IN THE NATIONAL INDUSTRIAL COURTOF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR .A. ALKALI
DATE: JUNE 25, 2019. Suit No: NICN/YEN/9m/2019
MR. MICHAEL OVRAWAH ………………. RESPONDENT
DELTA STATE UNIVERSITY ………………. APPLICANT
Mr. I.S.O. Agwu Esq for the Applicant.
Mr. O.T. Ipheghe Esq for the Respondent.
The applicant filed this application on the 23rd day of May, 2019. The applicant is praying for the following orders:
1. AN ORDER granting stay of execution of the Judgment of this Honourable court delivered on 17th May 2019, in this suit pending the hearing and determination of the Appeal filed against it at the Court of Appeal in the Port Harcourt Judicial Division.
AND FOR SUCH FURTHER ORDER(s) or other orders as this Honourable court may deem fit to make in the circumstances.
The grounds of this Application are as follows:
a. That the Defendant/Applicant being dissatisfied with the whole decision in the Judgment of this Honourable court delivered on 17/05/2019, have already appealed by filing its Notice of Appeal dated and filed on the 23/05/2019 against the judgment.
b. That the grounds as contained in the Notice of Appeal show substantial and arguable grounds of appeal and raised, serious and recondite points of law and facts which are special and exceptional circumstances for granting stay of execution on the Judgment appealed against.
The application is supported by a fourteen paragraphs affidavit and a written address. The applicant also attached two annexures Exhibit “A” which is the Judgment of this court and Exhibit “B” which is the Notice of Appeal. Counsel to the Applicant in the Written Address argued that the Applicant has complied with all the relevant provisions of the law for the grant of this application and urged the court to grant the application. The counsel referred to so many authorities to buttress his assertion.
Upon being served with the Counter Affidavit by the Respondent opposing this application, the Applicant filed a ten paragraphs Further and Better Affidavit on the 7th June, 2019 and a Reply on Points of Law.
The Respondent in opposition to this application filed a twenty paragraphs Counter Affidavit on the 31st May, 2019. The respondent also filed a Written Address. In the Written Address, the Respondent contends that the Applicant has not satisfied the requirements of the law and therefore urged this court to refuse the application.
I have read with understanding all the processes filed regarding this application which is before this court. I have also analysed all the averments contained in both the Supporting and Opposing Affidavit including the Exhibits and the Written Addresses.
In other to effectively and effectually determine this application, I adopt the sole issue for determination which was earlier formulated by counsel to the applicant to wit:
“Whether the Applicant is entitled to the grant of the stay of execution of the Judgment of this court delivered on 17/05/2019.”
It is of legal importance to note that by the provision of Order 64 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides that an applicant for stay of execution of a Judgment or for stay of proceedings under this Order shall compile the records of appeal within twenty one (21) 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 where already granted.
Flowing from this, the Applicant filed a proposed Notice of Appeal before this court on the 23rd day of May, 2019 but up to this moment there is nothing before this court to show that the Applicant did apply and pay for the compilation of the records of appeal or to ensure that the records of appeal are promptly compiled and transmitted to the Court of Appeal.
Furthermore, by the provisions of Order 64 Rule 13 (2) of the Rules of this court provides in;
1. Where a party is dissatisfied with the decision of the court and seeks to appeal to the Court of Appeal, such a party “shall” in the party’s application to the court for Stay of Execution of the Judgment or Order:
a. File a Notice of Appeal;
b. Pay for the compilation of the records of proceedings;
c. Exhibit Certified True Copies of the Judgment or Order the party is appealing against;
d. Exhibit evidence that the appeal has been entered in line with the appropriate rules or the practice direction of the Court of Appeal and that there is a valid appeal before the Court of Appeal; and
e. Exhibit evidence that leave has been granted by the Court of Appeal, where leave is required either by law or by the rules of the Court of Appeal.
2. Where all the requirements in Sub-Rule 2 above has been satisfied, the court may grant or refuse to grant the application for stay of execution of the Order or Judgment of the court after taking into consideration the provisions of Section 47 of the Act.
It is also pertinent to note that by virtue of the provisions of Section 243 (3) of the constitution of the Federal Republic of Nigeria 1999 (as amended) and the Supreme Court decision in SKYE BANK PLC VRS IWU (2017) 16 NWLR (PT. 1590) PG 24, an appeal shall lie from a decision of this court where the ground(s) of appeal does involve question(s) on infringement of fundamental rights or commission of a crime, shall lie with leave of the Court of Appeal.
