HONOURABLE COMMISSIONER FOR EDUCATION, AKWA IBOM STATE & ORS v. HARRIKOK ENGINEERING COMPANY LIMITED & ANOR (2013)

HONOURABLE COMMISSIONER FOR EDUCATION, AKWA IBOM STATE & ORS v. HARRIKOK ENGINEERING COMPANY LIMITED & ANOR

(2013)LCN/6281(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2013

CA/C/146/2010

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. HONOURABLE COMMISSIONER FOR EDUCATION, AKWA IBOM STATE
2. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, AKWA IBOM STATE
3. THE GOVERNMENT OF AKWA IBOM STATE Appellant(s)

AND

1. HARRIKOK ENGINEERING COMPANY LTD.
2. PRINCE NSIMA HARRISON Respondent(s)

RATIO

THE POSITION OF THE LAW ON WHEN AN APPEAL IS DEEMED TO HAVE BEEN ENTERED IN THE COURT

Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 provide that:
10. An appeal shall be deemed to have been entered in the Court when the Record of Proceedings in the court below has been received in the Registry of the Court.
11. After an appeal has been entered and until if has been finally disposed of the Court shall be seized of the whole of the proceedings as between the parties thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the court below, but any application may be filed in the court below for transmission to the Court.
An appeal is said to be entered when all the records of appeal is transmitted from the lower court to this Court; and received in the Registry. After an appeal has been entered, all applications are made to the appellate court, even though an application maybe filed in the lower court for proper transmission to the appellate court. At that stage, the lower court no longer has jurisdiction to entertain any application brought in respect of the matter. See: Esiri vs. Idika (1987) 4 NWLR (PT 66) 503. PER OTISI, J.C.A.

DEFINITION OF JURISDICTION

The consideration of every such application must conform to the fundamental constitutional requirements of fair hearing, which implies that such application must be sewed on the other party, to give him opportunity to respond thereto. The right to fair hearing is guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. Fair hearing is a hearing which is fair to all parties to the suit, giving each one an opportunity to be heard, whether the party be the plaintiff, or the defendant, the prosecution or the defence, the applicant or the respondent.
See: Idakwo v. Ejiga (2002) 12 MJSC 81; Samba Petroleum Ltd v IMB Plc. (2010) 5-7 (PT. 1) MJSC 103. PER OTISI, J.C.A.

