IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: MONDAY 3RD JUNE 2019 SUIT NO. NICN/EN/39/2017
DR. ANIKWE JOSEPHAT UCHENNA…CLAIMANT/RESPONDENT
UNIVERSITY OF NIGERIA NSUKKA (UNN)
PROF. BENJAMIN OZUMBA DEFENDANTS/
PROF. EMMANUEL EZEANI APPLICANTS
PROF. NOBLE NWEZE
CHIEF E.C. UGWUMGBOR FOR THE CLAIMANT.
C.V. EJIKE-UME FOR THE DEFENDANTS.
This suit was commenced via Complaint dated and filed 3rd July 2017. It was accompanied with Statement of Facts, wherein the following reliefs were claimed in paragraph 33 thereof:
A DECLARATION that the deliberate refusal of the Defendants to pay Claimant his due salaries, outstanding approved out pocket expenditures and 15 months’ donations/contributions collected under deceit since the termination of his appointment in May 2014 was wrongful, unfair and without cause.
A DECLARATION that the Claimant is entitled to be paid the sum of N9,589,700.00 (Nine million five hundred and eighty-nine thousand seven hundred naira) only representing two month’s salary owed to him as a regular staff of the 1st Defendant’s Entrepreneurship Development Centre (EDC) South East Zone, Onitsha, Five month’s salary as transition staff, outstanding approved out of pocket expenditures and refund of fifteen (15) months’ money collect from the Claimant by the Defendants under deceit as donation/contribution to sustain the EDC Onitsha as training wing of the 1st Defendant’s Centre for Entrepreneurship and Development Research (CEDR).
AN ORDER mandating the Defendants to pay to the Claimant the sum of N9,589,700.00 (Nine million five hundred and eighty-nine thousand seven hundred naira) only which sum represents two months’ salary owed to him as regular staff of the 1st Defendant’s Entrepreneurship Development Centre (EDC) South East Zone, Onitsha, Five months’ salary as a transition staff, outstanding approved out of pocket expenditures and refund of fifteen (15) months’ money collect from the Claimant by the Defendants under deceit as donation/contribution to sustain the EDC Onitsha as training wing of the 1st Defendant’s Centre for Entrepreneurship Development Research (CEDR).
10% court interest of the said sum of N9,589,700.00 (Nine million five hundred and eighty-nine thousand naira) only from the date of the judgment until the whole sum is liquidated.
Cost of litigating this suit.
N10,000.000.00 [sic] (Ten million naira) only being general damages suffered by the claimant as a result of the Defendants’ refusal to pay him due salaries, outstanding approved out of pocket expenditures and huge sums of money collected under deceit by the Defendants from the Claimant’s salary.
The defendants filed Statement of Defence and Conditional Memo of Appearance 19th October 2017 alongside with a Notice of Preliminary Objection [NPO]. The NPO was moved on 7th March 2018 and the ruling was delivered on 17th April 2018 dismissing the NPO in its entirety. Subsequently, the case was set down for definite hearing on 24th May 2018. On 24th May 2018, the defence counsel sent in letter asking for adjournment. The Court acceded and adjourned it to 11th July 2018 for definite hearing. Before this date, the defendants filed application for stay of proceedings on 9th July 2018. The application for stay was moved and dismissed on the 11th July 2018; and the suit fixed for definite hearing on 22nd October 2018. But before this date, His Lordship, Hon. Justice Essien, who was presiding over the matter, was transferred from the Enugu Division, while I replaced him.
The matter came up before me first on 12th December 2018 and on the agreement of counsel to the parties, was adjourned to 16th January 2019 for hearing. On 16th January 2019 when the matter came up, the learned counsel to the claimant informed the Court of a letter from the learned counsel to the defendants [letter is at p. 216 of File], asking for a stand-down because, he was at the Court of Appeal. On the strength of this, the matter was stood down till the end of the Cause List for the day, and reopened at 11:09 am thereafter; and the learned counsel to the defendants had still not turned up. At this turn of events, the learned counsel to the claimant went to history lane and narrated the trajectory of the case till this point, showing the defendants were just trying to stall the case. Prominent in the evidence of bad faith was that, the Chambers of the learned counsel to the defendants had many lawyers and yet, none turned up for the case this particular date. The learned counsel argued that, this was a deliberate ploy to stall proceedings here, before they obtain leave at the Court of Appeal, to file another application for stay of proceedings before the Court of Appeal because, the one filed here, was struck out. The learned counsel to the claimant asked for cost of N50,000; and N5,000 was awarded, while the case was adjourned to 11th March 2019 for definite hearing.
