MR. D.O. AJEKIGBE v. ENGR. BODE BOLA
(2019)LCN/12935(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2019
CA/IB/404/2013
RATIO
APPLICATION: STAY OF PROCEEDINGS: THE PRINCIPLE UPON WHICH A COURT CAN GRANT A STAY OF PROCEEDINGS
In United Spinners vs. Chartered Bank Ltd. (2001) 9 SCM, it was stated that the principles upon which a Court can grant a stay of proceedings in all cases is that the action ought in the interest of justice be stayed to enable the preservation of the res the subject matter of the dispute. This discretions exist whether the res is tangible or not Halilu Akilu vs. Chief Gani Fawehinmi (1989) 3 SC (pt. II) 1. Grant of stay of proceedings is a matter of discretion of the Court depending on the facts and circumstance of each case and the grounds of appeal which must not be frivolous ? United Spinners vs. Chartered Bank Ltd (supra). PER ABUBAKAR MAHMUD TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A.: Having read in draft the just delivered lead Judgment of my learned brother Nonyerem Okoronkwo JCA, and being in complete agreement with the reasoning and conclusion, I adopt same.
The crux of this matter is whether in the circumstances of this case the learned trial judge was obliged to order a stay of proceedings.
The dispute relate to the ownership or proprietary right over a property situate at Quarter 567 Jericho GRA Ibadan. The power of the Court to grant stay of proceedings is discretionary. In the exercise of his discretion the judge is enjoined to act both judicially and judiciously, to ensure the preservation of the res.
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The Applicant must satisfy the Court that there is threat of damage or alienation to the res or property in dispute. The dominant question here is the balance of convenience if status quo is not maintained, that is if stay is not granted can the injury be remedied by damages. See United Spinners Limited v. Chartered Bank Limited (2001)1 FWLR 9ot. 661 640.
As there is no evidence to show that there is threat of damage or alienation to the res or property in dispute, the decision of the learned trial judge refusing the application for stay of proceedings cannot be disturbed.
The appeal lacks merit and it is dismissed.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA. I agree with the reasoning and conclusion reached therein.
I however wish to emphasise that a decision whether or not to grant a stay of proceedings is the exercise of the discretionary powers of a Court which must be exercised judicially and judiciously based on the available materials before It. See IN RE: YAR?ADUA (2011) 17 NWLR (PT, 1277) PG. 567
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AT 585 – 586 PARAGRAPHS E – k NWORA VS. NWABUEZE (2011) 15 NWLR (PT. 1271) 467 AT 520 PARAGRAPHS E – G; AJUWA VS. S. P. D. C. N. LTD (2011) 18 NWLR (PT. 1279) 797 AT 828 – 829 PARAGRAPHS H – A.
A decision to grant or refuse an application for stay of proceedings is dependent on the facts of each case but over time there are established guiding principles to be considered in arriving at such decision. The principles include:
(a) There must be a pending appeal because there Is nothing to stay where there s no pending appeal.
(b) The Grounds of Appeal must be competent and arguable.
(c) There must exist special and exceptional circumstances which make the grant of stay desirable.
(d) The issue of special and exceptional circumstances is a matter of law and facts. Each case will be determined on its own facts and the Court will not be bound by an earlier authority so as not to fetter the exercise of its discretion.
(e) In determining whether there exist special and exceptional circumstances, the Court will consider whether the res will be destroyed if the proceedings are not stayed thereby rendering a successful appeal nugatory.
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(f) If the refusal of an order for stay will lead to the destruction of the res, the proceedings must be stayed.
(g) The competing rights of the parties to justice and equity must also be taken into consideration. This amongst others involves a consideration of what constitutes substantial or serious advantage or disadvantage to either of the parties including whether continuance of the action will be vexatious or oppressive to him or whether it constitutes an abuse of court process.
See Agrochemicals (Nig.) Ltd v. Kudu Hold Ltd (2000) 15 NWLR (PL 691) 483 at 509, Para. H; Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122 J98, Akhiwu V. Principal Lotteries Officer (1969) 1 AIINLR 426; Okorodudu V. Okoromadu (1977) 3 S. C. 21; Mobil Prod (Nig) unltd V. Ayeni (2008) 1 NWLR (Pt. 1067)185 203-205, Paras. D-C and Nzeribe V. Dave Engineering Co. Ltd (1994) 8 NWLR (Pt. 361)124 142, Paras. D-F, where the Supreme Court held, per Iguh, JSC as follows:
?The onus, however, is on the party applying for a stay of proceedings to satisfy the Court that in the special circumstances of his case, there exist some
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cogent and exceptional circumstances which makes the granting of such a stay of proceedings desirable. The exercise of such jurisdiction, being a matter of discretion of the Court, will depend on the facts and circumstances of each case unless that judicial discretion has been wrongly exercised or that such an exercise was tainted by some illegality or substantial irregularity, the appellate Court will, on principle, not interfere with the exercise of that discretion. See Anyah V. A.N.N. Ltd (1992)6 NWLR (Pt. 247)331.
