MR. TOYIN ABDULKAREEM V. ALFA BURAIMOH AYINLA
(2011)LCN/4599(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of June, 2011
CA/IL/M.69/2010
RATIO
STAY OF PROCEEDINGS: WHAT AN AN APPLICANT MUST SATISFY TO SUCCESSFULLY STAY PROCEEDINGS IN A LAW COURT
The law is trite that before an applicant can successfully stay proceedings in a law Court he must of necessity establish that there is a valid and subsisting appeal; that there is a special circumstance warranting a stay of proceedings and that the justice/balance of convenience of the case is in favour of the applicant. These three conditions, needless to say must co-exist for a successful application for stay of proceedings. Having stated the law and all that for a successful application for stay of proceedings, I now proceed to clinically examine the processes and the affidavit evidence-adduced by the parties to the application in contention with a view to finding out whether or not the applicant has made out a case for the discretion of the court to be exercised in his favour. PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
MR. TOYIN ABDULKAREEM – Appellant(s)
AND
ALFA BURAIMOH AYINLA – Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): The application dated 1st day of July, 2010 but filed on the 10th August, 2010 by the Appellant/Applicant is by way of motion on Notice to the Respondent praying for an Order of this Court staying further proceeding in a case pending before the High Court of Kwara State, Omu-Aran Judicial Division pending the determination of the Applicant’s appeal dated and filed 1st July 2010 before this Court.
The grounds upon which the application is predicated are:
1. The Applicant being dissatisfied appealed against the ruling of the High Court of Kwara State sitting at Omu-Aran presided over by Hon. Justice M. Abdul Gafar delivered on the 18th June, 2010 via a Notice of appeal dated 1st July, 2010.
2. The Appellant/Applicant in the lower Court sought to call a subpoened witness on the order and command of the Court itself and same was eventually refused on the objection of the claimant counsel.
3. The Appellant/Applicant thereafter applied for a stay of further proceeding before the lower Court pending the determination of the interlocutory Appeal on ground two above.
4. The learned Justice of the lower Court in a ruling delivered on 27/07/2010 refused the application for stay of proceeding before the determination of the Appeal before this Court.
5. The Appellant/Applicant is dissatisfied with the ruling to stay further proceeding in the lower Court because a continuation of the case without the determination of the interlocutory appeal will render the appeal nugatory and frustrate the end of justice.
The application as can gathered from the records is supported by a supporting affidavit of seven paragraphs and two annextures; the ruling of the lower Court and the Notice of Appeal filed by the Appellant/Applicant, it is also supported by two distinct further affidavits, 1 and 2, consisting of 9 paragraphs, 1 annexure and 19 paragraphs respectively.
For their part, the Respondent also filed two distinct affidavits; the counter affidavit consisting of five paragraphs filed on 22nd September, 2010 and a further and better affidavit against the application filed on the 8th October, 2010. The counter-affidavit was deposed to by Abdul-Rasheed Ibrahim a clerk in the chambers of Respondents Counsel while the further and better affidavit was deposed to by shade Bhola, a litigation secretary working in the same chambers- This further affidavit has one annexure, a letter from the Respondent’s Counsel to Applicant’s counsel complaining of not being briefed by his client (Respondent’s Counsel) in respect of the motion in contention before this Court.
In view of the contentious nature of the application, the Court made an Order for written addresses. In compliance with the said Order, written addresses were submitted for our consideration. On the 9th of March, 2011 when the application came before us for hearing learned counsel for the Applicant, Mr. L. O. Abdulsalam, Esq. adopted his written address and reply on points of law dated and filed on 10/02/2011 and 8th March 2011 respectively.
It is instructive to note that the adoption of the two briefs which were slightly filed out of time was made possible by the Respondent’s Counsel Withdrawal of his objection as to the application for extension to file the said processes moved by the Applicant’s Counsel.
On the other hand, Counsel for the Respondent, Mr. Ariyoosu adopted his written address dated and filed on the 2nd of March, 2011. He urged us to refuse the application for lacking in merit.
It is pertinent to state at this stage before proceeding further that, both sides have adduced affidavit evidence in respect of the positions taken by each. Reference to the said evidence will be made in the Course of writing this ruling as and when it is appropriate.
