THE REGISTERED TRUSTEES OF PEOPLES CLUB OF NIGERIA V. THE REGISTERED TRUSTEES OF ANSAR-U-DEEN OF NIGERIA & ORS.
(2012)LCN/5469(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of June, 2012
CA/L/711M/2010
RATIO
WORDS AND MEANING: “STAY”
Instructively, the word ‘stay’ denotes the postponement or halting of a proceeding, judgment, et al. It also denotes an order to suspend or halt all or part of a judicial proceeding or a judgment resulting from that proceeding. See BLACK’S LAW DICTIONARY, 9th edition, 2009 at 1548.
Invariably, the need for an order of stay of proceedings arises where a trial court rules on an interlocutory point. Thus, any party aggrieved by that ruling may appeal against it. And after filing the appeal, the aggrieved party may equally apply to the court for stay of the proceedings pending the determination of the appeal.PER I.M.M. SAULAWA, J.C.A
STAY OF PROCEEDINGS: WHICH COURTS HAVE THE POWER TO GRANT STAY AND PURPOSE OF GRANTING STAY
The fact that the courts, both the trial and appellate, have powers to grant an order of stay of proceedings (or execution of judgment, as the case may be) is not all in doubt. See KIGO (NIG.) LTD. VS. HOLMAN BROS (NIG.) LTD. & ANR. (1980) 5 – 7 SC 60, wherein it was aptly held by the Supreme Court that the High Court and the Court of Appeal, (nay) the apex court itself, have an inherent and statutory power to grant a stay of further proceedings pending the determination of an appeal filed in a case. This is with a view to preserving the res (subject matter) in the action, so that the appeal will not in any way be rendered nugatory. In essence, both the trial court, (from which the appeal emanates), and the appeal court (to which the appeal lies) have the onerous duty to preserve the res. Thus, they are imbued with the inherent power of stay of proceedings in the matter.PER I.M.M. SAULAWA, J.C.A
APPEAL: FROM WHICH COURT DOES AN APPEAL LIE TO THE COURT OF APPEAL AS OF RIGHT
It’s trite, that by virtue of the provisions of Section 241 of the 1999 Constitution, (supra) an appeal shall lie from the decisions of the Federal or State High Court to the Court of Appeal, as of right, in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting ot first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating o companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
Contrariwise, by virtue of subsection (2) of section 241 of the Constitution (supra), there shall be no right of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
(c) without leave of the Federal High Court or High Court or the Court of Appeal from a decision of the Federal High Court or that High Court or the Court of Appeal.
Thus, in all other cases, subject to the provisions of Section 241 of the Constitution, an appeal shall lie from the decisions of the Federal or State High Court to the Court of Appeal, with leave of the Federal or state High Court or the Court of Appeal. See section 242(1) of the 1999 Constitution, as amended.PER I.M.M. SAULAWA, J.C.A
FAIR HEARING: THE PRINCIPLE OF FAIR HEARING IS NOT A TECHNICAL BUT A SUBSTANTIVE DOCTRINE
Indeed, it’s trite that the principle of fair hearing is not merely a technical doctrine. It’s undoubtedly one of substance. And it goes beyond the question of whether a party has been denied hearing. It is whether a party, who’s entitled to be heard before the determination of the case, had in fact been accorded the opportunity of hearing. And once an appellate court is convinced that the party entitled to be heard before a decision was reached was not accorded the opportunity of hearing the decision, order or judgment thus entered is bound to be set aside. See KOTOYE VS. CBN (1989) 1 NWLR (Pt.98) 419 at 448; ADIGUN VS. AG OYO STATE (NO.1) (1987) 1 NWLR (Pt.53) 678.PER I.M.M. SAULAWA, J.C.A
FAIR HEARING: EFFECT OF BREACH OF THE RIGHT TO FAIR HEARING
It goes without saying, that the right of fair hearing, being a fundamental constitutional right, the breach thereof in any given trial [or investigation] tantamount to the entire proceedings of the court being rendered null, void and of no effect whatsoever.PER I.M.M. SAULAWA, J.C.A
SERVICE OF PROCESSES: LACK OF SERVICE CAN AFFECT THE RIGHT TO FAIR HEARING OF A PARTY
Thus, due to the fundamentally far-reaching nature of the doctrine of fair hearing, the court has an onerous duty under the law to ensure that service of all material processes, including hearing notice, were effectively served upon each and every party in the case. This is absolutely so, because service of every material court process is mandatory, thus failure to effect service thereof upon the parties is fatal to the proceedings embarked upon by the court. See SCHRODER & CO. VS. MAJOR & CO. (NIG.) LTD. (1989) 1 NSCC 399 at 406.PER I.M.M. SAULAWA, J.C.A
SERVICE: AFFIDAVIT OF SERVICE: PURPOSE OF AN AFFIDAVIT OF SERVICE
In the case of OKESUJI VS. LAWAL (1991) 1 NWLR 661, the apex court was recorded to have authoritatively stated that –
The purpose of affidavit of service is to convince the court that the persons on whom the processes are to be served have been duty served. Where there is no affidavit of service and the person served with a court or any other processes of court appears in court, there is no further need to insist on proof of service. There cannot be a better proof than the appearance in court of the person on whom the process was served. Per Olatawura, JSC (of blessed memory) at 678.PER I.M.M. SAULAWA, J.C.A
INJUNCTION: INTERIM OR INTERLOCUTORY INJUNCTION IS GRANTED BASED ON DISCRETION
Indeed, it’s a well settled doctrine, that an interim [or interlocutory] order of injunction, being an equitable remedy, is discretionary in nature. However, it’s not merely granted as a matter of course, or for the asking. No. The fact that the court has an unfetted discretion in the exercise of judicial powers thereof, notwithstanding. It must be ensured that such a discretionary power is exercised not only judicially, but equally judiciously. See UNILAG VS. AIGORO (1985) 1 NWLR (Pt. 1) 143: NIG ARAB BANK LTD VS. OGUERI (1990) 6 NWLR (Pt. 159) 751.PER I.M.M. SAULAWA, J.C.A
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF PEOPLES CLUB Appellant(s)
AND
1. REGISTERED TRUSTEES OF ANSAR-U-DEEN OF NIGERIA
2. THE ATTORNEY-GENERAL OF LAGOS STATE
3. THE ATTORNEY-GENERAL OF EDO STATE
4. THE REGISTRAR OF TITLES, LAGOS STATE Respondent(s)
I.M.M. SAULAWA, J.C.A, (Delivering the Lead Ruling): The instant application was filed by the Appellant on July 12, 2010. By the application in question, the Appellant has sought the following sole relief:
“… an order staying further proceedings in suit No. LD/4740/94 pending before the Lagos State High Court pending the determination of the Appellant’s Appeal to the Court of Appeal…”
The application was supported by a 48 paragraphed affidavit, deposed to on 12/7/10 by one Ngozi Rita Okoli, a legal practitioner in the firm of Messrs G.O.K. Ajayi & Co, the Applicant’s solicitors. Annexed to the affidavit were copies of various exhibits, viz:
(i) Exhibit NR01 – regarding the ruling delivered on 25/6/10 by the Hon. Justice T. Ojikutu – Oshode in
Suit No. LD/4749/1994 between the parties herein.
(ii) Exhibit NR02 – regarding the motion dated 01/12/09 but filed on 08/12/09 in the lower court by the Applicant’s counsel.
(iii) Exhibit NR03 – regarding the Notice of Appeal dated and filed on 25/11/09 in the lower court by the Applicant’s counsel.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPLICATION:
The genesis of the application is traceable to December 16, 1998. That was the date on which the Applicant filed an amended writ of summons in the court below, seeking various declaratory and injunctive reliefs against the Respondents. The parties having filed the respective pleadings thereof, the case eventually proceeded to trial. However, on 18/11/09, when the case later came up for continuation of hearing, Mrs. W.A. Ogude of Claimant’s counsel made a submission to the effect thus:
Mrs. Ogude: Chief G.O.K. Ajayi who is personally seized of this matter was due for an eye operation at 10 am yesterday morning, But the operation could not proceed because of personal reasons. Therefore he is not in a position to go on with the proceedings today. Our 1st witness Chief Okoye Eze, who is due for Re-examination this morning, has been relocated finally to the East by his family for health reasons. Since his health has not improved, his intent to try traditional medicine. We have also written to Honourable Chief Judge in June, 2009 for transfer. We respectfully seek an adjournment to call our other witnesses.
Not unexpectedly, Mrs. Ogude’s oral application for adjournment was vehemently objected to by Alhaji Femi Okunnu, SAN (the 1st Respondent’s counsel) on the grounds, inter alia, that-‘
Learned Friend Mrs. Ogude has been present on every occasion before the court in this matter as Chief Ajayi’s junior on occasions she had conducted the trial on behalf of the Claimants, She is before the court this morning with three other juniors. Certainly she can continue the trial on behalf of the Claimants.
Consequently, the lower court, in exercising the discretion thereof, ruled thus:
Court: This suit is further adjourned to 19th day of November, 26th day of November, 2009 and 2nd day December, 2009 for continuation of trial. Cost in the sum of N5,000.00 each is awarded in favour of 1st Defendants respectively.
The Applicant’s senior counsel, Chief G.O.K. Ajayi, SAN did not take kindly to the ruling in question. Thus, he filed a notice of appeal in the lower court, on 25/11/09, against the said ruling.
On the part thereof, the 1st Respondent deemed it expedient to file an application on 24/02/12, seeking an order dismissing the Appellant’s appeal for want of diligent prosecution, pursuant to order 8 Rule 18 of the Court of Appeal Rules, 2011. That application prompted the Appellant to file an application on 13/3/12, seeking an enlargement of time to compile and transmit the record of appeal, pursuant to order 8 Rules 4 & 9, and order 20 Rule 2 of the Court of Appeal Rules, 2011, respectively.
On O2/5/12, when the said applications came up for hearing, the Appellant’s learned senior counsel, Chief Ajayi, SAN submitted, inter alia, thus:
However, the order served on the lower court has been disregarded. The learned trial judge proceeded with the matter and delivered judgment. The trial judge has preempted the order of this court and wrote the judgment. I want to hold that once the learned judge become aware this court wanted to hear our application, she was bound to hold hands and ought to have respected the order of the court.
In response to Chief Ajayi, SAN’s submission, the 1st Respondent’s learned counsel, L.O. Karim Esq.; submitted thus:
I submit that the application filed on 12/7/10 by the Appellant is stale because judgment has already been delivered by the lower court on 16/12/11. We filed a counter affidavit on 03/9/10. It was served on all the parties pursuant to this, we also filed an application on 24/02/12 seeking to dismiss the appeal because the appeal was not entered. In the circumstance, we urge the court to strike out the said application.
Chief Ajayi, SAN, accordingly replied to the 1st Respondent counsel’s submission as follows:
The only thing I would want the court to bear in mind is that, when the court considered the matter, it directed certain parties be served so that they too be heard. The question is how have they responded? i.e. the Attorney General of Edo State, as well as the learned trial judge.
I have accorded an ample consideration upon the nature and circumstances surrounding the instant application vis-a-vis the oral submissions of Chief Ajayi, SAN and L.O. Karim Esq. for the Appellant and 1st Respondent, respectively.
It is pertinent to allude to the fact that, on the said 02/5/12, the Registrar had confirmed to the court that the 2nd, 3rd and 4th Respondents were duly served with the hearing notice against that date. As alluded to above, the instant application filed on 12/7/10 merely seeks an order of this court to stay further proceedings of the substantive case (LD/4749/94), the subject matter of the present appeal.
Most regrettably, however, the appeal itself has not been entered to this very moment. The notice of appeal was filed on 25/11/09. Ever since that date, the Appellant has not deemed it necessary or expedient to see to it that the Record of Appeal was compiled and transmitted from the lower court to this court timeously. Not surprisingly, on 24/02/12, the 1st Respondent’s counsel, Karim Esq. filed in the court a motion on notice seeking –
“An order dismissing the Appellants appeal for want of diligent prosecution …”
The application was brought pursuant to order 8 Rule 18 of the Court of Appeal Rules, 2011. Not unexpectedly, it was the said 1st Respondent’s motion that must have served as a wake-up call, thus prompting the Appellant to file the application (13/3/12) for enlargement of time within which to compile and transmit the Record of appeal in question.
In view of the foregoing highlight, there is every cogent, and rather compelling, reason for me to uphold the 1st Respondent counsel’s submission, to the effect that the present application of the Appellant has become “stale”. The reason being that the proceeding, which the application seeks to be stayed, has been concluded and judgment entered by the lower court.
Instructively, the word ‘stay’ denotes the postponement or halting of a proceeding, judgment, et al. It also denotes an order to suspend or halt all or part of a judicial proceeding or a judgment resulting from that proceeding. See BLACK’S LAW DICTIONARY, 9th edition, 2009 at 1548.
Invariably, the need for an order of stay of proceedings arises where a trial court rules on an interlocutory point. Thus, any party aggrieved by that ruling may appeal against it. And after filing the appeal, the aggrieved party may equally apply to the court for stay of the proceedings pending the determination of the appeal.
The fact that the courts, both the trial and appellate, have powers to grant an order of stay of proceedings (or execution of judgment, as the case may be) is not all in doubt. See KIGO (NIG.) LTD. VS. HOLMAN BROS (NIG.) LTD. & ANR. (1980) 5 – 7 SC 60, wherein it was aptly held by the Supreme Court that the High Court and the Court of Appeal, (nay) the apex court itself, have an inherent and statutory power to grant a stay of further proceedings pending the determination of an appeal filed in a case. This is with a view to preserving the res (subject matter) in the action, so that the appeal will not in any way be rendered nugatory. In essence, both the trial court, (from which the appeal emanates), and the appeal court (to which the appeal lies) have the onerous duty to preserve the res. Thus, they are imbued with the inherent power of stay of proceedings in the matter.
By virtue of the provisions of order 54 Rule 1 of the High Court of Lagos State (civil procedure) Rules, 2004 –
1. Where any application is made to the judge for stay of execution or of proceedings under any judgment or decision appealed from, such application shall be made by notice of motion supported by affidavit setting forth the grounds upon which a stay of execution or proceedings is sought.
Where as, by virtue of Rule 2 of the said order 54 –
2. An application (sic) for stay of a judgment (or stay of proceedings as the case may be) shall compile the records of appeal within 90 days from the date of filing a notice of appeal and where the record is not so compiled, the Respondent may apply to strike out the application or discharge the order if already granted.
Under order 7 of the Court of Appeal Rules, 2011, where an application for stay of proceedings (or execution of judgment) has been refused by the court below, a similar application may be made to Court of Appeal within 15 days after the date of the lower court’s refusal in question.
It’s trite, that by virtue of the provisions of Section 241 of the 1999 Constitution, (supra) an appeal shall lie from the decisions of the Federal or State High Court to the Court of Appeal, as of right, in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting ot first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating o companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
Contrariwise, by virtue of subsection (2) of section 241 of the Constitution (supra), there shall be no right of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
(c) without leave of the Federal High Court or High Court or the Court of Appeal from a decision of the Federal High Court or that High Court or the Court of Appeal.
Thus, in all other cases, subject to the provisions of Section 241 of the Constitution, an appeal shall lie from the decisions of the Federal or State High Court to the Court of Appeal, with leave of the Federal or state High Court or the Court of Appeal. See section 242(1) of the 1999 Constitution, as amended.
In the instant case, it’s obvious that the application has not come within the purview of any of the conditions outlined under section 241(1)(a) – (f) of the Constitution, to qualify it as an appeal as of right. The Appellant ought to have first applied to the court below. And that where the court below refuses to grant an order to stay of proceedings, the Appellant would have had the liberty to file a similar application in this court. See LEKWOT ZAMANI & 6 ORS VS. JUDICIAL TRIBUNAL ON CIVIL AND COMMUNAL DISTURBANCES IN KADUNA STATE & 1 OR (1993) 2 NWLR (Pt.276) 410 at 445 paragraphs A – C per Musdapha, JCA (as he then was); UZOUKWU VS. EZEONU II (1991) 6 NWLR (Pt.200) 709 at 762. Per Nasir, PCA. Incidentally, Chief G.O.K. Ajayi SAN was the Appellant’s leading counsel in Zamani Lekwot’s case (supra).
Thus, even by virtue of the fact that the Appellant has failed to apply to the court below for stay of proceedings, the application has been rendered rather incompetent.
What’s more, by virtue of the provisions of order 7 Rule 1 of the Court of Appeal Rules, 2011, every application to the court (i) shall be by notice of motion supported by affidavit, (ii) shall state the Rule under which its brought, and (iii) shall state the grounds for the relief sought. The instant application is bereft of any ground. Of the 48 paragraphs of the affidavit in support of the application, paragraphs 4, 5, 6, 7, 8, 15, 16, 17, 18, 25, 26, 27, 28, 29, 31, 32, 34, 35, 41, 43, 44, 45, 46, & 47 appear to contain some extraneous matters bordering on objections, legal argument or conclusions, contrary to sections 86 & 87 of the Evidence Act. Such averments, as in the paragraphs in question, ought to have been provided under grounds. The said paragraphs are liable to be discountenanced and struck out. Thus, without the paragraphs in question, the affidavit is rendered grossly use less.
Instructively, in the course of the submission thereof, Chief G.O.K. Ajayi, SAN had alluded to the fact that the application in question could not be moved because of lack of service of hearing notice on some of the Respondents, especially the 2nd and 3rd Respondents.
Undoubtedly, the issue of service of hearing notice regarding court process borders on the trite fundamental principle of fair hearing. And there is no gainsaying the fact, that fair hearing, as cherishingly enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended, is central to the concept of rule of law. The concept of rule of law is itself predicated upon the twin Latin Maxims: (i) Audi alteram partem (hear the other party); and (ii) Nemo judex in causa suo (a judge must not give judgment in his own cause). These two fundamental concepts of the rule of law are invariably inextricably interwoven with justice system. See LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE VS. GANI FAWEHINMI (1985) 2 NWLR 300; KOTOYE VS. CBN (2000) 16 NWLR 71 at 103 – 104.
By virtue of the well set out provisions of section 36(1) of the Constitution (supra) –
(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within o reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Indeed, it’s trite that the principle of fair hearing is not merely a technical doctrine. It’s undoubtedly one of substance. And it goes beyond the question of whether a party has been denied hearing. It is whether a party, who’s entitled to be heard before the determination of the case, had in fact been accorded the opportunity of hearing. And once an appellate court is convinced that the party entitled to be heard before a decision was reached was not accorded the opportunity of hearing the decision, order or judgment thus entered is bound to be set aside. See KOTOYE VS. CBN (1989) 1 NWLR (Pt.98) 419 at 448; ADIGUN VS. AG OYO STATE (NO.1) (1987) 1 NWLR (Pt.53) 678.
It goes without saying, that the right of fair hearing, being a fundamental constitutional right, the breach thereof in any given trial [or investigation] tantamount to the entire proceedings of the court being rendered null, void and of no effect whatsoever.
Thus, due to the fundamentally far-reaching nature of the doctrine of fair hearing, the court has an onerous duty under the law to ensure that service of all material processes, including hearing notice, were effectively served upon each and every party in the case. This is absolutely so, because service of every material court process is mandatory, thus failure to effect service thereof upon the parties is fatal to the proceedings embarked upon by the court. See SCHRODER & CO. VS. MAJOR & CO. (NIG.) LTD. (1989) 1 NSCC 399 at 406.
In the case of OKESUJI VS. LAWAL (1991) 1 NWLR 661, the apex court was recorded to have authoritatively stated that –
The purpose of affidavit of service is to convince the court that the persons on whom the processes are to be served have been duty served. Where there is no affidavit of service and the person served with a court or any other processes of court appears in court, there is no further need to insist on proof of service. There cannot be a better proof than the appearance in court of the person on whom the process was served. Per Olatawura, JSC (of blessed memory) at 678.
Another very fundamental reason which equally renders the instant application incompetent and rather nugatory, is the fact that the lower court had since the 16/12/11 delivered judgment in the suit (NO. LD/4749/94) in question. Thus, the res (the proceedings) which the application seeks to halt (and preserve), has already become nugatory; there is no longer any res to be preserved.
Indeed, it’s a well settled doctrine, that an interim [or interlocutory] order of injunction, being an equitable remedy, is discretionary in nature. However, it’s not merely granted as a matter of course, or for the asking. No. The fact that the court has an unfetted discretion in the exercise of judicial powers thereof, notwithstanding. It must be ensured that such a discretionary power is exercised not only judicially, but equally judiciously. See UNILAG VS. AIGORO (1985) 1 NWLR (Pt. 1) 143: NIG ARAB BANK LTD VS. OGUERI (1990) 6 NWLR (Pt. 159) 751.
In the recent case of GADI VS. MALE (2010) 7 NWLR (Pt, 1193) 223, this court had had the opportunity to once again re-echo the trite general principle that –
“An injunction normally lies regarding live issues. Thus, an injunction will not lie in respect of a dead issue, in the sense that where an act (or action) complained of is completed; it cannot in law be resuscitated. Indeed, it is a legal impossibility to resurrect a dead matter to attract or take advantage of an injunction. Per Saulawa, JCA at 275, paragraphs E – G.
See also AG ABIA STATE VS. AG FED (2006) 6 NWLR (Pt. 1005) 205: ILECHUKWU VS. IWUGO (1989) 2 NWLR (Pt. 101) 99: TOTAL NIG. PLC VS. EFAKPOKIRE (1998) 5 NWLR (Pt. 549) 307: AG FED VS. AG ABIA STATE (NO. 2) (2002) 6 NWLR (Pt. 764) 542. respectively.
Admittedly, by virtue of the provisions of order 4 Rule 6 of the Court of Appeal Rules (supra), this court has an unfetted power to entertain an application to preserve the res or status quo ante belum, pending the determination of the appeal, one way or the other. The provisions of order 7 Rule 4 of the Court of Appeal Rules (supra) notwithstanding. See UBA PLC VS. MODE NIG. LTD (2000) 1 NWLR (Pt.640) 270; DENTON-WEST VS. MUOMA, SAN (2008) 6 NWLR (Pt.1083) 418; ALAMIEYESEIGHA VS. IGONIWARI (NO.1) (2007) 7 NWLR (Pt.1034) 506; GADI VS. MALE (supra) at 279 paragraphs B – E respectively.
My reason for entertaining the above contention is not farfetched. The provisions of order 7 Rule 4 of the Court of Appeal Rules are evidently of general application. Contrariwise, the provision of order 4 Rule 6 is rather of specific application. And the law is well settled, that where a statute (the Grand Norm itself inclusive) or rule contains a general provision, as well as a specific provision, the specific provision shall prevail over the general provision. See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423: AG FED VS. ABUBAKAR (2007) 10 NWLR (Pt.1041) 1; GOV. OF KADUNA STATE VS. KAGOMA (1982) 6 SC 87; OSADEBEY VS. AG BENDEL STATE (1991) 1 NWLR (Pt.169) 525; GADI VS. MALE (supra) at 279 paras. F – H.
I think, there’s a need for me to equally reiterate the trite cardinal doctrine, that courts (nay tribunals) of law, should at all times, humanly and justifiably possible, guard their jurisdiction (both inherent and statutory), not only courageously, but also jealously. But there is a caveat! And that’s, in doing so, they should not blatantly and recklessly resort to making orders in vain. See EPEROKUN VS. UNILAG (1986) 4 NWLR (Pt. 34) 162, UKEJIANYA VS. UCHENDU (1950) 13 WACA 45, BADEJO VS. FED MIN. OF EDUCATION (1996) 8 NWLR (Pt.464) 15; ANAEKWE VS. MASHASHA (2001) 12 NWLR (Pt.726) 70; ABUBAKAR VS. SMITH (1973) 6 SC 31, AG ABIA STATE VS. AG FED (2006) 16 NWLR (Pt. 1005) 265; GADI VS. MALE (supra), where in this court emphatically admonished that –
“A court of law must not throw caution to the wind and recklessly embark on granting unenforceable order in vain,”
Per Saulawa, JCA, at 274 – 275 paragraphs H -A.
See also ABUBAKAR SMITH (1973) 6 SC 31: ANAEKWE VS. MASHASHA (2001) 12 NWLR (Pt. 726) 70, AG ABIA STATE VS. AG FED (2006) 16 NWLR (Pt. 1005) 265respectively.
I have, in the course of this ruling, refrained from delving (or straying) into the substance or merits raised in the appeal and the other applications filed by both the Appellant and 1st Respondent which are still pending. By doing so, I have had at the back of my mind the trite golden principle, to the effect that –
At an interlocutory stage, it behoves the court to exercise an extra-caution and avoid making any comment or observation therein that may in effect predetermine the substantive or main issues in the appeal which are relative to the interlocutory application. See GADI VS. MALE (supra) at 274 – 275, paragraphs H – A.
Hence, in the light of the foregoing postulation, I have no hesitation whatsoever in coming to the most inevitable conclusion, that the present application, filed by the Appellant on 12/7/10, is grossly incompetent, and same is hereby struck out by me.
There shall be no order as to costs.
JOHN INYANG OKORO, J.C.A: I read before now the Ruling of my learned brother, Saulawa, JCA just delivered. I agree that the Appellant/Applicant’s Motion filed on 12th July, 2010 is grossly incompetent and ought to be struck out. The Applicant herein is seeking for an order staying further proceedings in suit No. LD/4740/94 pending before the Lagos State High Court pending the determination of the Appellant’s appeal to the Court of Appeal. There is however evidence before us that the court below had since 16th December, 2011 delivered Judgment in the said suit. Since the proceedings sought to be stayed is now extinguished, there is nothing left to be stayed. Having said so, I adopt the detailed reasons given in the lead Ruling by my learned brother, Saulawa, JCA, as mine. Accordingly, this application is also struck out by me. I also make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A: I have been priviledged to read before now, the lead Ruling just delivered by my learned brother I.M.M, Saulawa, JCA.
I agree with his reasoning and his conclusion that the present application is devoid of merit, grossly incompetent, and same is struck out by me.
I also abide by the consequential order made as to costs, that there shall be no order as to costs.
Appearances
Chief G.O.K. Ajayi SAN,
W.A. Ogude Esq.
O.O, Phillips,
A.G. Adegbenro Esq.
M.A. OgunbojedeFor Appellant
AND
L.O. Karim Esq.
Patrick Ojiehanor Esq.For Respondent