From a careful perusal of the two issues formulated by the Appellant and the arguments canvassed thereon, it seems to me that the main concern of the Appellant is that a refusal of the application for stay of proceedings will render this appeal nugatory.
The res in the instant case is Quarter 576 Jericho GRA, a building. There is no evidence that he res will be destroyed if the application is refused. There is nothing to suggest it would vanish in the course of litigation. Granting a stay of proceedings in the present circumstance will not be a judicial and judicious exercise of the Courts discretion. The lower Court was
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right when it refused to grant the application for stay of proceedings.
?
It is for this and for the other reasons given by my learned brother that I also dismiss this appeal for lacking in merit.
.
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Appearances:
Adewale Adegoke with him, A.A. AhmedFor Appellant(s)
Kayoed Alli Balogun with him, A.A. AdebowaleFor Respondent(s)
Appearances
Adewale Adegoke with him, A.A. AhmedFor Appellant
AND
Kayoed Alli Balogun with him, A.A. AdebowaleFor Respondent
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
MR. D.O. AJEKIGBE Appellant(s)
AND
ENGR. BODE BOLA Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the ruling of the Oyo State High Court at Ibadan given on 30/10/13 whereby the appellant?s motion on Notice for stay of proceedings in Suit No. 1/587/2009 was dismissed on 13/7/12.
Briefly put, in Suit No. 1/587/2009 Between Engineer Bode Bola vs. Mr. D.O. Ajekigbe, the claimant claimed as follows:-
a. An order of this Honourable Court on the defendant to give vacant possession of Quarter 576 Jericho GRA Ibadan won and paid for by the claimant under competitive bidding.
b. An Order on the defendant to pay monthly rent of One Hundred and Fifty Thousand Naira (N150,000.00) with effect from 16th November 2008 when vacant possession ought to have been given until he gives vacant possession to the claimant.
c. A sum of Two Million Naira (N2,000.000.00) from the defendant as general damages for his refusal to give vacant possession from 16th November, 2008 which led to loss of use by the claimant.?
While the defendant counter claimed as follows:-
a. A declaration that the allocation of Quarters 576, Jericho GRA
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to the claimant and the subsequent Deed of Lease executed in his favour was done in error and in violation of the right of the defendant/counter-claimant to first refusal before such allocation.
b. A declaration that the defendant/counter claimant is the person entitled to a Statutory Right of Occupancy in respect of the piece or parcel of land and the structure thereon situate lying and being at Quarters 576, Jericho GRA, Ibadan, Oyo State.
c. A declaration that the Deed of Lease dated 09/02/2011 registered as No. 57 at page 57 in Volume 3570 of the land issued in the name and in favour of the defendant is properly so issued.
d. An order setting aside the lease dated 5th January, 2009 and registered as No. 22 at page 22 in Volume 3555 of the Lands Registry in the office at Ibadan in favour of the claimant.
The claimants suit was endorsed in the name of his Law firm Kayode Alli Balogun & Co., a firm of Legal Practitioner. Following the now hackneyed decision of the Supreme Court in Okafor vs. Nweke (2007) 19 NWLR (pt. 1043) and numerous other decisions of the Supreme Court to like effect, the trial Court proceeded to strike out
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the claimants suit in 1/587/09. The court then proceeded to hear and determine the counter-claim of the defendant. In the end, the Court dismissed the counter-claim.
In closing his judgment in Suit No. 1/587/09, the trial Court remarked as follows:
The claimants claim as contained in his Amended Writ of Summons not having been supported by a competent pleading is hereby struck out.
The defendant?s counter-claim fails in its entirety and it is hereby dismissed.
HON JUSTICE M.O. BOLAJI ? YUSUFF
JUDGE
13TH JULY, 2012
Subsequently another suit No. 1/1100/2012 Engr. Bode Bola vs. Mr. D.O. Ajekigbe was instituted by respondent herein for the same reliefs apparently to cure the error occasion in the earlier suit 1/587/09 which was struck out for being initiated by a Law firm.