I have taken the pains to reproduce the above provisions of the NICN Rules 2017 as they provide the conditions precedent to the grant or refusal of application of this nature. Rules of court are meant to be obeyed. See the cases of ALH. BALA USMAN VRS TAMADENA & COMPANY LTD & ORS (2015) LPELR – 40376 (CA) where the Court of Appeal held;
“It is now settled principle of practice and procedure that Rules of Court are meant to be obeyed and followed because they regulate matters in Court and make for the smooth administration of Justice. The Rules must be observed and it is the duty of the court to give effect to the rules and practice of a court and parties cannot by consent or acquiescence ignore the rules. See KACHIA VRS YAZID (2001) 17 NWLR (PT. 742) P. 88 AND F.C.E, OYO VRS AKINYEMI (2008) 15 NWLR (PT. 1109) P. 21 AT 48. PER ABBA AJI, J.C.A (PP. 14 -15, PARAS E – A).”
And also the case of DANJUMA GIDEON & ORS VRS THE STATE (2016) LPELR – 40322 (CA) where Sankey, JCA held;
“Rules of court are meant to be obeyed and so they must be strictly followed. They bind all parties before the court. See GMO NWORAH & SONS CO. LTD VRS AKPUTA (2010) 9 NWLR (PT. 1200) 443; AJAYI VRS OMOREGBE (1993) 6 NWLR (PT. 301); EZEANAH VRS MAHMOUD (2004) 7 NWLR (PT. 873) 468.” PER SANKEY J.C.A (P. 10, PARAS C – D)”
That said, I have carefully examined the processes filed by the Applicant here and I find from the record, there is no compliance with the provisions of Order 64 Rule 13 (2) (b) (d) and (e). I am not unaware of the requirement for leave of the Court of Appeal to be obtained first before an appeal would be entered as required by Order 64 Rule 1 (d) but these same rules take cognizance of that requirement by asking an Applicant to obtain leave and show this Court evidence of such grant before bringing an application like this. The Applicant here obviously did not avert his mind to Order 64 Rule 13 of the rules of this court.
The use of the word “SHALL” in the Order connotes that the conditions laid out are mandatory. See the cases of MR. DELE ODUSOTE VRS DR. (MRS) TEMITAYO ODUSOTE (2011) LPELR – 9056 (CA).
“The use of the word” SHALL” ordinarily means that the provisions are mandatory because the word is used to express a command or directive which does not admit of a discretion. PER GARBA, J.C.A (P. 13, PARAS F – G)”.
And also the case of AJAO AJADI ADAMS VRS BABATUNDE UMAR & ORS. (2008) LPELR-3591 (CA) PER SANKEY, JCA also held.
“Shall” ... may be used as implying futurity or implying a mandate … or discretion or giving permission. The word “shall” when used in a statutory provision imports that a thing must be done and when the negative phrase ‘shall not’ is used, it implies that something must not be done. It is a form of command or a mandate. See NIGERIA LNG LTD. VRS AFRICAN DEVELOPMENT INSURANCE CO. LTD (1995) 8 NWLR (PT. 416) 677. Generally when the word “shall” is used in a statute, it is not permissive. It is mandatory. See COL. KALIEL (RTD) V ALHAJI ALIERO (1994) 4 NWLR (PT. 597) 139. The word “shall” in its ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation…It is sometimes intended to be directory only and in that case it is equivalent to “may” and will be construed as being merely permissive. See AMOKEODO VRS INSPECTOR-GENERAL OF POLICE (1999) 6 NWLR (PT. 607) 467.
“In its ordinary meaning, “shall” is a word of command which must be given an obligatory meaning as denoting compulsion. It has the invaluable consequence of excluding the thought of discretion to impose a duty which may be enforced. Therefore, if a statute provides that a thing “shall” be done, the expected and proper meaning is that a peremptory and absolute mandate is enjoined.” PER SANKEY, J.C.A (PP. 54 – 55, PARAS F – E).”
Looking at Order 64 Rule 13 (3) of the rules of this court which provide thus; “where all the requirements in Sub-Rule 2 of this rule have been satisfied, the court may grant or refuse the application for stay of execution after taking into consideration the provisions of Section 47 of the Act.”
It follows therefore that compliance with the provisions of Rule 13(2) Of Order 64 is a mandatory requirement and a condition precedent to bring an Application for Stay of Execution pending Appeal. This Court can only consider the merits of this Application where it has been shown that the requirements of Order 64 Rule 13 (2) have been complied with. I have carefully examined all the processes filed further to this Application and I find that this present Application has failed to comply with the mandatory provisions of Order 64 Rule 13 (2) (b) (d) and (e) and therefore it is incompetent. The Court would not go into the merits of whether or not to grant an incompetent Application. The only option left to this Court would be to strike out this application. This application is hereby struck out.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR .A. ALKALI