IMUSE & ANOR v. OJEZUA & ORS (2020)

IMUSE & ANOR v. OJEZUA & ORS

(2020)LCN/14017(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/05/2020(R)

Before Our Lordships:

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

1. COL DAVID IMUSE (RTD) 2. LAWRENCE OKAH (For Himself On Behalf Of The Members Of The Purported State Working Committee Of All Progressive Congress, Edo State Chapter Who Purportedly Suspended/Removed The 1st Plaintiff As The Chairman Of Edo State Chapter Of The Party) APPELANT(S)

And

1. ANSELEM OJEZUA ESQ, 2. KENNETH ASEKHOME (Deputy Chairman, All Progressive Congress, Edo State Chapter) 3. DR. AISOSA AMADASUN (State Organizing Secretary All Progressive Congress, Edo State Chapter) (For Themselves And On Behalf Of The State Executive Committee, Edo State Save For Those Who Expressly Dissent Or Dissociate Themselves) 4. MALLAM LAANRE ISSA-ONILU (National Publicity Secretary, All Progressive Congress (APC) (For Himself And On Behalf Of The National Working Committee Of All Progressive Congress (APC) RESPONDENT(S)

RATIO

THE TERM “ABUSE OF COURT PROCESS”

It is to be pertinently borne in mind and always too that whenever the issue of abuse of Court process is raised by one party against the other party, the term ‘abuse of Court process’ for lack of a precise or concise definition, denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition, and this is so because what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations. In my view such an issue is better heard and determined expeditiously to ascertain the bona fide of the Court processes before its merit is considered and determined by the Courts. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319;Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225. PER GEORGEWILL, J.C.A.

THE FUNDAMENTAL ISSUE OF JURISDICTION OF THE COURT

Interestingly, so fundamental is the issue of abuse of Court process that it has over the years assumed the toga of a jurisdictional issue with the capacity to terminate a proceeding or suit or matter in limine by way of dismissal, since no Court of law has the jurisdictional competence to hear and determine on the merit a suit or matter or cause founded on the abuse of its process. Thus, once the issue of abuse of Court process is raised, it is important that such an issue is resolved immediately to determine the bona fide of the suit or matter or cause before the Court. SeeAfrican Reinsurance Corp. V. JDP Construction (Nig) Ltd (2003) 13 NWLR (PT 838) 609. See also Dogari V. Waziri & Anor. (2016) LPELR – 40320 (CA) @ pp. 30 – 31; Dingyadi & Anor V. INEC &Ors. (2011) LPELR – 950 (SC) @ pp. 38 – 39; Ogbonmwan V. Aghimien (2016) LPELR – 40806 (CA) @ p. 22; Ogoejeofo V. Ogoejeofo (2006) 3 NWLR (Pt. 966)205 SC.

In law, the issue of jurisdiction is a threshold one and this is so because jurisdiction, as it has been well accepted in our law, is the very basis and live wire of every cause or matter before the Court, be it trial or appellate Court. Due to its fundamental nature in the litigation process, notwithstanding at whatever level of the hierarchy of Courts in the land, it can be raised at any stage of the proceedings either by the parties or even suo motu by the Court and once it is raised, the Court is obligated to determine it first one way or the other since it is indeed the life giving spirit of every judicial proceedings or process in the Court and without which there can be no validity or competence in any judicial proceedings or process. See Petro Jessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 1 NWLR (Pt. 244) @ p. 693, where the Supreme Court puts it so succinctly thus:
“Jurisdiction is the very basis on which any tribunal tries a case. It is the life line of all trials. A trial without jurisdiction is a nullity”
See also Madukolu V. Nkemdilim (1962) 2 All NLR 581; Essien V. Essien (2010) All FWLR (Pt. 523) 1199. PER GEORGEWILL, J.C.A.

WHETHER OR NOT AN APPEAL AUTOMATICALLY OPERATES AS A STAY OF PROCEEDINGS

Now, generally, or should I say ordinarily, in law an appeal does not automatically operates as a stay of proceedings of the cause or matter before the Court below. Thus, in an application seeking a stay of proceedings pending the determination of an appeal, an applicant must, and is under a duty, to show by his affidavit evidence and grounds of appeal the existence of special circumstance(s) that would warrant the intervention of this Court to order a stay of proceedings pending the determination of the appeal pending before this Court. Thus, strictly speaking an interlocutory application to stay a pending proceeding in a legally constituted Court of law is an antithesis to the very fundamental principle in the due administration of justice that justice delayed is justice denied and so it must be carefully considered and only very thoughtfully granted by the Courts. It is not and can never be a matter of course just for the asking! It must be granted only on proof of special circumstance(s) by the supplicant for it.
Over the years, certain principles have crystallized to guide the Courts in the consideration and determination whether or not to grant an order of stay of proceedings pending appeal. These principles, though not in any way intended to be exhaustive, includes the following, namely: (1) the action sought to be stayed must be shown not only that it might fail, but that it cannot possibly succeed or that for some reasons, it ought not to go on; (2) the action is shown to be frivolous, vexatious or an abuse of the process of the Court; (3) no cause of action is disclosed; and (4) there is need to preserve the res from being destroyed and consequently to prevent undue hardship. It must be pointed out once that each of the above conditions, if proved, would constitute special circumstances to warrant the intervention of this Court to grant an application for stay of proceedings pending appeal. Thus, the duty is on the Court in an application for stay of proceedings pending appeal to consider very dispassionately the competing rights of the parties to justice and the demand of justice to preserve the rest pending the determination of the appeal, so that the appeal if successful should not be rendered nugatory. This duty foists on the Court the herculean task of exercising its discretion both judicially and judiciously with one view in mind, and that is the dispensation of justice according to law. Authorities on this point of the law are legion as are replete in our law reports! See Joe Adole Okotie – Eboh & Anor V. Mrs Alero Jadesimi & ORS (1999) LPELR-6669 (CA). See also Deduwa of Ors. V. Okorodudu & Ors. (1974) 1 All NLR (Pt. 1) 272; Kigo (Nig.) Ltd. V. Holman Bros. (Nig.) Ltd. (1980) 5 -7 S.C. 60; Chief Jonas Agu & Anor V. COP (2016) LPELR-40026(CA); Obi V. Elenwoke (1998) 6 NWLR (Pt. 554) 436; Okem Enterprises Nigeria Limited & ANOR V. NDIC (2002) LPELR-5995 (CA); Kotoye V. Saraki (1993) 5 NWLR (Pt. 296) 710;Obikoya V. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157;Lonestar Drilling Nigeria Limited V. Triveni Engineering & Industries & Ors(1998) LPELR-6433(CA); Gomwalk V. Okwuosa (1996) 3 NWLR (pt.439) 681; Hallmark Bank Ltd. V. Akaiuso (1995) 5 NWLR (Pt.395) 306; Okorodudu V. Okoromadu (1977) 3 S.C. 21. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This ruling is in respect of two applications one each filed by the Appellants as Applicants on the one hand, and the 1st – 3rd Respondents as Applicants on the other hand. Both applications, though not consolidated, were heard together by the Court and each reserved for ruling.