The facts of the case leading to this application as can be gleaned from the records of the lower Court are that: In the lower Court, the applicant (as defendant) in this case, intended to call three witnesses and in compliance with the rules of that Court, the depositions of the three witnesses were made and filed before the Court.
The three witnesses testified and cross-examined on the 19th day of March, 2009 and 14th day of May, 2009 respectively. The applicant on that day, ought to close his case but his Counsel still applied for adjournment on the ground that the applicant intended to call one more witness who was not on the list of witnesses to be called as such his deposition was not filed along with the list of witness as should have been the case under the rules of the said Court.
Since the said 14th May, 2009, the applicant did not, up till now deem it fit to file the deposition on oath of the said witness. As can be seen from the records, there were several adjournments at the instance of the Applicant to call this supposed witness.
As can be gleaned from the records, on the 21st day of May, 2010 the applicant’s Counsel brought a witness and introduced him as the sub-phoned witness when his deposition was not before the Court. The Respondent’s Counsel opposed the procedure and issues were joined and argument canvassed thereon.
On the 18th June, 2010, in a considered ruling delivered by the learned trial judge, the objection raised by the Respondent’s Counsel was upheld. The learned trial judge held inter-alia that the witness sought to be called by the Applicant cannot be called without the leave of the Court and his deposition is a precondition to his testimony in line with the Rules of the trial Court.
The applicant aggrieved by the ruling of the lower Court approached this Court and filed a notice of appeal dated and filed on 1st of july, 2010. Learned Counsel also filed an application for stay of proceeding before the lower Court on the 5th of July, 2010, pending the determination of the appeal he filed before this Court. The application was heard and refused by the learned trial judge in a considered ruling delivered on 27th day of July, 2010. Learned Counsel further filed the application for stay of proceedings which is the subject matter of this ruling.
Learned Counsel for the Applicant, in a brief settled by J. S. Bamigboye, Esq. distilled one issue for determination to wit:
“Whether the Affidavit evidence has sufficiently made out a favourable exercise of your lordships discretion to stay further proceedings in this case before the lower Court.”
On the other hand, Counsel for the Respondents, equally formulated one issue for determination as follows:
“Whether, in view of the circumstances of this case the Applicant has established a case entitling him to the discretion of the Honourable Court staying further proceedings of the trial Court in this case”.
In arguing this application, learned Counsel submitted that the grant of a stay of further proceeding have been set out and prescribed to meet certain conditions which have been crystallized by legal authorities as follows:
a. That there is a valid and subsisting Appeal.
b. That there is a special circumstance warranting a stay of proceedings
c. That the Justice/balance of convenience of the case is in favour of granting a stay of proceedings.
Learned Counsel further submitted that the purpose of this type of application is essentially to ensure that the success of an appeal is not rendered nugatory. He relied on the cases of Chief Toye Ogunyemi & Anor v. Bintu Ejide (2008) ALL FWLR (pt. 403) 400 at 1406 and Tai Ajomale v. Yaduat (No, 20) (1991) 5 SCNJ 187 at 188 to buttress his submission on this point.
It is the contention of the learned Counsel that they have filed a notice of appeal which they have exhibited along with their application and that same contains weighty grounds of appeal. It is his further contention that from the said grounds of appeal, there is indeed a special circumstance to warrant the grant of this application in that the witness whose evidence was objected to and subsequently barred is an expert witness on the interpretation of site plan which was said to describe the location of the land in dispute. It is he that can determine the veracity and/or otherwise of the site plan in relation to the subject of litigation definite identity of land in dispute as crucial in a land dispute.
Learned Counsel posits that the rejection of the evidence of a witness whose evidence is crucial, critical and relevant to the Appellant’s case creates a special circumstance and will attract the favourable exercise of your lordship’s discretion to stay proceedings pending the determination of the appeal before this Honourable Court.
Learned Counsel is of the view that the justice/balance of convenience tilts in favours of granting a stay of proceedings. The Appellant/Applicant having filed a process of appeal on a crucial and critical issue as adumbrated in the grounds upon which the application is anchored is entitled to the discretion of their lordships. We were urged to exercise our discretion in their favour and stay the proceedings at the lower Court pending the determination of the substantive appeal.
For his part, learned Counsel for the Respondents submitted that the Applicant has not made out a case to warrant the exercise of the Court’s discretion in their favour. Learned Counsel took the view that substantial paragraphs of the supporting affidavit and the other two Affidavits as adumbrated in his written address contain extraneous matters by way of legal argument, conclusion and prayer.
