PEOPLES DEMOCRATIC PARTY (PDP) & ORS. V. ALHAJI ATIKU ABUBAKAR
(2006)LCN/2109(CA)
RATIO
JURISDICTION: WHEN THE ISSUE OF JURISDICTION CAN BE RAISED
The issue of jurisdiction which forms the crucial factor in the grounds for the application for stay can be raised at any stage of the proceedings, but it can not be raised as a camouflage, it must be genuine. PER ADEKEYE, J.C.A.
COURT PRACTICE: CIRCUMSTANCES IN WHICH THE COURT WILL GRANT A STAY OF PROCEEDINGS
All courts of record either trial or appellate appreciate the fact that an application for stay by its very nature delays speedy hearing of a case which has a negative effect of frustrating anxious plaintiff – whose case might turn out to be unjustifiably delayed. The courts are wary and jealously guard the exercise of their discretion and power in favour of granting an application which can be used by an unscrupulous applicant to delay trial. The court would not grant a stay of proceedings unless it is rest assured that a case ought not to go on. The exercise of discretion to grant stay of proceedings will be prompted by the peculiar circumstance of each case in which all the factors for and against the grant of stay proceedings must be carefully and meticulously weighed. Ayeni v. Eledo (2005) 12 NWLR (Pt. 939) pg 368. PER ADEKEYE, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 1st day of December, 2006
CA/A/212/2006
Justice
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
ABUBAKAR ABDUL-KADIR JEGA Justice of The Court of Appeal of Nigeria
OLABODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. COL. AHMADU ALI (RTD.) (NATIONAL CHAIRMAN, PEOPLES DEMOCRATIC PARTY)
3. CHIEF OJO MADUEKWE (NATIONAL SECRETARY, PEOPLES DEMOCRATIC PARTY)Appellant(s)
AND
ALHAJI ATIKU ABUBAKARRespondent(s)
ADEKEYE, J.C.A. (Delivering the Lead Ruling): In the application filed before this Honourable Court on the 16/11/06, the appellants/applicants, the Peoples Democratic Party (PDP), Col. Ahmadu Ali (Rtd.) (National Chairman) and Chief Ojo Maduekwe – National Secretary prayed for:
(1) An order of this Honourable Court staying further proceedings in this suit pending the determination of the appeal filed by the appellants/applicants herein.
(2) And for such further order or orders as this Honourable Court may deem fit.
The application is predicated on eight grounds which by way of summary reveal that the appellants/applicants challenged the jurisdiction of the lower court to entertain the suit FCT/HC/CV/45/06 filed by the plaintiff, Alhaji Atiku Abubakar which preliminary objection was dismissed by the lower court on the 31st of October, 2006. The appellants/applicants filed a notice of appeal against the decision of the lower court on the 7th of November, 2006. An application to stay further proceedings in the main suit FCT/HC/CV/45/06 was argued and dismissed by the lower court on the 16th of November, 2006. In the substantive suit which was commenced by way of originating summons, the respondent sought for determination of the following questions:
(1) Whether having regard to the combined provisions of sections 36(1) and 224 of the Constitution of the Federal Republic of Nigeria, 1999 Article 2 and Article 16(a) 1(a) and (b) of the Constitution of the Peoples Democratic Party (PDP) ratified on December 10, 2005, the National Executive Committee has the power to suspend the plaintiff a member of the party for a period of three months.
(2) Whether having regard to the combined provisions of sections 36(1) and 224 of the Constitution of the Federal Republic of Nigeria and Article 16(b)(i)(ii)(iii) and (iv) of the Constitution of the PDP ratified on December 10, 2005 the plaintiff as a member of the party can be suspended for a period exceeding one month.
(3) Whether having regard to the provisions of Article 16(b)(iii) of the Constitution of PDP as ratified on December 10, 2005 and section 36(1) and section 6(c)(b) of the Constitution of the Federal Republic, 1999 the plaintiff can be said to have been given fair hearing by an authority whose attention has been drawn to a pending suit No. FHC/ABJ/CS/368/06 between Alhaji Atiku Abubakar v. Attorney-General of the Federation and nine others the subject-matter of which forms the fulcrum of the disciplinary action by the defendants.