In the substantive appeal, the Appellants are appealing against the Ruling of the High Court of Edo State, Coram: V. O. A. Oviawe J., in Suit No. B/177OS/2019 Anselem Ojezua Esq., & Ors V. Col. David Imuse (Rtd) & Ors, delivered on 18/12/2019, wherein the application by the Appellants challenging the competence of the 1st- 3rd Respondent’s Suit was dismissed for lacking in merit. See pages 762 – 819 of the Record of Appeal.

The Appellants, who were the 1st – 2nd Defendants before the Court below, were peeved with the said ruling and had promptly appealed against it to this Court vide their Notice of Appeal filed on 19/12/2019 on Three grounds of appeal at pages 820 – 826 of the Record of Appeal. The Record of Appeal was deemed properly compiled and transmitted to

this Court on 30/1/2020.

In the meantime, on the one hand the Appellants as Applicants filed a Motion on Notice on 27/1/2020 praying for an Order setting aside the proceedings of the Court below and a further Order staying the proceedings of the Court below pending the determination of the substantive appeal. The motion was supported by an affidavit of 10 paragraphs deposed to by one Justice Osawe. In opposition, on 12/2/2020 the 1st – 3rd Respondents filed a counter affidavit of 33 paragraph deposed to by one Santos Owootori, Esq. In response, on 14/2/2020 the Appellants filed a further and better affidavit of 5 paragraphs deposed to by one Justice Osawe.

On the other hand, the 1st – 3rd Respondents as Applicants filed a Motion on Notice on 30/1/2020 praying for an Order refusing to hear the substantive appeal of the Appellants and a further Order remitting the substantive suit to the Court below for expeditious hearing and determination on the basis of accelerated hearing or alternatively an Order abridging the time for the filing of briefs in the substantive appeal so that it may be heard and determined by this Court expeditiously. The motion is

supported by an affidavit of 17 paragraphs deposed to by one Kenneth Chuks Nzediegwu. In opposition, on 7/2/2020 the Appellants as Respondents filed a counter affidavit of 6 paragraphs deposed to by one Justice Osawe.

On 17/2/2020, both applications came before the Court for hearing. At the hearing of the Appellants/Applicants’ Motion on Notice filed on 27/1/2020, Douglas Ogbankwa Esq., learned counsel for the Appellants as Applicants, appearing with Famous Osawaru Esq., withdrew prayer one on the motion paper, which being not opposed was consequently struck out, and orally argued the application in terms of prayer two only and urged the Court to grant the Appellants’ application. In reply, Ken Mozia SAN, learned Senior Advocate for the 1st – 3rd Respondents, appearing with Mrs. M. I. Mozia, Santos Owootori Esq., Esther Olatunji Esq., and R. O. Odediran Esq., orally argued his opposition to the Appellants’ application and urged the Court to dismiss the same for lacking in merit. On his part, O. A. Eghareba Esq., holding the brief of Audu Anugo Esq., learned counsel for the 4th Respondent, had no objection to the Appellants’ application

At the hearing of the 1st – 3rd Respondents/Applicants’ Motion of Notice filed on 30/1/2020, Ken Ken Mozia SAN, learned Senior Advocate for the 1st – 3rd Respondents as Applicants, appearing with Mrs. M. I. Mozia, Santos Owootori Esq., Esther Olatunji Esq., and R. O. Odediran Esq., withdrew the alternative prayer on the motion paper, which being not opposed was consequently struck out, and orally argued the application in terms of prayers (a) and (b) and urged the Court to grant the 1st – 3rd Respondents’ application. In reply, Douglas Ogbankwa Esq., learned counsel for the Appellants as Respondents, appearing with Famous Osawaru Esq., orally argued his opposition to the 1st – 3rd Respondents’ application and urged the Court to dismiss same for lacking in merit. On his part, O. A. Eghareba Esq., holding the brief of Audu Anugo Esq., learned counsel for the 4th Respondent, had no objection to the 1st – 3rd Respondents’ application.

BRIEF STATEMENT OF FACTS
On 21/11/2019, the 1st – 3rd Respondents as Claimants had instituted an action before the Court below by way of Originating Summons against the Appellants

as Defendants seeking answers to some questions and consequent thereon praying for some reliefs thereto. These questions and reliefs are as follows, namely:
(1) Whether by the provisions of Articles 13.8, 21B(i) – (v) e and D(vi) of the Constitution of All Progressives Congress, 2014 (As Amended), the 2nd Defendant purporting to act as the State Working Committee have the requisite powers to suspend of remove the 1st Claimant from the office of the Chairman, Edo State Chapter of the party or purport to do so without the ratification/concurrence of its Edo State Executive Committee or without adherence to due process.
(2) Whether by virtue of the Provisions of Articles 13.8, 21, 21(D)(vi) of the Constitution of All Progressives Congress (APC), the State Working Committee of the Edo State Chapter of the Party can purport to suspend or remove the 1st Plaintiff from office as the Edo State Chairman of the Party under any circumstance and/or without granting him fair hearing or any hearing at all.
(3) What is the effect of the 2nd Defendant being the State Working Committee of All Progressives Congress (APC), Edo State, purporting to exercise

disciplinary powers over the 1st Claimant without reference to the State Executive Committee, Edo State Chapter of the said Party Constituted by the Claimants and without compliance with the Constitutional dictates of fair hearing also enshrined in the Party Constitution and in the constitution of the Federal Republic of Nigeria.
(4) Whether the 3rd Defendant (National Working Committee) as opposed to the National Executive Committee of All Progressives Congress (APC), can validly purport to exercise any disciplinary action or purport to ratify the alleged disciplinary action on the 1st Plaintiff by the State Working Committee of the Party under and by virtue of the provisions of Articles 13.3(v) and 13.4 of the Constitution of the Party.
(5) Whether by virtue of the provisions of the constitution of All Progressives Congress, 2nd Defendant being the State Working Committee of the party can purport to appoint the 1st Defendant as the Acting or Sustentantive Chairman of All Progressives Congress (APC), Edo State while the tenure of the 1st Claimant as Chairman is still extant.

In the event that the above questions are resolved in favour of the

1st – 3rd Respondents as Claimants, they then claimed the following reliefs against the Appellants as Defendants jointly and severally, namely:
A. A DECLARATION that by the provision of Article 2, 21(B)1(i) – (iv), (e) and purported suspension or removal of the 1st Claimant from the office of the D(vi) of the Constitution of All Progressives Congress, 2014 (As Amended) the State Chairman, All Progressives Congress, Edo State by 1st and 2nd Defendants purporting to act as its State Working Committee is ultra vires their powers to so do and is therefore null, void and of no effect.
B. A DECLARATION that the National Working Committee of the All Progressives Congress (APC) lacks the powers under the Constitution of the Party to purport to ratify or uphold the purported suspension and removal of the 1st Claimant as the Chairman of All Progressives Congress, Edo State in breach of the provisions of the Party’s Constitution.
C. A DECLARATION that the purported ratification/upholding by the National Working Committee (NWC) of All Progressives Congress (APC), of the purported suspension/removal of the 1st Claimant upon a purported notification

allegedly sent to the National Working Committee (NWC) by the 2nd Defendant i.e the Edo State Working Committee of the party, is null, void and of no effect whatsoever.
D. A DECLARATION that the disciplinary action of suspension/removal of the 1st Claimant from the office of the State Chairman, All Progressives Congress (APC) (Edo State) by the State Working Committee of the Party was done in flagrant violation of his right to fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria and the provisions of the Constitution of the Party and is thus null, void and of no effect.
E. AN ORDER setting aside the Resolution made on 11/11/2019 issued by the 2nd Defendant (State Working Committee) purportedly suspending or removing the 1st Plaintiff as Chairman of All Progressives Congress (APC), Edo State Chapter.
F. AN ORDER OF INJUNCTION RESTRAINING the National Executive Committee and/or the National Working Committee of All Progressives Congress (APC) from acting upon or recognizing or from continuing to act upon or recognize any purported resolution for the suspension or removal of the 1st Claimant as Chairman of the All

