IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 4th February, 2020
SUIT NO: NICN/LA/615/2015
FIRST BANK OF NIGERIA PLC --------------------------------- Claimant
LILIAN NNENNA AKUMAH ---------------------------------- Defendant
Stella John Esq for the claimant/respondent
O. Okelola Esq for the defendant/applicant.
The defendant/ applicant in this action filed a motion on notice on the 14/1/2020. Pursuant to Order 17 Rule 1 and Order 64 of the NICN Civil Procedure Rules 2017 seeking an order of this court;
Staying proceedings in this suit pending the hearing and determination of the Motion for 1eave to appeal to the Court of Appeal dated and filed on 24th October, 2019 already filed by the applicant and numbered as Appeal Number CA/LAG/PRE/ROA/CV/l226M/19 at the Court of Appeal, Lagos Division.
And for such further and other orders as the court may deem fit to make in the circumstances.
The application is supported by an 8 paragraph Affidavit and 3 exhibits numbers as Exhibit FBN1, FBN 2a, & b and FBN 3. Also in support of the application is the written address of the applicant counsel.
In response to the process filed by the defendant/applicant, the claimant/respondent filed a 28 paragraph affidavit and a written address on the 21/1/2020. The defendant also filed a reply on point of law on the 29/1/2020. The parties adopted their respective processes on the 27/1/2020.
In his written submission, the applicant submitted one issue for determination to wit; ‘whether in the circumstance of this suit, the applicant is entitled to an order of the honourable court staying any further proceedings in respect of this suit, pending the hearing and determination of the applicant’s appeal proceedings to the Court of Appeal.’
Counsel argued that by Order 64 Rule 8 (1) of the rules of this court, the court has statutory and inherent powers to stay the proceedings in this suit. He argued that the discretionary power to stay proceedings must be exercised judicially and judiciously taking into account the competing interest of the parties. He stated that by S. 241 and 243 of the 1999 Constitution, the Court of Appeal is vested with the jurisdiction to hear appeals from the decision of this court. Counsel cited the case of Wema Bank PLC V. Tonade LPELR 5096 where the court of Appeal laid down the conditions the court must consider in deciding to stay proceedings in a matter before it. I have read those conditions very carefully which I shall not reproduce here again. Counsel argued that there is a valid appeal and cited Order Order 1 Rule 5 of the Court of Appeal Rules 2016. Which provides that an appeal ‘means the filling of notice of appeal, and includes an application for leave to appeal’ and argues that there is a valid appeal. Counsel cited the case Ecobank V. Covalent Oil & Gas Services Ltd. & Anor.  LPELR- 46021, and the case of Alhaji Muhammadu Maigari Dingyyadi & Anor Vs. Independent National Electoral Commission & 2 Ors  4.7 SC (Pt.1) 1. This is the only argument put forward by the applicant which is worth considering in this application.
In his written address the respondent counsel argued that an applicant for an order staying proceedings must not only comply with the rules of court in the bringing of the application, but must establish a compelling and inevitable circumstances before the order can be made. Counsel argued that Order 64(8)(1) relied upon by the applicant only provides the mode of bringing an application of this nature. That the requirement in Order 64 Rule 14 (1) a-e has not been complied with. Counsel argued that by virtue of the provisions of S. 243(3) of the 1999 Constitution, the applicant’s appeal shall be with the leave of the Court of Appeal and there is no evidence of such leave having been obtained for this application to be considered. Counsel relied on the case of Ogboru V. PCA (No 2)  NWLR (Pt 956) at 80, and argued that an appeal where there is no right of appeal is not only frivolous, it amount to an abuse of court process.. Counsel urged the court to dismiss the application with substantial cost as it amounts to wasting the time of this court and also frustrating the hearing of this action.