(4) Whether having regard to the provisions of Article 16(b)(i)(ii)(iii)(iv) and Article 16(3) of the Constitution of the Peoples Democratic Party (PDP) and ratified on December 10, 2005 and sections 36(1) and 224 of the Constitution of the Federal Republic of Nigeria an organ of the party other than the National Working Committee can suspend the plaintiff.
(5) Whether having regard to the provisions of Article 16(b)(i)(ii)(iii)(iv) of the Constitution of the Peoples Democratic Party (PDP) and section 36(1) of the Constitution of the Federal Republic of Nigeria, the plaintiff was not entitled to be given an opportunity to present his case before he was suspended.
Thereafter the respondent sought seven reliefs by way of declaration, and an order setting aside the purported suspension as being illegal, unconstitutional, null and void.
However worthy of note is relief No. (viii) which reads:
“A declaration that the plaintiff is entitled to contest for any election of the 1st defendant.”
At the hearing of the application for stay of further proceedings, Chief J. K. Gadzama, SAN leading an array of learned counsel for the appellants/applicants cited the enabling laws, referred to the 20 paragraphs affidavit in support of the application and the annexure exhs. A-D.
The learned senior counsel canvassed that there is a pending case at the trial court which will be affected by the appeal pending before this Honourable Court – There are twelve grounds which are substantially on jurisdiction raised in the appeal and the grounds would surely terminate the appeal. The grounds are also arguable.
The appellants/applicants relied on the cases of:
Okem Enterprises (Nig.) Ltd. v. NDIC (2003) 5 NWLR (Pt. 814) pg. 492 at pg. 504
Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) page 710 at pg. 722. Unreported decision of this court in the case of Chief Okorie v. Maurice Iwu delivered on 22/11/06 in CA/A/207/M/06; Abubakar v. Unipetrol (2002) 8 NWLR (Pt. 769) pg 242 at pg. 246 SC
The learned Senior Advocate urged the court to grant the application. In his reply the learned senior counsel for the respondent – Chief Wole Olanipekun, SAN equally leading a long list of learned counsel relied on the counter-affidavit filed on 24/11/06, further counter-affidavit filed 27/11/06 and exh. B attached. The gravamen of the submission of the learned senior counsel is that the application for stay of further proceedings if granted will cause greater hardship in a situation where time is of essence to the case before the lower court. Further that the application for stay of further proceedings was brought in bad faith going by the conduct of the case by the learned counsel for the applicant before the trial court as per the attachment of the court proceedings to the further counter-affidavit.
More important still, the res in this case will terminate on the 11th of December, 2006. The issue of jurisdiction which forms the crucial factor in the grounds for the application for stay can be raised at any stage of the proceedings, but it can not be raised as a camouflage, it must be genuine. There is no constitutional right to stay proceedings, which by its very nature is meant to frustrate speedy hearing of cases – all courts must therefore discourage as much as possible interlocutory applications to stay proceedings. Each case has to be considered on its own merit-the case before the trial court is time-bound. This Honourable Court is urged to refuse the application. The respondent cited sixteen cases on the list of authorities filed on 30/11/06 – and relied particularly on the cases of Hon Inakoju & Ors. v. Senator Ladoja & Ors. an unreported ruling of the Supreme Court in suit No. SC/112/2006 (reported in (2006) 18 NWLR (Pt. 1012) 667) delivered on the 6th of July, 2006.
Owena Bank (Nig.) Plc v. Olatunji (1999) 13 NWLR (Pt. 634) pg.218 at 231
Obi v. Elenwoke (1998) 6 NWLR (Pt. 554) pg. 436 at pg. 442 para. G.
I have given a careful and meticulous consideration to the submission of learned senior counsel to both parties.
Parties are ad idem, there is therefore consensus that the court has a discretion to grant or refuse a stay of proceedings – but such discretion must be exercised both judicially and judiciously and not arbitrarily – while taking into consideration the competing rights of the parties to Justice and equity.
Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5 -7 SC 60; United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt. 732) pg. 195
All courts of record either trial or appellate appreciate the fact that an application for stay by its very nature delays speedy hearing of a case which has a negative effect of frustrating anxious plaintiff – whose case might turn out to be unjustifiably delayed. The courts are wary and jealously guard the exercise of their discretion and power in favour of granting an application which can be used by an unscrupulous applicant to delay trial. The court would not grant a stay of proceedings unless it is rest assured that a case ought not to go on. The exercise of discretion to grant stay of proceedings will be prompted by the peculiar circumstance of each case in which all the factors for and against the grant of stay proceedings must be carefully and meticulously weighed.
Ayeni v. Eledo (2005) 12 NWLR (Pt. 939) pg 368.
In the application under consideration the applicant relied on the issue of jurisdiction. The learned trial Judge in its decision held that it has jurisdiction to adjudicate on the suit FCT/HC/CV/45/06 before the lower court. It is a decision of court – which shall subsist until an appellate court rules to the contrary.
I have looked at the competing affidavit filed in the application under consideration particularly the notice of appeal and the ground of appeal. It is trite and there are plethora of authorities to support the contention that an application for stay of proceedings can only be granted where special and exceptional circumstance exist particularly a genuine issue of jurisdiction raised in the pending appeal.
In short the issue of jurisdiction should not be used as a camouflage neither should it be seen as a magic wand to conjure a stay of proceedings. The court will grant a stay of proceedings where the issue of jurisdiction is genuinely raised and will have an effect of terminating the case after an appeal is heard and determined.
Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5 – 7 SC 60;
Arojoye v. UBA (1986) 2 NWLR (Pt. 20) pg. 101;
Okem Enterprises (Nig.) Ltd. v. NDIC (2003) 5 NWLR (Pt. 814) pg. 492;
Eze v. Okolonji (1997) 7 NWLR (Pt. 513) pg. 515
Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt. 16) pg. 264
Owena Bank (Nig.) Plc v. Olatunji (1999) 13 NWLR (Pt. 634) pg. 218.
In the instant case, granting an order of stay of proceedings based on the issue of jurisdiction is premature. In order to determine whether an issue of jurisdiction is genuinely raised this court examined the grounds of appeal and the whole proceedings which gave rise to this appeal.
The learned respondent’s counsel referred to the fact that the res in this case will terminate and expire on the 11th of December, 2006. Paragraph 12 sub-paragraph (v) of the counter-affidavit to notice of motion dated and filed November 16, 2006 reads:
“That the essence of the plaintiff’s case is to assert his right to participate in the forth coming congress and conventions which will culminate in determining the flag bearers of the defendant in the 2007 elections.
Paragraph VI “That time is of essence in this suit as the plaintiff’s claim will be overtaken by events by the end of December 2006.”
Under the questions raised in the originating summons one of the reliefs sought reads paragraph VIII:
“A declaration that the plaintiff is entitled to contest for any election of 1st defendant.”
From the foregoing it is apparent that the case of participation in any election is not raised afresh in this application.
I cannot but come to the conclusion that time is of essence in this application.
I find convenient sanctuary in the unreported case of Hon. Muyiwa Inakoju & Ors. v. Senator Rashidi. A. Ladoja & Ors. (2006) 18 NWLR (Pt. 1012) 667 where his lordship Katsina-Alu, JSC held that:
“Where time is of the essence of a case before a court of law, the court will be most reluctant to grant an application for stay because such an application is antithesis to the speedy hearing of the case.”
In the circumstance of this case where time is equally of essence it requires that Justice be evenly handed down to meet the competing rights and interest of both parties.
If the suit at the lower court is terminated by the outcome of the appeal the appellants/applicants stand to be compensated in costs since, meanwhile they have not suffered any hardship or prejudice whereas the respondent will suffer a greater hardship in view of time constraint.
In summary, this court shall exercise its discretion in favour of refusing the application for stay of proceedings. It is the order of this court that –
(1) The application for stay of proceedings having been refused is accordingly struck out.
(2) Hearing in this appeal CA/A/212/M/06 pending before this court be accelerated.
JEGA, J.C.A.: I have read in advance the ruling just delivered by my learned brother, Adekeye, JCA. I agree with the reasoning and conclusions reached therein.