Progressives Congress (APC), Edo State Chapter.
G. AN ORDER declaring the purported appointment of the 1st Defendant as the Chairman of All Progressives Congress (APC), Edo State as null and void and of no effect whatsoever.
See pages 1 – 3 of the Record of Appeal.

Alongside the Originating Summons, the 1st – 3rd Respondents as Claimants also filed a Motion Exparte praying for an order of interim injunction directing that the Status Quo as at 10/11/2019 with regards to the Chairmanship of All Progressives Congress(APC) Edo State Chapter be maintained by the parties pending the hearing and determination of the Motion on Notice praying for interlocutory injunction.

The 1st – 3rd Respondents at the same time also filed a Motion on Notice praying for the following reliefs, namely:
1. An Order of Interlocutory Injunction restraining the 1st Defendant/Respondent from parading himself as the Acting Edo State Chapter of the All Progressives Congress, taking any steps howsoever to act or present himself as its Chairman pending the hearing and determination of the substantive suit.
2. An Order of Interlocutory Injunction restraining

the 2nd & 3rd Defendants sued as representatives of the National Executive Committee and State Working Committee (Edo State Chapter) of All Progressives Congress (APC) by themselves, their servants, agents, officers or privies from acting or continuing to act upon any purported resolution for the suspension or removal of the 1st Claimant as Chairman of All Progressives Congress, Edo State Chapter, pending the hearing and determination of the substantive suit.
See pages 81 – 158 of the Record of Appeal.

Pursuant to the Motion Ex – parte, the 1st – 3rd Respondents as Claimants obtained an Order of interim injunction of maintenance of the status quo against the Appellants as Defendants, who in response filed a Motion on Notice praying for an Order of the Court below setting aside the ex – parte order made on 22/11/2019 directing that the status quo as at 10/11/19 with regards to the Chairmanship of APC Edo State Chapter, be maintained pending the hearing and determination of the Motion on Notice praying for an Order of Interlocutory Injunction. See pages 233 of the Record of Appeal.

The Appellants as 1st and 2nd Defendants proceeded to file a

Notice of Preliminary Objection challenging the competence of the 1st – 3rd Respondents’ praying as follows, namely:
i. That the suit as constituted is incompetent and ought to be struck out or dismissed.
ii. That the Honourable Court lacks the jurisdiction to entertain this suit as constituted.

The Grounds of the Notice of Preliminary Objections were as follows, namely:
1. That the question of suspension or removal of the 1st Plaintiff as Chairman of the All Progressive Congress (APC), Edo State Chapter is purely the domestic affair of the APC and therefore outside the jurisdiction of this Honourable Court to entertain this suit as constituted in line with a plethora of Court decisions.
2. That the suit as constituted is inchoate and the Court lacks jurisdiction to hear same.
3. That the Originating Summons issued is incompetent as a commencement of action mode in this suit and the Court therefore lacks jurisdiction to determine same as constituted.
4. That the suit as constituted is incompetent in that the Plaintiffs’commenced this action against the resolution taken by the State working Committee and National

working Committee of APC and seeking Declaratory Reliefs against such resolutions without joining APC.
See pages 343 – 346 of the Record of Appeal.

The parties filed and exchanged affidavits and counter affidavits on several applications filed by them and pending before the Court below, which heard all the applications together and on 18/12/2019, the Court below delivered its ruling, wherein it dismissed the Appellants as 1st – 2nd Defendants’s application to strike out or dismiss the suit for being incompetent and/or that the Court lacks jurisdiction to entertain same as well as refused to set aside its order of interim injunction made on 22/11/19, hence the appeal by the Appellants/Applicants. See pages 762 – 819 of the Record of Appeal.

ISSUES FOR DETERMINATION
My lords, looking at the prayers on the Motion papers and the oral arguments proffered by counsel for the parties at the hearing of these two applications, and bearing in mind that while the Appellants are by their application seeking a stay of the proceedings of the Court below pending the hearing and determination of their appeal to this Court, the 1st – 3rd Respondents

are by their application seeking a stay of the hearing of this appeal pending the expeditious hearing and determination of their suit before the Court below, it would appear that the 1st – 3rd Respondents’ application ought to and shall be considered and determined first one way or the other before if need be the Appellants’ application, if it survives the onslaught of the 1st – 3rd Respondents’ application, shall be considered on its merit. It is my view therefore, that in each of the two applications only one issue arises for determination, namely:
1. In the 1st – 3rd Respondents’ Motion on Notice field on 30/1/2020: Whether in the light of the provisions of Paragraphs 3, 9 and 10(b) of the Court of Appeal Practice Direction 2013, the Appellants’ appeal going by the three grounds of appeal is one whose hearing ought to be refused or declined by this Court pending the determination of the 1st – 3rd Respondents’ suit by the Court below?
2. In the Appellants’ Motion on Notice filed on 27/1/2020: Whether the Appellants as Applicants have made out a case for the stay of proceedings of 1st – 3rd

Respondents’ suit before the Court below pending the hearing and determination of the Appellants’ appeal by this Court?

Let me proceed anon to consider these two issues ad seriatim!

ISSUE ONE
Whether in the light of the provisions of Orders 3, 9 and 10(b) of the Court of Appeal Practice Direction 2013, the Appellants’ appeal going by the three grounds of appeal is one whose hearing ought to be refused or declined by this Court pending the determination of the 1st – 3rd Respondents’ suit by the Court below?

1ST – 3RD RESPONDENTS /APPLICANTS’ COUNSEL SUBMISSIONS
In his oral submissions, Ken Mozia SAN, learned Senior Advocate for the 1st – 3rd Respondents/Applicants, had submitted that by virtue of Paragraph 10 (B) of the Practice Direction 2013 the interlocutory appeal filed by the Appellants/Respondents is one which ought not to be heard in that it raises no issue of pure law but one of weight of affidavit evidence, which would be more convenient to await the expeditious hearing and determination of the 1st – 3rd Respondents’ suit by the Court below.