Meanwhile the defendant whose counterclaim was dismissed in the judgment at the lower Court in 1/587/09 had appealed against that judgment to the Court of Appeal or
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so he alleged in an application claimant filed wherein he sought from the lower Court the following order.
AN ORDER staying further proceedings in this suit pending the hearing and determination of the appeal filed by the Applicant herein against the Respondent herein on the 28th September, 2012 against the judgment of this Honourable Court delivered in suit No. 1/587/2009: ENGINEER BODE BOLA VS. DAVID OLUYOLE AJEKIGBE on the 13th July, 2012.?
I have carefully searched the record and I am unable to find any Notice of Appeal in respect of Suit No. 1/587/2009 where the counterclaim of the defendant was dismissed.
Barring numerous points decided by the judge upon hearing the application for stay of proceedings, the learned trial judge at page 937 of the record wrote in conclusion as follows:-
In the instant case, the applicant has not filed any interlocutory appeal against any decision of this Court in this suit No. 1/1100/2012 and therefore there is no relevant appeal in this case upon which an application for stay of proceedings could be anchored. The present application of the applicant is therefore lacking in merit.
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It is accordingly dismissed.
The appellant has appealed against this ruling upon the Notice of Appeal dated 11/11/2013 and filed 12/11/2013 raising the following grounds of appeal viz:
Grounds of Appeal
1. The learned trial judge erred in law when he held that an application for stay of proceedings is always granted pending the determination of an interlocutory appeal and not a final decision of a Court.
2. The learned trial judge erred in law when he held that ?an order of stay of proceeding is granted during dependency of an action to which it relates and not after a final decision in that case has been arrived at by the Court.
3. The learned trial judge erred in law when he held as follows:
The applicant in this case have not stated, and there is nothing in the record of this Court in this case suggestive of the existence of any interlocutory decision of the Court in this suit No. 1/1100/2012 which has been appealed against by any of the parties to this case.
The application of the applicant in this instant case is not seeking to stay the proceedings in this case pending the determination of any interlocutory
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appeal filed in this suit No. 1/1100/2012, but for stay of proceedings pending the determination of the appeal over the final decision of this Court in suit No. 1/587/2009.
4. The learned trial judge erred in law when he held that the cases of Nalsa and Team Ass.vs. N.N.P.C. (1996) 3 NWLR (pt. 439) 621 and Ogundipe vs. Akinloye (2002) 10 NWLR (pt. 775) 312 were not relevant as relevant appeal referred to in those cases meant a relevant interlocutory appeal in respect of the proceedings to which the appeal relates.
5. The learned trial judge erred in law when he held as follows:
In such circumstance of a final decision of a Court, the best that an aggrieved party could do is to file a Notice of Appeal and consequently file an application for stay of execution of the said judgment.
From these grounds of appeal, the appellant formulated two issues for determination being;
1. Whether the learned trial judge was right when he held that the best that the appellant ought to have done as an aggrieved party with judgment in Suit No. 1/587/2009 was to file a Notice of Appeal and an application for stay of
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execution (Ground 5 of the Notice of Appeal).
2. Whether the learned trial judge was right when he refused the appellant?s Motion on Notice for stay of further proceedings in Suit No. 1/1100/2012 (Grounds 1, 2, 3 and 4 of the Notice of Appeal).
For the respondent, one issue was filed which is;
Whether considering all circumstances of this Appeal, the principles guiding the grant or refusal of a stay of proceedings the learned trial judge was correct to refuse granting a stay of proceedings in Suit No. 1/1100/12 subject of this appeal.
Resolution of issue
In this appeal, it is proper to note that Suit No. 1/587/09 between the parties is no longer a pending suit before the High Court Oyo State. It had abated by judgment of that Court by the claimant’s suit being struck out for being incompetent and the counterclaim thereof being dismissed.
In respect of the counterclaim dismissed, the counter-claimant as appellant appealed against the dismissal of the counter-claim, the respondent filed a fresh suit No. 1/1100/12 claiming reliefs.
At paragraph 9.03 ? 9.05, the respondent ably reiterated the facts and issues
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which I will adopt as follows:
Pleadings were completed in Suit No. 1/1100/12 and issues were joined. The suit was stated for hearing after pre-trial conference. The appellant on 15th day of May 2013 filed a motion on Notice praying for the following Reliefs.
An Order staying further proceedings in this i.e. Suit No. 1/1100/12 pending the hearing and determination of the Appeal filed by the Applicant herein against the respondent herein on 28th September, 2012 against the judgment of this Honourable Court in Suit No. 1/587/2009 Engineer Bode Bola vs. David oluyole Ajekigbe (see pages 154-157 of the Record).
The respondent filed a counter-Affidavit opposing the application (see pages 201 ? 203 of the record).
The motion on Notice was heard by the trial judge and the Ruling was delivered on 30th October, 2013. It is this Ruling that is the Subject of Appeal No. CA/I/404/13.
The contention of the appellant in the present appeal is that it is proper that though there was no interlocutory Appeal in Suit No. 1/587/09 he can used the judgment therein as pivot for asking for the stay of proceeding in suit No. 1/1100/12 a distinct suit entirely.
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In his Ruling on the motion on Notice in Suit No. 1/1100/12, the trial judge held. I am of the view that the phrase Relevant appeal mean a relevant interlocutory appeal in respect of the proceedings to which the appeal relates. The trial judge went on to hold: Order of stay Proceedings can only be granted pending the determination of an interlocutory appeal and not pending determination of substantive appeal. The Ruling of the trial Court is on pages 224 ? 237 of the Record. The Appellant being dissatisfied with the Ruling filed his Notice of Appeal on 12th of November, 2013 (see pages 238 ? 242 of the record). This Notice of Appeal have five (5) grounds, where he distilled two issues bordering on whether or not the trial judge rightly exercised his discretion in refusing the application for a stay of Proceedings in his Ruling of 30th October, 2013.
I have earlier outlined the issues for determination of the parties. From those issues, one main issue could be elicited in the following terms which are whether in the circumstances of this case, the learned trial judge was obliged to order a stay of proceedings.
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In United Spinners vs. Chartered Bank Ltd. (2001) 9 SCM, it was stated that the principles upon which a Court can grant a stay of proceedings in all cases is that the action ought in the interest of justice be stayed to enable the preservation of the res the subject matter of the dispute. This discretions exist whether the res is tangible or not Halilu Akilu vs. Chief Gani Fawehinmi (1989) 3 SC (pt. II) 1. Grant of stay of proceedings is a matter of discretion of the Court depending on the facts and circumstance of each case and the grounds of appeal which must not be frivolous ? United Spinners vs. Chartered Bank Ltd (supra). In this case, the trial judge stated at page 237 of the record thus: In the instant case, the applicant has not filed any interlocutory appeal against any decision of this Court in this suit No. 1/1100/2012 and therefore there is no relevant appeal in this case upon which an application for stay of proceedings could be anchored. The present application of the applicant is therefore lacking in merit. It is accordingly dismissed. An application for stay of proceedings pending appeal as the name entails must be made during the
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pendency of an appeal implying that an appeal or proposed appeal is a sine qua non or corollary of such application; part of the holden in Nika fishing Co. Ltd. Vs. Lavina Corporation (2008) 6 ? 7 SC (pt. II) 200. The appeal must be relevant, pending and arguable. In my view, it could be an interlocutory appeal or appeal in a final decision.
One of the most factors in an application for stay of proceedings is the preservation of the res or the subject matter of the suit because the Court has a duty to preserve the res for the purpose of ensuring that the appeal if successful is not rendered nugatory. Where there is evidence that the res will not be destroyed in the course of the litigation, an application may be refused.
The res in this case is Quarter 576 Jericho GRA Ibadan, a building in esse. No allegation is raised about any damage or alienation of the res. The dispute relate to the ownership or proprietary right over the property which the trial Court is competent and eligible to decide at this stage.
?As there is no threat of damage or alienation to the res or property in dispute arising at this stage, an application for stay of proceedings does not arise and is not made out.
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For the avoidance of doubt, the pending appeal that would justify an application for stay of proceedings need not arise from same suit but may be an appeal in a similar case having a direct connection with the res in dispute.
The refusal of the trial Court in the exercise of his discretion could be justified on the principles or rationale here considered.
Appeal therefore has no merit and is dismissed.
ABUBAKAR MAHMUD TALBA, J.C.A.: Having read in draft the just delivered lead Judgment of my learned brother Nonyerem Okoronkwo JCA, and being in complete agreement with the reasoning and conclusion, I adopt same.
The crux of this matter is whether in the circumstances of this case the learned trial judge was obliged to order a stay of proceedings.
The dispute relate to the ownership or proprietary right over a property situate at Quarter 567 Jericho GRA Ibadan. The power of the Court to grant stay of proceedings is discretionary. In the exercise of his discretion the judge is enjoined to act both judicially and judiciously, to ensure the preservation of the res.