THE FUNDAMENTAL RIGHT TO A FAIR HEARING

ONYEKACHI A. OTISI J.C.A. (Delivering the Lead Ruling): The Appellants/Applicants were, by Ruling in HEK/MISC.90/2010, granted an order for stay of execution of the Judgment of the High Court of Akwa Ibom State, sitting of Eket, delivered in Suit No HU/28/2005, upon certain conditions. The Appellants/Applicants, dissatisfied with the said conditions, filed this application seeking:
1. An Order to set aside or vary the conditions granted by the Akwa Ibom State High Court Eket on 19/5/11 in Suit No HEK/MISC.90/2010 for a stay of execution of the Judgment of the said High Court in Suit No HU/28/2005 delivered on 1/2/10 pending the determination of the Appeal to this Court against the said Judgment.
2. Such further order(s) as this Honourable Court may deem fit to make in the circumstances.
In support is an affidavit deposed to by Mr. Okon Udo, Chief Litigation Officer in the Ministry of Justice, State Secretariat, Uyo, Akwa Ibom State. Annexed to the affidavit are Exhibits OU1, OU2, OU3, OU4, and, OU5. The facts leading to this application, as set out in the supporting affidavit, are as follows:
The Appellants/Applicants were the defendants in Suit No HU/28/2005, decided on 1st February, 2010 by the lower court in favour of the Respondents/Respondents, who were the plaintiffs in the lower court. The lower court had awarded in favour of the Respondents/Respondents, as general damages, the sum of N20million; and costs of N30, 000.00.
The Appellants/Applicants filed a motion for stay of execution of the said judgment in the lower court pending appeal. But before the motion was heard, the Records of Appeal were transferred to this Court on 20th August, 2010. The State Counsel, Bassey Ekanem Esq., who had been handling the matter, thereupon abandoned the motion. Another State Counsel, apparently unaware of this development, appeared in the lower court and moved the motion for stay of execution. The lower court granted the application for stay of execution on the condition that the judgment debt should be deposited in the Bank. The Honourable Attorney General of Akwa Ibom State was unaware of the said Order until their Brief of Argument had been filed.
The reasons for seeking a variation of the condition set by the lower court are that the said the condition is onerous, harsh and difficult to fulfill in view of the present economic situation in the State. That it is in the interest of justice that execution of the judgment be stayed unconditionally pending the determination of the appeal against the judgment.
The Appellants/Applicants further deposed that unless the execution of the judgment is stayed unconditionally, the Appeal may be rendered nugatory. That to deposit such a large amount of money in any Bank will deprive the Appellants/Applicants of funds to use for other urgent purposes. That they cannot afford to part with such funds at this time because of the dwindling state of economy of the 3rd Appellant/Applicant. That no budgetary provision was made for the Judgment sum by the 3rd Appellant/Applicant in the present year’s budget; and that to take away that amount of money of money will deprive other citizens of their rights; as well as prevent the 3rd Appellant/Applicant from performing its primary responsibilities.
The Respondents/Respondents filed a counter affidavit denying the averments of the Appellants/Applicants, and, annexing one exhibit, marked Exhibit 1.
Bassey J. Ekanem Esq., State Counsel, Ministry of Justice, Uyo, Akwa Ibom State filed a written address for the Appellants/Applicants in which they raised for determination the following issues:
1. Whether the fact that the trial court had granted the Applicant’s application for stay of execution, though conditionally, can prevent the Applicants from filing an application in this Court seeking for a variation or setting aside of the conditions.
2. Whether from the facts as deposed in the Affidavit in support of this application, if would be in the interest of justice to set aside or vary the conditions for the stay of execution of the said judgment granted by the lower court pending the determination or outcome of the Applicant’s Appeal to the Court of Appeal.
On Issue I, learned State Counsel relied on Order 7 Rule 3 of the Court of Appeal Rules 2011, Section 17 of the Court of Appeal Act, 2004 to submit that applications of this nature may be made. He also relied on Tidex (Nig) Ltd. vs. Maskew (1997) 1 NWLR (PT 482) 453; Ladipo vs. Aminike Investment Co. Ltd (1998) 4 NWLR (PT 546) 496: Aje Printing (Nig) Ltd vs. Ekiti LGA (2009) 7 NWLR (PT 1141) 512.
On issue No 2, he relied on the averments in the supporting affidavit and submitted that it would be in the interest of justice to allow the application, and, hear the appeal, upon the Respondents filing their Respondents’ Brief. Sylvanus A. Obot Esq. of Counsel for the Respondents/Respondents filed a written address in which he raised 2 Issues for determination as follows:
1. Whether this Honourable Court has power to hear and determine this application same being incompetent and abuse of court process and judicial powers.
2. Whether in the circumstances of this case the Applicants have disclosed any compellable ground to warrant this court to vary or set aside the discretionary Order of the lower court made on 19/5/2011 by Hon Justice Charles Ikpe.
On Issue No 1, he submitted that this Court lacks jurisdiction to entertain the instant application on the grounds that the application is brought in utmost bad faith and constitutes on abuse of court process. That matters arising from the State High Court can only be entertained by the Court of Appeal upon on appeal being duly filed. That there being no appeal filed against the Order of the lower court made on 19/5/2011, the prayer to vary the conditions in the said Order cannot be made pursuant to Section 17 of the Court of Appeal Act. That this application is brought under a wrong law and is therefore incompetent: and should be struck out.