It was also submitted that the

Appellants’ appeal is one which falls within Paragraphs 3 and 9 of the Practice Direction 2013 as matters in which interlocutory appeal raising issues of facts which can be conveniently taken up with the appeal arising from the final judgment in a suit should not be heard by this Court and contended that the best way forward in the interest of expeditious dispensation of justice to both parties is for the Court to decline to hear the interlocutory appeal while making an order for accelerated hearing and determination of the suit before the Court below and urged the Court to so hold and to grant the 1st – 3rd Respondents/Applicants’ application to strike out the appeal and remit the 1st – 3rd Respondents/Applicants’ Suit to the Court below to await the final judgment of the Court below. Learned SAN referred to Paragraphs 3, 9 and 10 (B) of the Court of Appeal Practice Direction 2013.

APPELLANTS/RESPONDENTS’ COUNSEL SUBMISSIONS
In his oral submissions in opposition to the application, Douglas Ogbankwa Esq., learned counsel for the Appellants/Respondents, had submitted that the crucial issues raised by the grounds of appeal are

fundamental issues of jurisdiction, which by virtue of the proviso to Paragraph 10 (B) of the Court of Appeal Practice Direction 2013 ought to be heard and determined expeditiously by this Court, being issues of pure law and contended that in law such an appeal ought not await the final judgment in the substantive suit before the Court below and urged the Court to so hold and to dismiss the 1st- 3rd Respondents/Applicants’ application for lacking in merit and to expeditiously hear and determine the appeal on the merit.

RESOLUTION OF ISSUE ONE
My lords, issue one seeks to put an end to the hearing and determination of the Appellants/Respondents’ appeal so that same may await the final judgment in the 1st – 3rd Respondents/Applicants suit now pending before the Court below. Happily, the contending contention between the parties in this application is rather a very straight forward one devoid of any much complication.

Now, while to the 1st – 3rd Respondents/Applicants, the entire appeal of the Appellants/Respondents is one founded on matter of facts which by the provisions of the Practice Direction 2013 ought not to be heard but

rather the substantive suit be remitted for expeditious hearing and determination before the Court below, so that all likely grievances with the judgment and rulings of the Court below could be made the subject of an appeal against the final judgment of the Court below, in order to save the precious judicial time of the Courts that could be expended on such an interlocutory appeal not raising any issue of pure law but founded on mere facts, on the other hand, to the Appellants/Respondents this is an appeal which by virtue of the grounds of appeal raises fundamental issues of jurisdiction, which are issues of law and which ought to be expeditiously heard and determined without undue delay that would be occasioned by remitting it to the Court below to await the final judgment in the substantive suit.

To resolve these contending submissions I shall pay close attention to the issues in controversy between the parties as in their copious affidavit evidence in this application to see whether or not this is a proper case in which to apply the provisions of Paragraph 3, 9 and 10 (B) of the Court of Appeal Practice Direction 2013, in order to arrive at a decision

that would best serve the end of justice in the interest of expeditious determination of matters before the Courts.

In the affidavit in support of the 1st – 3rd Respondents/Applicants’ application filed on 30/1/2020, one Keneth Chuka Nzediegwu stated inter alia thus:
4. I am aware that the Appellants/Respondents and the 4th Respondent (as Defendants in the lower Court) filed an application before the lower Court challenging the jurisdiction of the said Court to entertain the substantive action on the premise that it allegedly raised issues touching upon or related to the internal affairs of a political party known as All Progressives Congress (APC).
5. The Applicants herein as the Claimants before the lower Court, contended that the action challenged the validity of a purported resolution of an alleged meeting or an organ of Edo State Chapter of the said party by which the 1st Applicant was stated as having been found guilty of committing several offences with an expressed conclusion that he had been consequently removed as the State Chairman of the party.
7. The purported resolution did not indicate the venue of the alleged

meeting. A copy thereof is exhibited herein and marked as “Exhibit KEM”.
8. I am aware that no Notice or minutes of any meeting of either the State Working Committee or the National Working Committee was produced by the Respondent to this application before the lower Court.
10. Edo State Chapter of All Progressives Congress is currently factionalized with the Applicants herein in support of the State Governor while the Respondents herein are in support of the National chairman of the party.
11. The state primary election to select the candidate of the party at the national election to elect the next governor of the state is scheduled to hold sometime in April this year and the State Chairman of the party plays a major role in the conduct of the said election.
12. Enahoro Aghomon, Esq, of counsel informed me in our office at Plot 87A, Okoro- Otun Avenue, Off Ikpokpan Road, G.R.A., Benin City at 2 pm on 28/1/2020 and I verily believe him that the issues raised in this interlocutory application considered by the lower Court, can be conveniently taken with an appeal against the final judgment if accelerated hearing of the case before the lower

Court is ordered instead.
13. The lower Court granted an application by the Respondents to the application requesting that pleadings be ordered. The statement of claim and accompanying documents has since been filed and copies transmitted to this Hon Court as Supplementary Records of Appeal.
14. I verily believe that a determination of whether or not the right of the 1st Applicant to fair hearing was violated by the production of the purported resolution and if the conduct of the Respondents can be attributable to the political party can be conveniently taken by any party desirous of appealing against the final judgment.
15. I verily believe that the Respondent ploy is to stall a resolution of the issues raised in the case by asserting that the internal mechanisms of the party controlled by the hostile faction at the national level should be exhausted before the Applicants can initiate the action in Court. If that is achieved, the complaint will be inextricably bogged down therein.

In the counter affidavit of the Appellants/Respondents in opposition to the 1st – 3rd Respondents/Applicants’ application, one Justice Osawe stated inter

alia thus:
3. That the 1st Appellant informed me in chambers on 4th February, 2020 at about 1pm and I verily believe him as follows;
a. That paragraphs 4, 5, 6, 7, 8 and 9 of the Affidavit of the 1st to 3rd Respondents/Applicants are matters bothering on the substantive suit before the trial Court and are not relevant to this application as constituted before this Honorable Court.
b. That the subject matter of this Appeal is whether or not the trial Court has jurisdiction to entertain Suit No. B/177OS/2019, not to talk of granting an interim Order in abuse of Court process.
4. That I am further informed by Famous Osawaru, Esq, of Counsel in chambers at 16 Jemide Avenue, GRA, Benin city on 4th of February, 202 at 1.00pm and I verily believe him as follows;
a. That this Appeal, being one that challenges jurisdiction of the Trial Court and capable of disposing of the subject matter of the suit cannot be conveniently taken together with the proceedings in the trial Court at the same time
b. That the challenge to the jurisdiction of the Trial Court is an exceptional matter for which this Honorable Court ought to hear this Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That the 1st to 3rd Respondents would lose nothing if this Appeal is heard in accordance with the Rules of Court as the subject matter of the suit in the trial Court is a dispute bothering on the control of the internal affairs of APC in Edo State. It is neither a dispute arising from the conduct of Primary election nor is it one flowing from the outcome of a general election and is therefore not time bound.
e. The Appellants are prepared to prosecute their Appeal in accordance with the Rules of this Court and have demonstrated this by compiling and transmitting the certified copies of the Record of Appeal within extremely quick period despite the obstacles deliberately created for them by the relevant apparatus of the Trial Court.