As said by the learned counsel to the claimant, on 11th March 2019, the learned counsel to the defendants informed the Court that they filed an application for leave to appeal against the ruling on the NPO and also filed another application at the Court of Appeal for stay of proceedings. On the strength of this information, the learned counsel orally urged the Court to stay proceedings until the determination of the application for stay at the Court of Appeal. The argument was that, once an application is before the Court of Appeal, the lower court must stay proceedings to enable the Court of Appeal to determine the application. The learned counsel cited Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 and Vaswani Trading Co. Ltd v. Savalac (1972) ALL NLR at 483. The learned counsel urged the Court not to open the case on that date.
The learned counsel to the claimant replied, by saying that, Order 64, Rule 8(1)-(iii) of the NICN Rules says, an appeal does not operate as stay. The learned counsel to the claimant argued that, no record of appeal had been complied, no notice of appeal had been filed, and that, it is only when leave had been granted by the Court of Appeal that, the defendants could lawfully approach this Court for stay. The learned counsel referred to Order 64, Rules 8(1) & (2) and 13 of the NICN Rules and urged the Court to refuse the application. The learned counsel to the defendants replied on points of law, by saying that, the rules of this Court cited by the claimant’s counsel are not applicable because, they deal with application filed before this Court and not one filed at the Court of Appeal and that, these rules only deal with when an appeal had been entered, and not with application for leave to appeal, which they have lodged at the Court of Appeal; and cited Order 1, Rule 5 of the Court of Appeal Rules 2016.
Thus, ended the oral addresses of counsel to the parties and ruling was adjourned to 13th May 2019 but, could not be delivered on that date because, it was not ready and was further adjourned to 20th May 2019 and it was still not ready, and thereafter adjourned sine die till communication of delivery date to the counsel to the parties. The next thing is to go to my decision since there were no written addresses filed.
First, I have checked the file and could not find any evidence that another application for stay of proceedings, as claimed by the learned counsel to the defendants, was filed at the Court of Appeal. For a proper application before this Court, this, being the fulcrum of the application, the purported application before the Court of Appeal, ought to be exhibited in an affidavit in a formal motion on notice. To make matters worse, a CTC of it was not even brought to the Court and tendered from the Bar. An application for stay of proceedings is one granted at the discretion of the Court.
All the authorities cited by the learned counsel to the defendants did not say discretion of the courts in granting this type of applications is done away with. It needs no citation of cases that, the grant of application for stay of proceedings, is not a matter of course. It is one, which must be predicated on sound reasons before it could be granted. No sound reason has been given for this application. Not an iota of reason had even been offered for this application other than that, once an application is before a superior court, the lower court must demur till the superior court deals with the application; hence, this Court must defer for the Court of Appeal to finish with the application for stay filed before it, before it can proceed with this case. Obviously, the arguments of the learned counsel to the defendants is that, it does not matter whether the whole purpose of the application for stay of proceedings is to stall the matter, proceedings must be stayed, once it is announced that similar application for stay had been filed at the Court of Appeal. I beg to defer. This cannot be the intendment of the authorities relied upon and they, in fact, did not decide anything like that. The law is not an ass. The learned counsel to the defendants is very wrong in his views. The authorities he cited supported the facts that application for stay of proceedings must be brought bona fide before it could be granted.