I have carefully examined the motion on notice for stay of proceedings and have considered the submissions of learned senior counsel for the appellants/applicants and the respondent, the issue at stake in this motion is whether the grant of an order of stay of proceedings would meet the Justice of the case. In the case at hand the respondent has categorically stated in his counter-affidavit that time is of essence in the determination of his suit before the lower court. In paragraph 12(1)(iv)(v)(vi) and (vii), the respondent stated thus:
12. That I was informed by the plaintiff/respondent on the 17th November, 2006 at his residence at Aso Villa, Abuja at about 6.00 pm the following facts which I verily believe to be true.
(i) That he has seen a copy of the appellants/applicants motion on notice filed on November 16th, 2006 and the supporting affidavit and fully understand the contents thereof.
(iv) That the application filed by the defendants is frivolous as it was filed to frustrate his case before this Honourable Court and prevent him from participating in the up coming Presidential primaries of the 1st defendant, coming up on 3rd December to 17th December, 2006.
(v) That the essence of the plaintiff’s case is to assert his right to participate in the forthcoming congresses and conventions which will culminate in determining the flag bearers of the defendant in the 2007 elections.
(vi) That time is of the essence in this suit as the plaintiff’s claim will be over taken by events by the end of December 2006.
(vii) The applicant’s appeal can conveniently be taken after the determination of the substantive suit.
It is crystal clear from the foregoing paragraphs of the respondent’s counter-affidavit that time is of essence before the lower court and where time is of essence the Supreme Court in the unreported suit No. SC/112/2006 Hon. Muyiwa Inakoju & Ors. v. Senator Rashidi Adewolu Ladoja & Ors. (Reported in (2006) 18 NWLR (Pt. 1012) 667) which ruling was delivered on 16th July, 2006 stated thus:
“Where time is of essence of a case before a court of law, the court will be most reluctant to grant an application for stay because such an application is antithesis to the speedy hearing of the case. It is clear from paragraphs 22 and 23 of the counter-affidavit that the res is very much liable to time as it will be extinguished by 29th May, 2006.”
In the instant motion it is clear from paragraph 12 (iv) of the counter-affidavit that the res is very much liable to time and it will be extinguished by the 17th of December, 2006. Beside I do not see how the continuation of the case in the trial court will in anyway prejudice the case of the appellants/applicants in the Court of Appeal.
I also do not see any hardship that will be caused to the appellants if the proceedings in the trial court are not stayed. I do not entertain any doubt in my mind that by the circumstance of this case, the interest of Justice would be better served by a prompt and timely disposition of the substantive matter.
In the result this application is refused. It is accordingly dismissed.
RHODES-VIVOUR, J.C.A.: This is an application for stay of further proceedings in the trial court. I have examined the motion, the claim before the trial court and the submissions of counsel. Learned counsel for the appellant, Chief J. K. Gadzama, SAN is of the view that since he filed a preliminary objection questioning the jurisdiction of the trial court to hear the respondents case, a stay of proceedings ought to be granted. His reasoning being that jurisdiction and final judgment cannot be taken on appeal. On the other side of the fence, learned counsel for the respondent, Chief W. Olanipekun, SAN made extensive reference to his counter-affidavits contending that time is of the essence, and that if a stay of proceedings is granted it would foist a fait accompli on the trial court. The respondent would be unable to stand for election.
The respondent sued the appellants on an originating summons.
The case was filed to assert the respondent’s light to participate in the forth coming congresses and conventions which will culminate in determining the flag bearers of the Peoples Democratic Party for the 2007 elections.
Paragraph 5(viii) of the reliefs sought in the trial court is:
“Declaration that the plaintiff (i.e. the respondent in this court) is entitled to contest for any election of the 1st defendant.”
The grounds of the pending interlocutory appeal before us are mainly on jurisdiction. The scenario before us is as follows:
Before us is an interlocutory appeal. The appellants want their appeal heard because it questions the jurisdiction of the trial court to hear the respondent’s claim. They want a stay of the proceedings to suspend proceedings before the trial court until their appeal is disposed off by this court.
No, says the respondent. This court should not grant a stay now for if you do I would not be able to contest elections that come up very soon.