Now, at the Court below the parties had joined issues by way of exchange of affidavits and counter affidavits in the Appellants’ Notice of Preliminary Objection as 1st and 2nd Defendants challenging the competence of the 1st – 3rd Respondents’ suit as Claimants before the Court below. Upon the hearing of the said preliminary objection of the Appellants along with the 1st – 3rd Respondents’ Motion

challenging the right of the Appellants to be heard while allegedly being in contempt of the interim order of the Court below, both applications were dismissed by the Court below, holding inter alia thus:
“This is a ruling on the Applications filed by the 1st and 2nd Defendants as well as the 3rd Defendant in this suit, which applications were, by the consent of Counsel to the parties, consolidated and argued together… Accordingly, the issue of whether this action is inchoate or premature or that avenues within the party for a member to seek redress have not been exhausted will be of no moment in the light of the issue submitted to Court which bothers on the civil rights and obligation of a party before the Court, under the Constitution. I hold that the Court is not without jurisdiction and that this suit is competent in the circumstance… On the issue of the prayer setting aside the interim order of injunction, made by this court on 22/11/19, predicated on the abuse of Court process as alleged… In the instant case, no interim advantage or unjust enrichment is alleged to have been obtained from the suit at the Federal High Court sought to

be discontinued or which has infact been discontinued….Firstly, there is no affidavit evidence before me, remotely suggesting that the suit herein has been filed in a jurisdiction with a remarkable reputation such as to lend itself to an abuse of this nature. For another, it has not been shown that this Court was particularly targeted to be a victim of abuse of judicial process….page 819…Accordingly, I am satisfied, upon a consideration of the whole, that there has not been an abuse of Court process by the filing of the present suit which appears to be the only suit now subsisting between the parties……The application to strike out or dismiss the suit for being incompetent and/or that theCourt lacks jurisdiction to entertain same is hereby refused. The application to set aside the order of interim injunction made by this Court on 22/11/19 is hereby refused” See pages 762 – 819 of the Record of Appeal. .

It was against the above ruling of the Court below delivered on 18/12/2019 that the Appellants had on 19/12/2019 promptly appealed to this Court and had subsequently on 27/1/2020 filed their application praying this Court for an order

of stay of proceedings. However, while the said application was pending the 1st- 3rd Respondents had on 30/1/2020 filed the application now under consideration praying the Court to decline or refuse to hear and determine the interlocutory appeal of the Appellants but to remit same to the Court below to await the expeditious hearing and determination of the substantive suit.

In the Notice of Appeal filed on 19/12/2019, the Appellants had raised three grounds of appeal, which without much of their particulars are as follows:
1. The learned trial Judge erred in Law when he held that the Court had jurisdiction to hear the suit arising from a look at the questions contained in the Originating Summons and the reliefs sought therein.
2. The learned trial Judge erred in Law in refusing to set aside the Ex-parte Order made on 22nd November, 2019, directing that the “status quo” as at 10th November, 2019 with regards to the Chairmanship of the All Progressives Congress (APC) Edo State chapter be maintained pending the determination of the Motion on Notice for Interlocutory Injunction on some of the flowing particulars, namely: i. The said Ex-parte Order

was obtained in this-suit-in gross abuse of Court process and in material concealment of facts.
3. The Ruling was against the weight of Affidavit and documentary evidence
See pages 821 – 825 of the Record of Appeal

My lords, I have calmly considered the submissions of counsel for the parties in the light of the three grounds of appeal and the provisions of Paragraphs 3, 6, 9 and 10 (b) of the Court of Appeal Practice Direction 2013 as to its effect on interlocutory appeals, of which the instant appeal is one and looking calmly at grounds one and two they seem to me to raise issues of jurisdiction as in ground one and the issue of abuse of Court process as in ground two of the Notice of Appeal.
By the Court of Appeal Practice Direction 2013, made pursuant to Section 248 of the Constitution of Nigeria 1999 (as amended) by the then Acting President of the Court of Appeal on 1/5/2013, it is provided inter alia thus:
1. This Practice Direction shall, save to the extent and as may otherwise ordered by the President, Court of Appeal, pursuant to Section 248 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), apply to:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Interlocutory appeals challenging the ruling of the Court below on an interlocutory application
2. (a): The purpose of this Practice Direction is to… that will provide for the fair and impartial administration of criminal and civil appeals arising out of cases listed in 3 (a)(i) and (ii) below, and the rules made under this Practice Direction shall be construed and applied to eliminate unnecessary delay in the transmission and conduct of appeals and reduce the expense and time spent on appeals by all parties before the Court.
3. (a): The Presiding Justice of each division, in conjunction with the Deputy Chief Registrar of the division, shall ensure that their various Registries give priority to the listing, consideration and determination of all applications and substantive appeals related to the items listed in (i) and (ii) below and in respect of the Rulings and Judgments of the Court below related thereto
ii. Interlocutory appeals challenging the ruling of the Court below on an interlocutory application heard in that Court
10 (a): In the determination of appeals arising from interlocutory decisions of the Court below in

respect of any of the matters listed in 3 above, the Court shall give priority to those matters and where possible hear such matters on a day to day basis basis until determination
(b): Without prejudice to any of the forgoing the Court shall refuse to hear appeals arising from interlocutory decisions of the Court below where the matter deals with any of the issues listed in 3 above and the Court is of the opinion that the grounds raised in the appeal are such that the Court can conveniently be determine by way of an appeal arising from the final judgment of the Court below. Provided that where the grounds of the appeal deal with issues of pure law the Court may exercise discretion and determine it expeditiously.
From the above succinct provisions of the Court of Appeal Practice Direction 2013, it does appear to me that there are two distinct conditions in which this Court can refuse or decline to hear an interlocutory appeal and rather remitting the same to the Court below to await the final judgment of the Court below and be taken up together with the appeal against the final judgment. These two conditions for refusing the hearing of an

interlocutory appeal are:
i. Where the Court is of the opinion that the grounds of appeal are such that can conveniently be determined by way of an appeal arising from the final judgment of the Court below
ii. Where the grounds of appeal deal mainly with issues of facts
It follows therefore, that in some circumstances as clearly set out in the Practice Direction 2013, there are two conditions in which an interlocutory appeal may be heard and determined expeditiously by this Court notwithstanding the provisions of Paragraph 10 (B) of the Court of Appeal Practice Direction 2013. These two conditions for the hearing of an interlocutory appeal are:
i. Where the Court is of the opinion that the grounds of appeal are such that can not be conveniently raised and determined by way of an appeal arising from the final judgment of the Court below.
ii. Where the grounds of appeal deal with issues of pure law.
My lords, it appears to me that the first condition for hearing of interlocutory appeal, though very expeditiously, relates to grounds of appeal which cannot conveniently be determined by way of appeal arising from the final judgment of

the Court below in that the ground of appeal may be extrinsic to the issues joined by the parties in the substantive Suit before the Court below and therefore, may not form the basis or subject of the final judgment of the Court below and thus need not be deferred until the final judgment of the Court below. One of such issues would include, in my view, a ground alleging that a case is an abuse of Court process, an issue which may be extrinsic to the the real issues in the substantive suit but is one capable of terminating the suit in limine. I therefore, hold the view that such an issue when raised in a ground of appeal should not be deferred but be taken and determined expeditiously one way or the other to meet the ends of speedy dispensation of justice to the parties as envisaged by the Practice Direction 2013. It also appears to me that from the second condition for hearing an interlocutory appeal based on ground of law which raises an issue of pure law need not and should not be deferred till the final judgment of the Court below but rather should be heard timeously and expeditiously determined one way or the other to meet the ends of speedy dispensation

