was then cited to submit that, the evidence of denial of fair hearing and pronounced bias in favour of the 1st Respondent, has removed the independence and impartiality of the learned trial Judge. We were accordingly urged to hold that, the Applicants’ have furnished this Court with sufficient material which will necessitate the grant of their Application for stay of proceedings and the preservation of the res.
In response, learned counsel for the 1st Respondent contended that, Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), donates to every person the right to fair hearing within a reasonable time. That it means that litigants are entitled to have their matters decided by the Court as expeditiously, within a reasonable time. That, this is a case sounding in simple contract, wherein the Governor of Abia State vide a letter under his hand, introduced the 1st Respondent as the consultant of the 2nd Appellant to the Minister of Finance/Coordinating minister for the Economy; and the Director-General of the Debt Management Office, appealing to them to assist to clarify and confirm the consultant’s claim for refund on behalf of the Abia State Government. That, the 1st Respondent as consultant to the 2nd Appellant had previously determined the debt to be USD151,000,000.00. That, that is the case that the 1st Respondent has managed to prosecute to the point of Final Written Address, from 2017-2021 despite all odds. That, the Appellants have now complained by way of appeal, that they are being rushed to judgment, even when the 1st Respondent had closed its case.
Learned counsel for the 1st Respondent then cited the cases of Federal Housing Authority v. Kalejaiye (2010) LPELR-1267 (SC) and Bill Construction Co. Ltd. v. Imani & Sons (2016) LPELR-782 (SC) to submit that, the Appellants/Applicants elected not to take advantage of the opportunities given them by the trial Court to present their case before they were foreclosed. That, any prejudices arising therefrom, are self-inflicted and cannot grant a prayer for stay of proceedings, nor do they amount to bias by the learned trial Judge. The case of Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144 was then cited in support, and to further submit that the right to be heard is the choice of a party. We were accordingly urged to resolve this issue against the Appellant and to refuse the prayer for stay of execution.
In reply on points of law, learned counsel for the Applicants contended that, the cases of Federal Housing Authority v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147 and Bill Construction Co. Ltd. v. Imani & Sons (supra) relied upon by learned counsel for the 1st Respondent are entirely distinguishable from the facts of this case. That, in the case of F.H.A. v. Kalejaiye (supra) the Appellant/Applicant whose defence was foreclosed did not appear in Court at all to defend its case. That, in the instant case, the Applicants were in Court regularly and eager to defend the suit but were foreclosed because they did not field a particular witness the trial Court ordered them to field contrary to the law that, it is not the duty of Court to direct a party on how to conduct his case. That, in Bill Construction Co. Ltd. V. Imani & Sons (supra), the Respondent’s case was foreclosed for failure to file Counter-Affidavit in opposition to the originating summons. That instead of filing a Counter- Affidavit, the Respondent had filed a Preliminary Objection, and the Preliminary Objection having failed, the Respondent left the case undefended. We were accordingly urged to grant the Application and order a stay of further proceedings in the trial Court, in respect of the 1st Respondent’s claim before it.
Now, it is apparent that the Appellants/Applicants have prayed this Court for an order staying proceedings in Suit No: FCT/HC/CV/2470/2017: Mairitz Walton Nigeria Limited v. Government of Abia State & 3 Ors pending before the FCT High Court of Justice, sitting in Kubua. As I stated earlier in the course of resolving prayer 1, the grant of an order to stay an ongoing proceeding in a lower Court is a call on the Court to exercise its discretionary power recognized by law. I also wish to reiterate that, being an exercise of discretion, it must not be subjected to the whims and caprices of the judex but exercised in a judicial and judicious manner. For the exercise of discretion, there are no hard and fast rules so that, no one case will be an authority for another. Everything will depend on the facts and circumstances of each case. See Olatubosun v. Texaco (Nig.) Plc. & Anor. (2012) LPELR-7805 (SC); Anachebe v. Ijeoma & Ors. (2014) LPELR-23181 (SC) and Mba v. Mba (2018) LPELR-44295 (SC).
An application for stay of proceedings pending determination of an appeal, is one that is not granted as a matter of course or routine. It can only be granted where special and/or exceptional circumstances are shown to exist. A special or exceptional circumstance has been said to be one that is peculiar or unique, aside from the ordinary state of affairs. Furthermore, in considering whether or not to grant an order for stay of proceedings, the Court must consider the competing rights of the parties to justice based on the available affidavit evidence. An order for stay of proceedings will be granted, if its refusal will likely cause greater hardship than granting same and the question of hardship is deducible from the affidavit evidence. On the other hand, if the Court comes to the conclusion that a stay of proceedings is likely to cause more hardship, the application will be refused.
One other factor which the Court will consider in the determination of an Application for stay of proceedings; is the need to ensure that the res of the proceedings are preserved. This is because, it is the res that sustains the proceedings and once the res is destroyed, the entire proceedings will be without life. So, if refusal of an order for stay of the proceedings will lead to destruction of the res, the proceedings must be stayed, but if the res will not be destroyed in the course of continuity of the proceedings, an order of stay must be refused.
It must be noted however, that the consideration of an application for stay of proceedings must be predicated on the existence of a valid pending appeal. In other words, the existence of a valid Notice of Appeal, is the platform upon which the Court will consider whether or not the conditions for the grant of an order of stay of proceedings have been met. See Mobil Producing Nig. Unltd. V. Ayeni & Ors. (2005) 1 NWLR (Pt. 1067) 185; The Provost Alvan Ikoku College of Education v. Amuneke (1991) 9 NWLR (Pt. 213) 49; Nika Fishing Co. Ltd. v. Laving Corporation (2008) 16 NWLR (Pt. 1114) 509 and Federal Republic of Nigeria & Ors. v. Alhaji Mohammed Sani Abacha & Ors. (2007) LPELR-8177 (CA). The legal position was summarised by the Supreme Court per Adekeye, JSC in Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & Ors. (2010) LPELR-40142 (SC), as follows:
“A stay of proceedings presupposes that there is a valid appeal pending, but then such application is not granted as a matter of routine, tied slavishly to the filing of an appeal. The applicant must show to exist special and exceptional circumstances which have the effect of compelling the Court to grant his application. It is a matter of law and facts. The grant is therefore made subject to a judicial and judicious exercise of the discretion of the Court, having regard to all materials placed before it and in the interest of justice. In granting the application, the Court must consider the competing rights of the parties to justice and equity. A very important factor in granting a stay is the need to ensure that the Res of the proceedings is preserved as the Res sustains the proceedings, and once it is destroyed, the whole proceedings become moribund. In short, if refusal of an order of stay will lead to a destruction of the Res – the proceedings must be stayed…”
In the instant case, it has not been contended that there is no valid notice of appeal upon which the motion for stay of proceedings can be predicated. Indeed there is a valid Notice of Appeal which was filed on 15/10/2021 against the ruling of the trial Court delivered on 08/10/2021. The Res in the action pending in the Court below is money; and it is common knowledge that money cannot be destroyed as same can always be recovered by a successful party. What remains to be considered is where the balance of convenience will lie should the application for stay be granted, or refused.
In determining the issue, I have had the patience to read the various affidavits of the Applicants and that of the 1st Respondent. I therefore note that the summary of the extensive depositions captured in the Appellants/Applicants’ Affidavit in support of this motion, has been correctly captured by the 1st Respondent in paragraph 5 of the 1st Respondent’s Counter-Affidavit filed on the 30/11/2021 as follows:
“The Appellants/Applicants have painted the picture of a malicious trial Judge pursuing a pre determined line of action; which would prevent an impartial adjudication of the dispute between the parties and in so doing, decided to see only what they wanted to see, portrayed it in (albeit) a friendly light, and then shut their eyes to everything else, no matter how significant”.