On Issue No 2, he submitted that no compellable reason has been given to warrant the grant of the application. That the order of the lower court made on 19/5/2011 was an equitable discretionary order exercised in accordance with the law, specifically, Order 55 Rule 2(1) and (2) of the High Court Rules of Akwa Ibom State 2009. That this Court cannot easily interfere with the findings of fact made by the trial court unless such findings are perverse or not supported by evidence on record or based on evidence not legally admissible. He relied on Ekeh v. Amechi (2010) ALL FWLR (PT 512) 1132 at 1154: Owor vs. Christopher (2010) ALL FWLR (PT 511) 962; Mobil Producing Nigeria Ltd vs. Udo (2008) ALL FWLR (PT 421) 951.
The issues raised for determination by the parties are similar. However, upon consideration of the affidavits and submissions of Counsel for the respective parties, this Court directed that it be addressed on the following issue, which the Court suo motu raised and considered germane to this application:
Whether the Akwa Ibom State High Court Eket had jurisdiction to make the orders it made on 19/5/2011 in Suit No. HEK/MISC.90/2010 in an application for a stay of execution of the judgment of the said High Court in suit No HU/28/2005 delivered on 1/2/10 pending the determination of the Appeal to this court, the Record of Appeal having been received in this Court on 20/8/2010.
Upon this direction, the Appellants/Applicants filed a further address on 18/3/2013: while the Respondents/Respondents filed a further address on 25/3/2013. The Appellants/Applicants filed a Rejoinder a 3/4/2013. These addresses were adopted by respective Counsel on 28/5/2013.
As deposed by the Appellants/Applicants in paragraph 9(b) of the affidavit filed in support of their motion, their appeal against the Judgment of the lower court was entered in this Court on 20th August, 2010: but the motion for stay of execution was moved by the State Counsel who appeared, and was determined by the lower court, without regard to this fact. Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 provide that:
10. An appeal shall be deemed to have been entered in the Court when the Record of Proceedings in the court below has been received in the Registry of the Court.
11. After an appeal has been entered and until if has been finally disposed of the Court shall be seized of the whole of the proceedings as between the parties thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the court below, but any application may be filed in the court below for transmission to the Court.
An appeal is said to be entered when all the records of appeal is transmitted from the lower court to this Court; and received in the Registry. After an appeal has been entered, all applications are made to the appellate court, even though an application maybe filed in the lower court for proper transmission to the appellate court. At that stage, the lower court no longer has jurisdiction to entertain any application brought in respect of the matter. See: Esiri vs. Idika (1987) 4 NWLR (PT 66) 503.
The records of this Court indeed show that the Record of Appeal was received in this Court on 20th August, 2010:
Additional Records of Appeal was received in this Court on 1st June, 2011. The Ruling on the application for stay of execution, which conditions are sought to be varied, was delivered on 19/5/2011.
Both the Appellants/Applicants and the Respondents/Respondents have conceded that the lower court no longer had jurisdiction to continue to hear the pending application for stay of execution or even deliver to its Ruling thereon on 9/5/2011. The Orders of the lower court were therefore made without jurisdiction.
Jurisdiction is the authority a Court has to entertain any matter. If a court acts without jurisdiction, its decision is a nullity and liable to be set aside. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ike v. Nzekwe (1975) 2 SC 1: Mustapha v. Governor of Lagos State (1987) 5 SCNJ. 14: Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 715.The Respondents/Respondents in their address raised a fresh issue, by submitting that the Appellants/Applicants, who are the judgment debtors, ought not to remain in custody of the judgment debt while the appeal is pending. It is submitted that in the circumstance of this case, this Court could, upon Section 15 of the Court of Appeal Act, direct the Appellants/Applicants to release and pay the judgment debt into the registry of this Court, pending the determination of the appeal. It is submitted that this Court may, in order to achieve substantial justice, make such order without waiting for a formal application.
Learned Counsel for the Appellants/Applicants stoutly opposed this application in their rejoinder.
There is no doubt that an application may be made before this Court for the payment of the judgment sum into the registry of this Court within the Rules of Court. Order 7 Rule 1 of the Court of Appeal Rules provides that:
Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
The consideration of every such application must conform to the fundamental constitutional requirements of fair hearing, which implies that such application must be sewed on the other party, to give him opportunity to respond thereto. The right to fair hearing is guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. Fair hearing is a hearing which is fair to all parties to the suit, giving each one an opportunity to be heard, whether the party be the plaintiff, or the defendant, the prosecution or the defence, the applicant or the respondent.
See: Idakwo v. Ejiga (2002) 12 MJSC 81; Samba Petroleum Ltd v IMB Plc. (2010) 5-7 (PT. 1) MJSC 103.
An application cannot be made through the back door, as it were, in an address filed in proceedings to consider another motion; without giving the other party appropriate opportunity to respond to the motion. Such application must be supported by affidavit evidence, while giving the other party on opportunity to be similarly heard in response. The new points raised by the Respondents/Respondents cannot therefore be considered at all in this Ruling.
I am therefore of the firm view, upon these considerations, that the orders made by the lower court on 19/5/2011 ought to be set aside, being a nullity.
Accordingly, it is hereby ordered that:
The Ruling delivered by the Akwa Ibom State High Court Eket on 19/5/11 in Suit No.
HEK/MISC.90/2010 in an application for a stay of execution of the Judgment of the said High Court in Suit No HU/25/2005 delivered on 1/2/10 pending the determination of the Appeal to this Court against the said Judgment is hereby set aside.

MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead ruling written by my learned brother, Onyekachi A. Otisi, JCA, in respect of this application, I am in agreement that pursuant to the provisions of Order 4, Rules 10 and 11 of the Court of Appeal Rules 2011, the moment an appeal is entered in the court by the receipt of the compiled records of the appeal in the Registry of the court from the lower court or compiled and transmitted by any of the parties (most often the Appellant), the court takes over complete control of the proceedings in respect of the appeal as between the parties. The clear legal and judicial implication is that from the date of the receipt of the record of the proceedings of a case conducted by a trial court which comprises or contains all the initialing and other processes filed by the parties and dealt with or considered, all record of evidence, oral or documentary used during the trial and the final decision of the trial court as well as the notice of appeal filed in that court, etc, in the Registry of the Court, all subsequent proceedings have been taken over by the court which assumes jurisdiction over them thence, until the appeal is finally disposed of by the court. The receipt of the record of the appeal by the Registry of the Court therefore vests the court with complete power and authority over the appeal and divests the trial court from which the record was transmitted or sent of the judicial power, or authority over any proceedings which relate to or in respect of the subject of the appeal; which primarily, is the judgment of the trial court appealed against to the court.
From the receipt of the record of the appeal, it is the court which has the requisite judicial power and authority to consider and determine any processes filed in respect of the subject matter in the appeal filed by any of the parties thereto and no longer or not the trial court. As a result, subsequent processes can only validly be filed by the parties in the Registry of the court and may only be filed in the trial court for onward transmission by the registry of that court, to the court. The provisions of Order 4, Rules 10 and 11 leave no doubt about the control of proceedings when an appeal has been entered for they unequivocally and unambiguously provide that:
“4. (10) An appeal shall be deemed to have been entered in the court when the record of the proceedings in the court below has been received in the Registry of the court.
(11) After an appeal has been entered and until it has been fully disposed of, the court shall be seized of the whole of the proceedings as between the parties thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the Court”.
From these provisions, it is clear that upon receipt of the record of the proceedings from the court below by the Registry of the court, proceedings in the court in respect of the appeal, shall have commenced and the court controls them until the appeal is finally disposed of by it. “Every application therein, shall be made to the court and not to the court below.” The use of the word “shall” in the provisions imports a command and what is legally mandatory thereby excluding expressly, any form of discretion in the filing of every application therein. See Mokelu v Fed. Comm. For Works & Housing (1976) 3 SC, 35; Ifezue v. Mbadugha (1984) SCNLR, 89; Omokiodo v I.G.P. (1999) 6 NWLR (607) 469. Even in the discretion to file an application in the court below for onward transmission to the court, the application must be made to the court and not to the court below, but only filed thereat for onward transmission to the court. Such an application cannot properly be made to the court below for onward transmission to the court because the court does not deal with applications made to other courts under its Rules. See Olatunji v. Owena Bank Plc. (2005) 5 NWLR (760) 325 at 337; Eddy-Vic Motels v. Flare’s Security (2006) 2 FWLR (313) 264; Ogwueche v. Mba (1994) 4 NWLR (336) 75.
As stated in the lead ruling, the record of appeal in respect of the appeal to which his application relates, was received in the Registry of the court on 20/8/2010 by which date the appeal was deemed entered in the court under Rule 10 above. From that date, the power and authority over the proceedings in respect of the subject matter of the appeal became vested completely in the court and removed from the High Court entirely and an application could only be or have been validly made to the court by filing it directly in the Registry of the court or at the court below for the purpose of sending it to the court only, for consideration and determination, See Econet Wireless Ltd. V. Econet Wireless Nig. Ltd. (2006) ALL FWLR (300) 1601; Olarunyolemi v Akhagbe (2010) 8 NWLR (1195) 48. So when the High Court purportedly considered and determined the application for stay of the judgment made to it after the record of proceedings from it were received in the Registry of the court on the 20/8/2010, and the power and authority to consider and determine any application in respect of the appeal had become completely and exclusively vested in the court by the provisions of its Rules, no valid application could have been made to it in that regard, In the absence of a valid application before it, the High Court lacked the requisite vires to have made a valid order in respect of the subject matter of the appeal since it was no longer before it and had become judicially functus officio about it.
For the above and the better reasons set out in the lead ruling, I join in setting aside the orders made by the High Court in the application made to it when and long after the appeal had been entered in the court which had thereby became seized of the whole proceedings as between the parties to the appeal.
In addition, and for the record, I have noted that the learned counsel had in his address raised and argued the issue that the present application is an abuse of the court process because the Appellants did not appeal against the order of conditional stay made by the High Court before making the application. In law, abuse of court process is a term generally applied to a process or proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive. It can also mean abuse of legal procedure or improper use of legal process of a court and can manifest itself in so many ways. However, it always involves some deliberateness or willful desire to misuse or pervert the system of administration of justice or improper use the judicial process to the irritation or annoyance of another party. See Saraki v. Kotoye (1992) 9 NWLR (264) 156 at 188; Ohitirin v. Agaka (1998) 6 NWLR (554) 366 at 375; Okafor v Attorney General, Anambra State (1991) 6 NWLR (200) 659. The law is also settled that the court has the inherent jurisdiction to prevent or stop the abuse of its process. See Orubo v Aiyeleru (1993) 3 NWLR (280) 126; Onyeabuchi v INEC (2002) 8 NWLR (769) 417; Olawore v. Olanrewaju (1998) 1 NWLR (534) 436.