of justice to the parties as envisaged by the Practice Direction 2013.
In my view to do otherwise and to use the provisions of Paragraph 10 (B) of the Practice Direction 2013 as a carte blanche to refuse the hearing of all interlocutory appeals would itself defeat the very purpose of the Practice Direction 2013 geared towards expeditious determination of deserving interlocutory appeals, more so, when in my view, this Court is in no position to monitor, supervise and ensure compliance with even its order of accelerated hearing handed down to the Court below. Such that while refusing to hear an interlocutory appeal and ordering an accelerated hearing by the Court below, it may still take forever for the Court below to conclude and enter its final judgment to come before this Court for the purposes of hearing and determining once and for all the issues, both interlocutory and final, in one appeal before this Court.
Having therefore, borne in my mind the real purposes for the introduction of the Practice Direction 2013 and having considered Paragraphs 1, 2, 3, 6, 9 and 10 thereof, in the light of grounds one and two in the Notice of Appeal of the

Appellants relating to the salient issues of jurisdiction and abuse of Court process, it it my view, and I so hold firmly, that this appeal, though interlocutory in nature, raises the issue of jurisdiction, which is both fundamental and of pure law, and most crucial to my mind, the issue of abuse of Court process, which need not, ought not and cannot be deferred to await the final judgment of the Court below as it is extrinsic to the real issues in contention between the parties in the substantive suit and is one of those issues, having the capacity of determining a matter in limine if made out should be heard and determined expeditiously under the Practice Direction 2013, which has made very detailed and helpful provisions geared towards the expeditious hearing and determination of interlocutory appeals of this nature by abridging the time for filing of relevant briefs to a very reasonable period.
Truly, and honestly so too, what is there to defer in an appeal complaining that the Respondents’ suit before the Court below is an abuse of Court’s process? Is that an issue to be canvassed and evidence to be further led and decided upon again by

the Court below in the determination of the substantive suit? I think not! Indeed, what is even the legal justification or indeed the convenience for the parties to carry along with them, except perhaps as an undesirable baggage, to and at the hearing of the substantive suit the issue of whether or not the suit itself constitutes an abuse of Court’s process? None I can see!
It is therefore, my view and I so firmly hold, that going by grounds one and two in the Appellants’ Notice of Appeal, this interlocutory appeal comes or falls within one of the exceptions provided for in the proviso to Paragraph 10 (B) of the Practice Direction 2013, when it not only appears but is indeed convenient as well as imperative that the issues raised in an interlocutory appeal is expeditiously considered and determined by this Court in the over all interest of justice than deferring it to the final judgment in the substantive suit before the Court below. In the final analysis therefore, it is my view that more justice would result in the expeditious hearing and determination of this interlocutory appeal than in declining or refusing to hear and determine it as

being sought by the 1st – 3rd Respondents/Applicants in the application under consideration.

(2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319;Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225.
Interestingly, so fundamental is the issue of abuse of Court process that it has over the years assumed the toga of a jurisdictional issue with the capacity to terminate a proceeding or suit or matter in limine by way of dismissal, since no Court of law has the jurisdictional competence to hear and determine on the merit a suit or matter or cause founded on the abuse of its process. Thus, once the issue of abuse of Court process is raised, it is important that such an issue is resolved immediately to determine the bona fide of the suit or matter or cause before the Court. SeeAfrican Reinsurance Corp. V. JDP Construction (Nig) Ltd (2003) 13 NWLR (PT 838) 609. See also Dogari V. Waziri & Anor. (2016) LPELR – 40320 (CA) @ pp. 30 – 31; Dingyadi & Anor V. INEC &Ors. (2011) LPELR – 950 (SC) @ pp. 38 – 39; Ogbonmwan V. Aghimien (2016) LPELR – 40806 (CA) @ p. 22; Ogoejeofo V. Ogoejeofo

(2006) 3 NWLR (Pt. 966)205 SC.

(2010) All FWLR (Pt. 523) 1199.

In the light of all the findings above, issue one is hereby resolved against the 1st – 3rd Respondents/Applicants in favor of the Appellants/Respondents.

ISSUE TWO
Whether the Appellants as Applicants have made out a case for the stay of proceedings of 1st – 3rd Respondents’ Suit before the Court below pending the hearing and determination of the Appellants’ appeal by this Court?
APPELLANTS/APPLICANTS’ COUNSEL SUBMISSIONS
Learned counsel for the Appellants/Applicants, Douglas Ogbankwa Esq., had submitted that in the peculiar circumstances of the instant appeal, in the light of the ruling of the Court below, this is a proper case in which the proceedings of the Court below should be stayed pending the expeditious determination of this interlocutory appeal under the fast track provisions of the Practice Direction 2013 and contended that to do otherwise would be clearly inimical to the issues sought to be canvassed by the Appellants in this appeal and urged the Court to so hold and to grant the application for stay of proceedings in the 1st- 3rd Respondents’ suit before the

Court below pending the expeditious hearing and determination of the Appellants’ interlocutory appeal by this Court in the greater interest of justice.

1ST – 3RD RESPONDENTS’ COUNSEL SUBMISSIONS
Learned Senior Advocate for the 1st – 3rd Respondents, Ken Mozia SAN had submitted that the entire application is misconceived having been based on the provisions of Order 10 Rule 4 of the Court of Appeal Rules 2011 rather than on the provisions of Order 10 Rule 4 of the extant Court of Appeal Rules 2016 and contended that in law this interlocutory appeal is one which ought not to be heard but to await the final judgment of the Court below and is certainly not one for which an order of stay of proceedings ought to be made by this Court, which would only impede the expeditious hearing and determination of the rights of the parties by the Court below and urged the Court to so hold and to dismiss the Appellants/Applicants’ application for stay of proceedings for lacking in merit. Learned SAN referred to Order 4 (10) of the Court of Appeal Rules 2016.
RESOLUTION OF ISSUE TWO
My lords, issue two which emanates from the reliefs

number two sought by the Appellants/Applicants is one which raises the fundamental issue of when an appellate Court can justifiably order a stay of proceedings before the Court below pending when an interlocutory appeal before it is heard and determined.

Now, while the Appellants/Applicants had vehemently contended that this is a proper case for this Court to exercise its very less often exercised power to stay the proceedings of the Court below in the light of the grounds of appeal and the likely issues to be canvassed before this Court in the interlocutory appeal, it was also contended with equal vehemence by the 1st – 3rd Respondents that this is one interlocutory appeal for which no order of stay of proceedings should or ought to be made since it is an appeal dealing mostly with issues of weight of evidence which can conveniently await the final judgment of the Court below in the light of the urgency of the matters being canvassed before the Court below.