It is the contention of the learned Counsel that if those paragraphs are discountenanced as urged, the remaining paragraphs are not enough to sustain the Applicant’s prayer in his application, the written address notwithstanding because argument of Counsel cannot take the place of legal evidence. For this contention, learned Counsel relied on the case of Aro v. Ano (2000) 3 NWLR (pt. 649) 445, at 457.
It is the submission of the learned Counsel that the Applicant has not satisfied the conditions for the grant of stay of proceedings as set out in the cases of Chief Toye Ogunyomi & Anor v. Bintu Ejide & Ajomole v. Yaduat (supra) for the following reasons:
(1) The Appeal for which a stay is sought is an interlocutory and
(2) The grounds are of mixed law and facts and no leave was sought from either the court of trial or the appellate Court.
Learned Counsel further submitted that the law is settled beyond peradventure that an application for stay cannot be considered where there is no valid appeal as in the instant case. The basis for considering the application for stay does not exist. In support of this submission, learned Counsel relied on the case of Ajaokuta Steel Co. Ltd. v. United World Ltd. Inc. (2000) 13 NWLR (pt. 654) 25 at 255 and Ayorinde v. Kuye (2002) Vol. 24 WRN 37 at 36. Learned Counsel urged us to refuse the application for the aforementioned reasons.
RESOLUTION OF THE ISSUE
Let me begin my consideration of the sole issue in this application by restating the well settled principles of law pertaining to an application for stay of proceedings. The law is trite that before an applicant can successfully stay proceedings in a law Court he must of necessity establish that there is a valid and subsisting appeal; that there is a special circumstance warranting a stay of proceedings and that the justice/balance of convenience of the case is in favour of the applicant. These three conditions, needless to say must co-exist for a successful application for stay of proceedings.
Having stated the law and all that for a successful application for stay of proceedings, I now proceed to clinically examine the processes and the affidavit evidence-adduced by the parties to the application in contention with a view to finding out whether or not the applicant has made out a case for the discretion of the court to be exercised in his favour.
A close look at the grounds of appeal attached to the application would reveal the fact that no special circumstance have been disclosed warranting the grant of stay of proceeding. The notice of appeal has not raised any recondite point of law. The position of the law is clear in the rules of the trial Court as far as the issue of calling witnesses whose deposition is not on oath is concerned.
I am of the firm view that the case of Saraki v. Kotoye cited by learned Counsel in support of his application was cited out of context. The case talks about admission of rejected evidence. In the case in hand, evidence has not been led by the witness sought to be called. The issue is whether the witness can even be allowed to testify. It is on witness and not evidence. So issue of rejected evidence does not arise in this case. And the court can only know how crucial the evidence of the witness is when his depositions are on oath.
I am of the further view that assuming without conceding that issue of rejected evidence is involved, the said issue can be heard, together with the final appeal if need arises. This being the case the issue of rejected evidence cannot be a ground for granting an application for stay of proceedings. See the case of Aregbesola v. Oyinlola (2008) ALL FWLR (pt.436) 2018.
It is instructive to note that the learned Counsel having known his witness and what he is coming to say in Court, the failure of the Applicant to make the witness’s deposition on oath is an attempt to further delay the course of justice, knowing fully well that no witness can give evidence other than confirming his depositions on oath. The conduct of the Applicant has therefore only shown that the Applicant is only out to delay the leave of substantive matter. The justice of this case is in favour of refusing a stay of further proceedings in this case, hence the applicant has failed woefully to satisfy that there is a special circumstance or that the justice of the case is in his favour of granting stay of proceedings.
In the result, in the light of all that has been said, the application for stay of proceedings is completely devoid of any merit and same must be and it is hereby dismissed with N30,000 costs to the Respondent and against the Appellants/Applicant.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the Ruling just delivered by my Lord the Presiding Justice, and I agree completely with his reasoning and conclusion that the application for stay is completely unmeritorious and same is accordingly dismissed with N30, 000.00 costs in favour of the Respondent and against the Appellant/Applicant.
CHIMA CENTUS NWEZE, J.C.A.: I agree.
Appearances
J.S. Bamigboye Esq. For Appellant
AND
D.A Ariyoosu Esq. For Respondent