Now, an application for stay of the execution of a judgment with which a party is dissatisfied and against which he had filed a valid notice of appeal, is a legitimate and recognised right of such a party as an interlocutory application in the prosecution of the appeal. Order 55 of the Akwa Ibom State High Court (Civil Procedure Rules) 2009, provides that an application for stay of execution of a judgment or decision appealed from may be made to a Judge of that court.
Under the provisions of section 17 of the Court of Appeal Act, 2004, an appeal shall not operate as a stay of execution but the court is vested with the discretionary power to order a stay of execution of a decision or order made at lower court, either unconditionally or upon the conditions which it may impose. Thus, an application for stay of execution is a proper and recognised process of both the High Court under its Rules and this court, under the Court of Appeal Act and cannot rightly be said to be an abuse of the court’s process.
Furthermore, there is no requirement of law either in the High Court or this court that an appeal against an order by the High Court for stay of execution is a condition precedent to the application before this court for variation of the conditions imposed by the High Court in its order or setting the said order aside. As a post judgment procedure for the High Court and an interlocutory application in the appeal for the court, it is an application which could be made to both courts as permitted by and in accordance with the Rules of the two courts. A further application for stay or variation of an order for stay of execution made by the lower court, to this court is therefore one permitted and allowed for an Appellant pending the determination of his appeal by this court. See Fawehinmi v. Akilu (1990) 1 NWLR (127) 474; Okafor v. Nnife (1987) 4 NWLR (64) 129; Mobil Prod. Unltd. V. Monokpo (2001) 18 NWLR (744) 212. The application is in the above premises, not an abuse of the court process, it is competent and the court has the requisite power to entertain it.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the Ruling just delivered by my learned brother Onyekachi A. Otisi JCA. I am in total agreement that once an appeal is entered in the Court of Appeal, the High Court loses the necessary vires to deal with the case. The Appellate court takes complete control of all the proceedings concerning the case.
Once an appeal is entered in the Appellate Court, the Lower Court ceases to have jurisdiction on the matter anymore. For this and all the more robust reasons giving in the lead Ruling, I too must set aside the orders of the Lower Court.

Appearances

Bassey J. Ekanem, Esq. Asst. Director, Ministry of Justice,
Uyo, Akwa Ibom StateFor Appellant

AND

Sylvanus A. Obot, Esq.For Respondent