In the affidavit is support of the Appellants/Applicants’ application for stay of proceedings, one Justice Osawe had stated inter alia thus:
4. That the Appellants/Applicants filed a

Notice of Preliminary Objection on 29th November, 2019, before the trial Court, challenging the jurisdiction of that Court to entertain the suit of the 1st – 3rd Respondents containing 4 (four) grounds of objection.
8. That I was informed by Famous Osawaru, Esq. Counsel in our chambers on 20th January, 2020 at about 10.00am and I verily believe him to be true as follows:
b. That the said Court delivered its Ruling on 18th December, 2019, dismissing the said Notice of Preliminary objection; in addition to refusing to set aside the said Ex-Parte Order.
i. That the trial Court having been notified of the transmission of Records in respect of this case, Appeal being entered and the Court of Appeal seised of every proceedings in respect of this case, ought not to conduct any further proceedings in this case until the hearing and determination of the Appeal as required by law.
l. That the Appellants’ Notice and Grounds of Appeal raises substantial challenge to the jurisdiction of the Honorable Court as well as vigorously challenging the refusal of the trial Court to set aside the said Ex-Parte Order.
m. That a challenge to jurisdiction is an

exceptional reason to grant this application once a valid Appeal is pending and arguable as in this case. The Appeal will dispose of the proceedings at the High Court if it succeeds.
o. That if further proceedings at the trial Court is not stayed, the said Court would most likely continue to conduct proceedings in this Case, despite having knowledge of the entering of the Appeal.
p. That it is necessary to preserve the Res by granting this application in order not to render the Appeal nugatory if the Appellants most likely succeed on Appeal.
q. That the Respondents will not be prejudiced by the grant of this application as the question of jurisdiction is so fundamental to the hearing of this case and in order to avoid a situation where both the Court and parties would have acted in vain.

In opposition, the 1st – 3rd Respondents filed a counter affidavit by one Santos Owootori Esq., deposing inter alia thus:
4. That the Respondents suit before the lower Court contends the validity of a purported resolution of an alleged meeting of a purported organ of the Edo State Chapter of All Progressives Congress (APC) by which the 1st Respondent

was stated as having been found guilty, albeit in absentia, of committing several offences with an expressed conclusion that he had been consequently removed as the state Chairman of the party.
8. That I verily believe that in view of paragraphs 3 – 7 above, time is of utmost essence for the determination of the issues submitted by the 1st to 3rd Respondents/Respondents before the lower Court in the substantive suit.
9. That I verily believe that this interlocutory appeal is a ploy to frustrate the timeous determination of the 1st – 3rd Respondents’ suit before ‘the lower Court which pertains to the personal actions of the Appellants/Respondents and the 4th Respondent which they are strenuously trying to pass off as acts of the party in order to raise the issue of the need to exhaust the party machinery for dispute resolutions before litigation and thereby frustrate the action.
10. That I know as a fact and verily believe that the pursuit of an interlocutory right of Appeal over an issue that can as well be taken after the final decision of the trial Court must have been given, will occasion avoidable delay which will defeat the 1st to

3rd Respondents/Respondents quest for justice as Claimants before the lower Court in a case founded on their assertion of violation of their rights to fair hearing.
17. That the Appellants/Applicants filed this extant Motion before this Honorable Court on 27/01/2020 at a time when its Motion filed at the lower Court on 20/12/2019 was still pending before that Court which was still seised of the whole of the proceedings as between the parties.
18. That I know as a fact and verily believe that this instant Motion by the Appellants/applicants before this Court is premature, pre-emptive and. incompetent.
19. That the Appellants/Applicants have consistently resorted to several ploys to frustrate the hearing of the substantive suit before the lower Court by practically holding the hands of the lower Court through all manner of applications, arguments and subterfuge.

In response, the Appellants/Applicants filed a further affidavit by one Justice Osawe deposing inter alia thus:
3. That the 1st Appellant informed me in chambers on 13 February, 2020 at about 2: pm and I verily believe him as follows;
b. That the subject matter of this

Appeal is whether or not the trial Court has jurisdiction to entertain suit No. B/177OS/2019, not to talk of granting an interim Order in abuse of Court process.
f., That the Appellants have a right to Appeal a decision of the trial Court
that they are not satisfied with and it would be in the interest of their constitutional and statutory right of Appeal for this Honorable Court to hear this Appeal.
h., That the Appellants worked so hard to compile and transmit the Records of this Appeal to the Registry of the Court of Appeal despite all obstacles and verily believed that they had done the needful for their Appeal to be heard as the rest was a matter for their Counsel to handle.
i., That the grounds in support of the Application are not founded on falsehood as they contain steps taken by Appellants from filing a Notice of Appeal against the Ruling of the trial Court of 18/12/19 to the transmission of Records to the Registry of the Court of Appeal irrespective of the use of wrong terminology, if any.
4. That I am further informed by Famous Osawaru, Esq, of Counsel in chambers at 16 Jemide Avenue, GRA, Benin city on 13th February, 2020

at about 2:pm and I verily believe him as follows;
a. That this Appeal, being one that challenges jurisdiction of the Trial Court and capable of disposing of the subject matter of the suit cannot be conveniently taken together with the proceedings in the trial Court at the same time
b. That the challenge to the jurisdiction of the Trial Court is an exceptional matter for which this Honorable Court ought to hear this Appeal.
d., That part of what this Appeal seeks to challenge is the grant of interim order restraining the Appellants from carrying out their duties as officials of the APC and even after the Records were transmitted to the Registry the trial Court entertained arguments on the interlocutory application for Injunction which was a replica of the Interim Order that forms part of the subject matter of this Appeal.
f. That the Appellants filed a Motion for Stay of Proceedings at the trial Court, but the Motion could not be taken at that Court due to the fact that the Chief Judge of Edo State High Court withdrew the case file from the trial Judge following the petition of the Appellants. When the case came up on 20/01/2020, the trial

Judge informed all Counsel involved in the conduct of the case about the withdrawal of the case file from his Lordship. The matter has not been assigned to any Court till date.
i. That the grant of a stay of proceedings would help to protect the subject matter of this Appeal and would not interrupt the right of the Appellant to a timeous hearing as the question of jurisdiction is a threshold issue which goes to the root of the matter and competence of a Court to adjudicate over such matter.
j. That the trial Court ought not to share jurisdiction with the Court of Appeal at a time when a fully blown Appeal is pending before the Court of Appeal over the question of whether the trial Court has jurisdiction to entertain the action in the first place.

My lords, looking at the avalanche, or is it the tsunami, of facts deposed to by the parties in this applications it would appear that they are all in a hurry to determine even in this interlocutory appeal all their contending issues in the substantive suit still pending before the Court below but this Court will not allow itself to be drawn into such a premature exercise in futility at a time when

those matters remain live before the Court below and has not been finally determined by that Court. I shall therefore, in this ruling, limit myself to the issues duly arising for determination in an application for stay of proceedings pending appeal and to that end would not concern myself at this interlocutory stage with the merits and demerits of the respective cases of the parties as pending before the Court below. They must keep their gun powder dry until such a time it is due and appropriate for them to put them into use before the Court below!