No doubt, in the entire affidavit of the Appellants/Applicants in support of the motion under consideration, the Applicants have merely sought to expose and impute bias against the learned trial Judge in the conduct of the proceedings, in favour of the 1st Respondent. It should be noted that, what concerns us in this Application, is whether the Appellants/Applicants have presented before us, sufficient reasons why a stay of proceedings should be granted. As I stated earlier, the Applicants’ prayer is hinged majorly on alleged bias by the trial Court in favour of the 1st Respondent. It should be noted that, once bias or likelihood of it is established, it destroys the foundation of any proceeding and decision reached by the Court; and completely puts on hold any further steps in the matter by the Judge. See Pavet International Co. Ltd. v. International Bank for West Africa (1994) 5 NWLR (Pt. 347) 685; Womiloju & Ors. v. Ogisanyin-Anibire & Ors. (2010) LPELR-3503 (SC) and Akpabuyo Local Government v. Hon. Orok N. Edim (2002) LPELR-7056 (CA). Thus, in Womiloju & Ors. v. Ogisanyin Anibire & Ors. (supra), the Supreme Court per Adekeye, JSC said:
“Where an allegation of bias is established by evidence or acknowledgment, it disqualifies a Judge from participating in the matter placed before him. An allegation of bias or likelihood of bias against a Judge is usually a very serious matter not to be taken with nonchalance. It must be supported by clear, direct, positive, unequivocal and cogent evidence from which real likelihood of bias could be inferred and not mere suspicion”.
The take here is that, allegation of bias against a Judge is a serious matter, which if established, will disqualify a Judge from further conducting a proceeding. Where such proceeding has been concluded, it is liable to be nullified and consequently set aside.
In the instant case, it’s the same allegation of bias that pervades the two grounds of appeal. The Applicants have therefore, sought in prayers 2 and 3 of the Notice of Appeal that the order made on the 08/10/2021 that the Appellants/Applicants open their defence be set aside; and the matter be remitted to another Judge of the FCT High Court. I wish to iterate that, the fact of whether or not bias has been proved is not our concern by this Application. That is an issue that will be determined when the substantive appeal filed on 15/10/2021 is heard and determined. However, I am of the view that, the justice of the case tilts the balance of convenience in favour of granting the application. It is hereby granted. Consequently, I hereby Order that:
1. Prayer one (1) of the motion paper is hereby refused.
2. The proceedings of the Federal Capital Territory High Court sitting in Kubwa in suit No: FCT/HC/CV/2470/2017 between Mauritz Walton Nigeria Limited v. Government of Abia State & 3 Ors is hereby stayed pending the hearing and determination of this appeal, to wit: Appeal No: CA/ABJ/CV/746/2021.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, copy of the draft ruling, and I am in total agreement with my learned brother, HARUNA SIMON TSAMMANI, JCA in refusing prayer one but staying the proceedings of the Federal Capital Territory High Court sitting in Kubwa in Suit No FCT/HC/CV/2470/2017 between Mauritz Walton Nigeria Limited v. Government of Abia State & 3 Ors pending the determination of the appeal.
ISAH BATURE GAFAI, J.C.A.: I have had a preview of the ruling just delivered by my learned brother Haruna Simon Tsammani, JCA. I am in agreement with the lucid reasonings expressed therein and the conclusions reached thereby. I will add, by way of emphasis only, that the justice of this case, particularly where the integrity of the learned trial Judge and by implication the entire judicial system is put on the line rightly or wrongly by the Applicants, it is only just and fair that the proceedings in the substantive suit before the trial Court be halted pending the determination of the Applicants’ complaint of judicial bias against the learned trial Judge in the proceedings in Issue; as correctly sought by the Applicants in the second prayer on their Motion and as rightly granted and ordered by my lord in the lead ruling. In effect, I too hereby order that the proceedings in Suit No. FCT/HC/CV2470/2017 be stayed pending the determination of Appeal No. CA/ABJ/CV/746/2021.
Appearances:
Chukwuma Machukwu-Ume, SAN, with him, Tony Ogbulafor, Esq. and G. A. Okereke, Esq. For Appellant(s)
J. Usman, SAN, with him, C. O. Ogbu, Esq. and Joseph Ameh Abah, Esq. – for 1st Respondent
J. C. Njikonye, SAN, with him, Ayodele Arotiowa, Esq. and Isaac Ita, Esq. – for 3rd Respondent
2nd Respondent is absent For Respondent(s)