12
The Applicant must satisfy the Court that there is threat of damage or alienation to the res or property in dispute. The dominant question here is the balance of convenience if status quo is not maintained, that is if stay is not granted can the injury be remedied by damages. See United Spinners Limited v. Chartered Bank Limited (2001)1 FWLR 9ot. 661 640.
As there is no evidence to show that there is threat of damage or alienation to the res or property in dispute, the decision of the learned trial judge refusing the application for stay of proceedings cannot be disturbed.
The appeal lacks merit and it is dismissed.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA. I agree with the reasoning and conclusion reached therein.
I however wish to emphasise that a decision whether or not to grant a stay of proceedings is the exercise of the discretionary powers of a Court which must be exercised judicially and judiciously based on the available materials before It. See IN RE: YAR?ADUA (2011) 17 NWLR (PT, 1277) PG. 567
13
AT 585 – 586 PARAGRAPHS E – k NWORA VS. NWABUEZE (2011) 15 NWLR (PT. 1271) 467 AT 520 PARAGRAPHS E – G; AJUWA VS. S. P. D. C. N. LTD (2011) 18 NWLR (PT. 1279) 797 AT 828 – 829 PARAGRAPHS H – A.
A decision to grant or refuse an application for stay of proceedings is dependent on the facts of each case but over time there are established guiding principles to be considered in arriving at such decision. The principles include:
(a) There must be a pending appeal because there Is nothing to stay where there s no pending appeal.
(b) The Grounds of Appeal must be competent and arguable.
(c) There must exist special and exceptional circumstances which make the grant of stay desirable.
(d) The issue of special and exceptional circumstances is a matter of law and facts. Each case will be determined on its own facts and the Court will not be bound by an earlier authority so as not to fetter the exercise of its discretion.
(e) In determining whether there exist special and exceptional circumstances, the Court will consider whether the res will be destroyed if the proceedings are not stayed thereby rendering a successful appeal nugatory.
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(f) If the refusal of an order for stay will lead to the destruction of the res, the proceedings must be stayed.
(g) The competing rights of the parties to justice and equity must also be taken into consideration. This amongst others involves a consideration of what constitutes substantial or serious advantage or disadvantage to either of the parties including whether continuance of the action will be vexatious or oppressive to him or whether it constitutes an abuse of court process.
See Agrochemicals (Nig.) Ltd v. Kudu Hold Ltd (2000) 15 NWLR (PL 691) 483 at 509, Para. H; Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122 J98, Akhiwu V. Principal Lotteries Officer (1969) 1 AIINLR 426; Okorodudu V. Okoromadu (1977) 3 S. C. 21; Mobil Prod (Nig) unltd V. Ayeni (2008) 1 NWLR (Pt. 1067)185 203-205, Paras. D-C and Nzeribe V. Dave Engineering Co. Ltd (1994) 8 NWLR (Pt. 361)124 142, Paras. D-F, where the Supreme Court held, per Iguh, JSC as follows:
The onus, however, is on the party applying for a stay of proceedings to satisfy the Court that in the special circumstances of his case, there exist some
15
cogent and exceptional circumstances which makes the granting of such a stay of proceedings desirable. The exercise of such jurisdiction, being a matter of discretion of the Court, will depend on the facts and circumstances of each case unless that judicial discretion has been wrongly exercised or that such an exercise was tainted by some illegality or substantial irregularity, the appellate Court will, on principle, not interfere with the exercise of that discretion. See Anyah V. A.N.N. Ltd (1992)6 NWLR (Pt. 247)331.
From a careful perusal of the two issues formulated by the Appellant and the arguments canvassed thereon, it seems to me that the main concern of the Appellant is that a refusal of the application for stay of proceedings will render this appeal nugatory.
The res in the instant case is Quarter 576 Jericho GRA, a building. There is no evidence that he res will be destroyed if the application is refused. There is nothing to suggest it would vanish in the course of litigation. Granting a stay of proceedings in the present circumstance will not be a judicial and judicious exercise of the Courts discretion. The lower Court was
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right when it refused to grant the application for stay of proceedings.
It is for this and for the other reasons given by my learned brother that I also dismiss this appeal for lacking in merit.
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Appearances:
Adewale Adegoke with him, A.A. AhmedFor Appellant(s)
Kayoed Alli Balogun with him, A.A. AdebowaleFor Respondent(s)
Appearances
Adewale Adegoke with him, A.A. AhmedFor Appellant
AND
Kayoed Alli Balogun with him, A.A. AdebowaleFor Respondent