Having stated as above, I thought I should also observe that in the litigation process while counsel for the parties are indisputably the masters of the law to be deployed as are necessary and relevant, the litigants remain undoubtedly the masters and owners of their facts to be put forward before the Court. It is thus not a good practice for counsel, in matters involving strenuous dispute of facts, to descend into the arena to be deposing to matters purely of facts which are ordinarily within the personal knowledge of the litigants, their clients. In these applications both counsel did just that but I think

a word is enough for the prudent and wise counsel and I shall say no more on this issue!

crystallized to guide the Courts in the consideration and determination whether or not to grant an order of stay of proceedings pending appeal. These principles, though not in any way intended to be exhaustive, includes the following, namely: (1) the action sought to be stayed must be shown not only that it might fail, but that it cannot possibly succeed or that for some reasons, it ought not to go on; (2) the action is shown to be frivolous, vexatious or an abuse of the process of the Court; (3) no cause of action is disclosed; and (4) there is need to preserve the res from being destroyed and consequently to prevent undue hardship. It must be pointed out once that each of the above conditions, if proved, would constitute special circumstances to warrant the intervention of this Court to grant an application for stay of proceedings pending appeal. Thus, the duty is on the Court in an application for stay of proceedings pending appeal to consider very dispassionately the competing rights of the parties to justice and the demand of justice to preserve the rest pending the determination of the appeal, so that the appeal if successful should not be rendered

nugatory. This duty foists on the Court the herculean task of exercising its discretion both judicially and judiciously with one view in mind, and that is the dispensation of justice according to law. Authorities on this point of the law are legion as are replete in our law reports! See Joe Adole Okotie – Eboh & Anor V. Mrs Alero Jadesimi & ORS (1999) LPELR-6669 (CA). See also Deduwa of Ors. V. Okorodudu & Ors. (1974) 1 All NLR (Pt. 1) 272; Kigo (Nig.) Ltd. V. Holman Bros. (Nig.) Ltd. (1980) 5 -7 S.C. 60; Chief Jonas Agu & Anor V. COP (2016) LPELR-40026(CA); Obi V. Elenwoke (1998) 6 NWLR (Pt. 554) 436; Okem Enterprises Nigeria Limited & ANOR V. NDIC (2002) LPELR-5995 (CA); Kotoye V. Saraki (1993) 5 NWLR (Pt. 296) 710;Obikoya V. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157;Lonestar Drilling Nigeria Limited V. Triveni Engineering & Industries & Ors(1998) LPELR-6433(CA); Gomwalk V. Okwuosa (1996) 3 NWLR (pt.439) 681; Hallmark Bank Ltd. V. Akaiuso (1995) 5 NWLR (Pt.395) 306; Okorodudu V. Okoromadu (1977) 3 S.C. 21.
I have taken a calm look at the facts and circumstances as disclosed in the affidavit, counter affidavit and

further affidavit of the parties in the light of the ruling of the Court below and the urgency of the entire claims of the 1st – 3rd Respondents as Claimants and still pending before the Court below and the overriding need in the interest of justice for an expeditious hearing and determination of the substantive suit by the Court below for the rights and liabilities of the parties to be speedily ascertained in a just and fair manner and within a reasonable time, and I am of the firm view that an order of stay of proceedings of the suit before the Court below would be most unjust and wantonly unreasonable to make in the proved circumstances of this case.

In my view, flowing from the affidavit evidence of the parties, and here I am inclined to believing the depositions in the counter affidavit as to the expedient nature of the matters and issues arising therefrom in the proceedings before the Court below, time is indeed of the essence in the proceedings before the Court below. Thus, I hold that in the circumstances of the proved evidence in this application, coupled with the unambiguous provisions of the proviso to Paragraph 10 (B) of the Court of Appeal Practice Direction 2013,

an order for expeditious hearing and determination of this interlocutory appeal is all that the justice of this case would so richly requires and very well deserves in the greater interest of justice and not an order of stay of proceedings of the urgent matters before the Court below. In the light of all the findings above, issue two is hereby resolved against the Appellants/Applicants in favor of the 1st – 3rd Respondents.

Happily, the provisions of the Court of Appeal Practice Direction 2013 have made very pertinent rules to govern situations such as now thrown up by this application and this interlocutory appeal. By Paragraph 6b, provision is made for all appeals falling under Paragraph 3(a)(ii) for record to be compiled and transmitted not later than seven days from the date of filing of the Notice of Appeal, which Record of Appeal has already been deemed as properly compiled and transmitted to this Court on 30/1/2020. By Paragraph 9a, provision is made for the filing of the Appellant’s brief within 14 days from the date of the transmission of the record of appeal, while by Paragraph 9b, provision is made for the filing

of the Respondent’s brief within 10 days upon service of the Appellant’s brief. Thereafter, by Paragraph 9c, provision is made for the filing of the Reply brief within 5 days of the service of the Respondent’s brief.

However, having duly considered the entirety of the very urgent circumstances as revealed by the affidavit, counter affidavit and further affidavit of the parties in these applications, and in the interlocutory appeal and having earlier held that both applications filed by the parties lacked merit and are liable to be dismissed, I hold that the proper order to be made in the greater and overall interest of justice to both parties is one further abridging the time for the filing of all the relevant briefs by the parties so that the issues bordering on grounds one and two in the Appellants’ Notice of Appeal can be heard and determined expeditously by this Court.

On the whole therefore, having resolved issue one against the 1st – 3rd Respondents/Applicants and having also resolved issue two against the Appellants/Applicants, I hold that both applications lack merit and is each liable to be dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Consequently, both the 1st – 3rd Respondents/Applicants’ Motion on Notice filed on 30/1/2020 and the Appellants/Applicants’ Motion on Notice field on 27/1/2020 are each hereby dismissed for lacking in merit.

However, in the interest of justice, having held that the issues raised in grounds one and two of the Appellants’ Notice of Appeal filed on 19/12/2019, being issues touching on jurisdiction and abuse of Court’s processes which can be conveniently, and ought to, be heard and determined expeditiously by this Court in the substantive appeal, time for the filing of all relevant briefs in the substantive appeal is hereby further abridged and it is hereby consequentially ordered as follows:
1. The Appellants shall within five days from the date of this ruling file and serve the Appellants’ brief on the Respondents
2. Upon service of the Appellants’ brief, the Respondents shall within seven days from the date of service on them file the Respondents’ brief and serve on the Appellants
3. Upon service of the Respondents’ brief, the Appellants shall within two days from the date of service on

them file the Reply brief, if neccessary.
4. Upon due compliance with the above Orders by the parties, the Registry of this Court, on the directive of the Presiding Justice of the Benin Division, shall issue and serve on the parties a hearing notice for the expedtious hearing and determination of the substantive appeal.
5. There shall be no Order as to cost.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the Ruling just delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA.

I agree with the reasoning and conclusion reached therein that the two applications lacks merit.

I also dismiss the two applications and I abide by the consequential orders made in the lead Ruling including the order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the ruling just delivered by my learned brother, Biobele Georgewill, JCA. I agree entirely with the decision contained in the elaborate ruling of my learned brother. I abide by all the orders in the leading ruling, including the order as to costs.

Appearances:

Douglas Ogbankwa Esq., with him Famous Osawaru Esq. For Appellant(s)

Ken Mozia SAN, with him, Mrs. M. I. Mozia, Santos Owootori Esq., Esther Olatunji Esq., and R. O. Odediran Esq.
O. A. Eghareba Esq., holding the brief of AuduAnugo Esq. For Respondent(s)

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