I wish to cite the Court of Appeal in Ogboru v. President Court of Appeal & Anor (2005) LPELR-7473 (CA) 13, paras. A-E, where the Court of Appeal stated that:
“…it has to be borne in mind that a stay of proceedings is at the discretion of the court. The court will not grant it where it will inflict greater hardship than it would avoid, the applicant’s right of appeal notwithstanding. Also the application will be refused where the appeal is frivolous. I am of the view that an appeal where there is no right of appeal is not only frivolous; it amounts to abuse of process of court…Being a discretionary remedy, the order cannot be granted where the applicant has not demonstrated that it is equitable and just to grant a stay of proceedings.” [Underlining for emphasis]
I am particularly concerned with the underlined portions of the quotation. Where does the pendulum of hardship swing in granting or refusing this application? Have the defendants/applicants demonstrated that it is equitable to grant this application? In deciding these factors, I think the Court takes into consideration the available facts, the peculiar circumstances of the case, and the antecedents of the parties in the case, particularly the applicant and the stage, at which the application for stay was brought. This case has been filed since 2017. Applications like this had stalled proceedings in it. Had the case been heard on the merit on time since 2017, it would have gone on appeal by now, if any of the parties decided to appeal, yet this case is still pending here, clogging the dockets of this Court. The defendants have filed their Statement of Defence since 19th October 2017, more than one and half year ago. It was first adjourned for definite hearing on 24th May 2018. That is more than a year ago. On the 12th November 2018, I adjourned it for hearing on 16th January 2019. That is more than four months ago.
The defence had brought an NPO in which they raised issues of limitation and misjoinder, which issues have been dismissed by this Court. The issue of limitation law raised is one that could not be waived and could be raised afresh at the appellate courts. So, if this case goes on trial, the defendants would not lose anything, since it would still be at liberty, thereafter to raise the issue of statute bar at the Court of Appeal together with any other issue they wish to raise, whether or not they win at the trial Court. Even the purported proposed ground of appeal filed is frivolous, taking into consideration that, recent decision of the Supreme Court in National Revenue Mobilisation Allocation and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 Ors (2019) 2 NWLR (Pt. 1656) 247 at 270-271, emphatically held that, the Public Officers Protection Act is not applicable to contract of service/contract of employment. That ground is the only ground that could terminate the life of the case. The other ground on misjoinder could only lead to striking out of the names of the parties allegedly wrongfully joined, if it succeeds, and not the termination of the case. I cannot also find any res that would be destroyed, if this application is refused neither is there any legal promise to reimburse the claimant/respondent in the event that, this application ought not to have been granted. Hence, it is seen that, the proposed appeal together with the application for stay of proceedings, are actually very frivolous, vexatious, and abuse of the Court’s process; and in addition, a contemptuous ploy to stall proceedings at this Court.
Let me also state that, I found that, the application is not brought bona fide. In fact, the learned counsel to the defendants, who appeared in Court on 12th November 2018 practised deceit on this Court by agreeing to the case being fixed for trial on 16th January 2019, and on that date, wrote to Court for a stand down of the case because, he was at the Court of Appeal, only to turn up on the 10th March 2019 to stall the hearing, which was adjourned at his behest, by this very frivolous application for stay of proceedings. This is unethical practice. It is wrong for counsel or chambers to deliberately stall proceedings in court. This has been the antic even before my assumption of jurisdiction over the case. I will leave at that. I add too, that, this application is totally at variance with the rules of this Court, equity and good conscience.
Talking about expenses, it also better for all the parties that the trial is concluded and a single appeal could be made consolidating all the issues, including the issue of limitation and misjoinder, instead of pursuing stay of proceedings at this stage. This is because, there would be only one appeal then, whereas, if this application is granted, the possibility of two rounds of appeal is rife, and in this event, it needs no rocked science to know that, refusing this application, saves more money, time and resources than granting it. Looking at the catalogue of reasons I have offered against granting this application, it is logical to conclude that, the application lacks merit; and I so hold. Having not been brought bone fide, it is an abuse of the Court’s process. It is abuse of process to deliberately bring application for no other purpose than to stall proceedings in courts, which is what this application is all about. I therefore refuse the application for stay of proceedings. The application is accordingly dismissed. The matter shall proceed to trial on the merit. I award cost of N50thousand [Fifty Thousand Naira Only] against the defendants/applicants in favour of the claimant/respondent, for wasting the time of the claimant/respondent and stalling the proceedings of the Court, by this very vexatious and frivolous application, deliberately designed to frustrate the trial of this case. The case shall be adjourned for definite hearing.
Ruling is entered accordingly.
HON. JUSTICE O.O. AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA