IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I. S.GALADIMA
Dated: 27th May 2019 SUIT NO: NICN/OW/64/2014
EMENIKE SYLVESTER IBE CLAIMANT/RESPONDENT
INTERNATIONAL CORROSION CONTROL LTD. DEFENDANT/APPLICANT
CHIDI B. NWORKA FOR THE CLAIMANT/RESPONDENT.
C.I. OBIMBA FOR THE DEFENDANT/APPLICANT.
This Defendant/Applicant caused an application to be filed on its behalf by way of a motion on notice on the 21/5/2019. The application is pursuant to Order 64 Rule 14 of the rules of this Court seeking for:
An order of Court for stay of proceedings pending the determination of the interlocutory appeal filed against the ruling delivered on 31/01/2019.
The grounds for which this application is founded are:
The defendant had on 31/01/2019 tendered a document captioned “Extract of the Board of Directors Meeting” which this Court rejected despite purportedly laying foundation regarding the way the said document was obtained or produced;
That a photocopy of a primary document which has accordingly satisfied the laid down requirements of the law, is admissible;
And that the Defendant’s case depended on the said rejected document.
The application is supported by an 8 paragraph affidavit and written address.
The Claimant/Respondent was served with the application on the 21/5/2019 the same day it was filed by the applicant. His counsel however elected to respond to the application orally on points of law.
The application which was adopted and moved on the 22/5/2019, raised a sole issue for determination thus: whether the applicant is entitled to an order for stay of proceedings by this Court pending the outcome of the interlocutory appeal filed against its ruling of 31/1/2019?
The arguments put forward by the learned Defendant’s Counsel, go thus:
This Court has a discretion to grant a stay of proceedings in consonance with the provisions of Order 64 rule 14 of the rules of this Court and by virtue of Section 6 (6) (a) of the constitution, the power to stay its proceedings where an interlocutory appeal is lodged against any of its rulings.
It is now trite law that in order for a stay to be granted, the court must be satisfied that the applicant has a pending, competent and arguable appeal and there are special and exceptional circumstances compelling enough for the grant of such stay – EZE V. OKOLONJI (citation supplied) relied upon.
Accordingly, by virtue of the applicant’s paragraphs 4 – 8 of its supporting affidavit, this applicant has deposed to special and exceptional circumstances necessitating the need to grant this application. Applicant reckons that in granting the application, the court is bound to consider what is fair to both sides. He cited NNPC AND ORS V. ODIDERE ENT LTD (citation supplied).
Being also that the grant is discretionary, learned counsel pleaded that having rejected the Defendant’s document from being tendered in the course of the proceedings before it, it will be fair for this court to allow it to appeal against this decision in order to get a reviewal by the Court of Appeal in the interest of justice. The applicant is convinced therefore, that since its appeal has accordingly been entered, it is entitled to have these proceedings stayed until the decision of the appellate court is made. Its counsel impressed on this court to grant this application.
As stated earlier, the Claimant’s/Respondent’s counsel made an oral response in opposition to this application and accordingly laid the guiding principle of law this court must adopt in considering this application, thus:
The application is misconceived accordingly because it does not comply with the provisions of Order 64 rule 14 (1) of the rules of this court in that none of the material ingredients exist in order to enable the grant of a stay, and in particular, no leave of court was sought by him.
Since the appellate court hasn’t granted leave to this applicant to appeal against the ruling of this court yet, it is misconceiving for the applicant’s counsel to inform this court that an appeal was duly entered and thus the need for a stay of proceedings.
The applicant has no right of appeal against the decision of this court interlocutorily and as such, the provisions of Order 64 rule 14 can not come to aid this applicant.
He animadverted further that this application is a wanton waste of time and a ruse to further delay this matter and as such, it must be dismissed with substantial punitive costs against the Defendant/Applicant. Citing and relying on the case of SKYE BANK V. IWU (citation supplied), he finally urged this court to dismiss this application with a cost of N2,000,000.00 to the respondent.
This is a 2014 matter which for one reason or the other, has lingered on to date. At the stage of making this application for stay of proceedings, the Claimant’s counsel was meant to cross examine the DW1 on his testimony in open court. The Defendant/Applicant has a grievance it seeks to ventilate at the appellate court against this court’s rejection of an exhibit which its witness, had sought to tender. There is no contending with its right of interlocutory appeal. The Supreme Court had decided in the case of SKYE BANK V. IWU (2018) ALL FWLR (Part 922) page 1 inter alia, that:
‘’My firm view on Sections 240, 243(2) and (3) and 36(2)(b) of the Constitution is that-
From the decision of the National Industrial Court there is a right of appeal to the Court of Appeal;
Appeal is of right to the Court of Appeal from any decision of the National Industrial Court on any question of fundamental rights under Chapter IV of the Constitution;
Appeal, is not as of right, but upon leave of the Court of Appeal, from any decision of the National Industrial Court other than an appeal on any fundamental rights question.’’ Per Ejembi Eko, JSC: [at page 205 LPELR (supra)].
Now, this applicant having elected to file an interlocutory appeal, has to first obtain the leave of the appellate court in order to have his appeal determined. Regardless of that, its counsel now applies for a stay of proceedings relying on Order 64 rule 14 sub rules (1), (2) and (3) 2017 NICN Rules to make his application. Those provisions state as follows:
(1) where a matter is on going and a party is applying for stay of proceedings pending appeal, the party shall in an application for stay of proceedings:
File an application for stay of proceedings pending appeal;
Pay for the compilation of the records of proceedings…
Exhibit certified true copies of the record of proceedings…and exhibit evidence that there is a valid appeal before the court of appeal;
Exhibit evidence that the appeal has been entered in line with the appropriate rules of the court of appeal;
Exhibit evidence that the party has been granted leave by the Court of Appeal, where leave is required by law or by the rules or practice directions of the Court of Appeal.