In Amadi v. NNPC (2000) 6 SC (Pt. 1) p. 66 at 82; (2000) 10 NWLR (Pt. 674) 76, the Supreme Court observed the dilatory effect of interlocutory appeal to the substantive suit and directed that the point on jurisdiction should be taken in the course of proceedings in the substantive claim, and any aggrieved party can appeal on both the issue of jurisdiction and the judgment on merit in the proceedings.
The reasoning of the Supreme Court being that interlocutory appeals cause unnecessary delay. Indeed they are a waste of resources and precious judicial time. The Supreme Court had cause to frown at such appeals. See Tukur v. Govt. of Gongola State (No.1) (1988) 1 NWLR (Pt. 68) p. 39; Globe Fishing Industries Ltd. v. Coker (1990) 11 SCNJ p. 56; (1990) 7 NWLR (Pt. 162) 265.
In the Amadi case the Supreme Court was of the view that counsel owe it, as a duty to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections, so that the adage Justice delayed is Justice denied may cease to apply to the proceedings in our courts.
In the Supreme Court case of Hon. Muyiwa Inakoju & Ors. v. Senator Rashidi Adewolu Ladoja & Ors. (2006) 18 NWLR (Pt. 1012) 667 the Supreme Court reasoned that where time is of the essence a court should be most reluctant to grant an application for stay of proceedings as such an application is antithesis to the speedy hearing of the case. In the said case the res was very much liable to time, as it was deposed in the supporting affidavit that the res will be extinguished by 29/5/07.
Depositions in paragraph 12(iv), (vi) of the counter-affidavit show that the res is very much liable to time.
Sub-paragraph (iv) of paragraph 12 the deponent says –
“that this application for stay, was filed to frustrate the case at the trial court and prevent the respondent from participating in the upcoming Presidential primaries of the Peoples Democratic Party coming up on the 3rd 17th December, 2006.”
and in sub-paragraph (vi)
“… that time is of the essence in this suit as the plaintiff (i.e. the respondent’s) claim will be overtaken by events by the end of December 2006.”
My Lords, the counter-affidavits of the respondent are replete with depositions that time is of the essence. That the res is liable to time.
This court has jurisdiction to preserve the res once the matter is on appeal.
In the unreported Supreme Court case earlier referred to the res had a life span of one year. It was liable to be extinguished on 29/5/07. In this case the res is liable to extinguish before the end of December 2006. There is a more urgent need to preserve the res in this case. Furthermore, I fail to see how the continuation of this case in the trial court will in any way prejudice or cause hardship to the appellants.
For this and the much fuller reasoning in the leading ruling of Hon. Justice O. O. Adekeye, JCA the application is refused and accordingly dismissed.
Application dismissed.
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Appearances
Chief J. K. Gadzama, SAN (with him, Mr. A. Adenipekun, SAN; B. J. Akomolafe; Remi Awe-Osho [Mrs.]; Aladesawe [Mrs.]; Mary Ekpere [Miss]; R. O. Yusuf, Esq.; C. I. Nwako, Esq.; C. N. Nwankwo [Mrs.]; R. Bassey [Miss]; C. P. Oli, Esq.; A. I. Uchegbu [Miss]; H. Odangla [Miss]; E. J. Gamaliel, Esq.; O. U. Ozumba, Esq.; U. Awa [Miss]; Paulyn Abulymen, Esq.; Bunmi Naiyeju [Mrs.]; K. Ogunwumiju, Esq.; Joke Opawale [Mrs.]; Oludotun Sowemimo; A. M. Kayode, Esq.; Isaih Opaaje, Esq.; A. A. Adebiyi [Mrs.])For Appellant
AND
Chief Wole Olanipekun, SAN (with him, Rickey Tarfa, SAN; Chief Adeniyi Akintola, SAN; Emeka Ngige, SAN; Adetunji Oyeyipo, SAN; Chief Mikel Adodaa; Dr. M. Ladan; Tayo Jegede; J. O. Odubela; O. Jolaawo; R. Oguneso; Henry Iyanya; I. Idris; Kola Olowookere; Weheed Gbadamosi; Pauline Tarfa [Mrs.]; Regina Okotie-Eboh [Miss]; Eubena Amedu; F. O. Bissong; O. J. Aboje; O. C. Onwueobuna; P. M. Ayam)For Respondent