(2) where all the requirements in sub rule 1 of this rule have been satisfied, the court may grant or refuse to grant, the application for stay of proceedings after taking into consideration the provisions of Section 47 of the Act.
(3) an appeal to the Court of Appeal from the decision of the Court, shall not operate as a stay of execution of the judgment order, rulings or proceedings of the court, but the court May order a stay of execution unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of the court.
Stay of proceedings as the name therefore suggests, delays the trial process and should be granted only when absolutely necessary. In the case of Obi v Elenwoke (1998) 6 NWLR (Pt. 554) 436 @ 442-443 H-A; Oguntade JCA (as he then was) stated succinctly with reference to decided cases and other authorities, the law with respect to stay of proceedings. He said:
“On the grant of an order of stay of proceedings, the learned authors of Halsbury’s Laws of England 4th Edition Vol. 37 paragraph 442 at page 330 write:
‘The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantial merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.’
In Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) 224 at 235 the court of appeal re-stated the views of Apkata JCA (as he then was), in Prince Titus Arojojoye v. U.B.A.& Anor (1986) 2 NWLR (Pt. 20) 101 at 112 thus:
‘Whether or not to stay proceedings following an appeal against an interlocutory order depends on a number of factors. It is for the trial judge to exercise his discretion judicially bearing in mind the circumstances of each case. Invariably, however, where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of an appeal lodged against it by an aggrieved party. This is so because such an order can be made the subject of appeal if it ultimately becomes necessary following the final judgment. It saves time and expense to proceed with the case. It is the duty of every judge to eliminate situations which may unnecessarily cause delay in the administration of justice. On the other hand, if the appeal, if successful, will put an end to the proceedings in the trial court, prudence dictates that a stay of proceedings be granted.’ (Emphasis mine).
In Lawrence Okafor and Ors v. Felix Nnaife (1987) 4 NWLR (Pt.64) 129 at 137, the Supreme Court stressed that in the grant of an order staying execution or proceedings, the court should be guided primarily by the necessity to be fair to both parties.
The salient point to note therefore is that a stay of proceedings should not be granted where the interlocutory appeal following the application for stay of proceedings would not finally dispose of the case. It is advisable in such a situation that the aggrieved party waits till the final judgment to lodge an all embracing appeal. If however he chooses to file an interlocutory appeal, stay of proceedings should not be granted as that would lead to unnecessary delay in the administration of justice. A stay of proceedings can only be granted by the court where it is absolutely necessary and there is no other option open to the court.
The Hon. Justice Chinwe Iyizoba of the Court of Appeal, had admonished in a paper at the 2016 Induction Course for Newly Appointed Judges and Kadis held 23rd May – 3rd June, 2016 thus on pages 32 to 33 –
“In the case of International Agricultural Industries Ltd & Anor v. Chika Brothers Ltd (1990) 1 NWLR (Pt. 124) 70 at 80- 81, Obaseki JSC put the matter thus:
“It is sad to observe that it was at the tail end of the proceedings in the High Court that the interlocutory decision to reject the document was made. It is even sadder to observe that the proceedings before the High Court had to be stayed to allow the pursuit of appeal proceedings against the decision. Although the hearing before the court did not take more than an hour to conclude, it took 8 years for the appeal to travel from High Court through Court of Appeal to this court. If the plaintiff had allowed the learned trial Judge to conclude the hearing and deliver the judgment, he could still have had the opportunity to raise the issue of admissibility in the appeal courts.....”
It is pertinent to bear in mind that sometimes applications such as the one under consideration are used by unscrupulous litigants to frustrate and oppress a party with a good case in his effort to attain justice under the rule of law. For that reason judges must be alert to stop such litigants from undermining the due administration of justice by refusing to grant leave to appeal interlocutory decisions where leave is required”.
I reckon in going into the merit of this application made, that this Court is bound to decide what is fair to both sides as provided in Order 64 rule 14 above reproduced and even where a party has met the requirements of filing a notice of appeal, exhibited evidence of due payments, transmitted records of proceedings, he is still bound to obtain and establish that leave has indeed been granted by the appellate court in order to be entitled to having the proceedings stayed indefinitely – see Order 64 rule 14 (1) (e).
All I see before me is a notice of appeal without any leave granted by the Court of Appeal to prosecute same. If any leave at all was first obtained and granted by this applicant, it has not been duly exhibited for the consideration of this court. Besides, there is absolutely nothing contained in the applicant’s affidavit in support of this application (particularly in paragraph 4 of same) or any exhibits attached to establish that the leave of the Court of Appeal had been granted. Assuming it was even granted, I am still bound to consider the equity of the application for stay of these proceedings giving the background of the cause and the stage of reached. I’m reasonably satisfied and convinced therefore, that granting this application, is potentially injurious as it portends to unduly further delay this cause. It shall not be in the interest of justice to grant same. It is thus my esteem believe that granting this application, negates the practice of this court to do justice diligently and timorously. I also concede wholly with the learned respondent counsel’s submission that it shall be inequitable to grant this application in view of the fact also that the parties have the overall right to appeal against the final decision of this Court if dissatisfied in the end.
This application for stay of proceedings is unmeritorious and same is accordingly dismissed with N50,000.00 cost awarded to the Claimant/Respondent.
The Claimant’s counsel may commence with the cross examination of DW 1 forthwith.
Delivered in Owerri, this 27th day of May, 2019.
Hon. Justice Ibrahim Suleiman Galadima.