I have carefully considered the argument put forward by the counsel for the parties. This application bothers on an attempt to appeal against the interlocutory decision of this court made on the 10/10/2019. First I must state very clearly that the 1st prayer sought for in this application is rather strange, unusual and is not known to the rules of this court. The applicant here seeks ‘an order staying the proceedings of this court pending the hearing and determination of the motion for leave to appeal to the court of appeal’. The applicant is not seeking an order staying proceedings pending the determination of the applicant’s appeal to the Court of Appeal if any. Order 64 Rule 14(1) of the rules only recognises an application for stay of proceedings pending appeal. The prayer sought for in this application is incompetent.
Assuming the prayers sought in this application is anything worth looking at, I shall proceed to examine the competency of this application.The provisions of S. 243 (3) of the 1999 Constitution as amended regulates appeal from the decision of this court. The section provides;
An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly; Provided that where an Act or Law prescribes that an Appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, such Appeal shall be with the leave of the Court of Appeal
The National Industrial Court Civil procedure Rules 2017 made pursuant to S. 254F(1) of the 1999 Constitution as amended clearly provides for the mode, procedure and requirement for making an application for stay of proceedings. Order 64 Rule 14(1) provides;
(1) Where a matter is on-going and a party is applying for stay of proceedings pending appeal the party shall in the application for stay of proceedings :
(a) File an application for stay of proceeding pending appeal
(b) Pay for the compilation of the records of proceedings for which the party is seeking stay of proceedings.
(c) Exhibit certified true copies of the record of proceedings for which the party is seeking stay of proceedings pending appeal and exhibit evidence that there is a valid appeal before the Court of Appeal
(d) Exhibit evidence that the appeal has been entered in line with the appropriate rules of the Court of Appeal; and
(e) Exhibit evidence that the party has been granted leave by the Court of Appeal, where leave is required either by law or by the rules or the Practice Directions of the Court of Appeal.
The above conditions must be complied with before an application for stay of proceedings can be competent for the court to consider.
I have examined the application brought by the defendant/applicant counsel, it is only the certified true copy of the ruling sought to be appealed against that is exhibited in the affidavit. There is no evidence that payment for the compilation of the record has been made. There is no evidence that an appeal has been entered by the court of Appeal. There is also no evidence that the defendant/ applicant has obtained leave of the court of appeal pursuant to S. 243(3) of the 1999 Constitution from the Court of Appeal to be able to prosecute any appeal against the decision sought to be appealed against, yet the applicant wants this court to stay proceedings while he makes effort to appeal.
The Supreme Court in the case of Sky Bank PLC V. IWU LPELR-42595(SC) per Akaahs JSC held:-
The Court of Appeal has the jurisdiction to hear Appeals from the decision of the National Industrial Court in respect of other matters apart from questions of fundamental rights, but such exercise of such jurisdiction must be with the leave of the court of Appeal.
The applicant counsel has relied on Order 1 Rule 5 of the Court of Appeal Rules 2016. Which provides that an appeal ‘means the filling of notice of appeal, and includes an application for leave to appeal’ and argues that there is a valid appeal, This argument is misleading and is without any legal justification It is borne out of lack of counsel understanding of the special procedure required in appealing against the decision of this court. The authorities cited by the applicant counsel in support of this position were decisions of the high court which were appealed against. There is no provisions in the 1999 Constitution or any extant laws requiring the decisions of the high court to be subject to leave of the Court of Appeal before an appeal or a ‘Notice of Appeal’ can be logged in the Court of Appeal. An appeal from this court has been insulated from the normal procedure in commencing an appeal against the decision of the Federal High Court, High Court of the States and the High Court of the Federal Capital Territory. While Appeal in those court on any matter is as of right, appeals from the decisions of this court are not as of right safe in matter involving questions of Fundamental Human Rights in chapter iv of the 1999 Constitution which arise in matter which the court is vested with jurisdiction. Also in criminal matters which the court is vested with jurisdiction. See Onitiju V. Lekki Concession Company Limited  LPELR-40564
The proposed notice of appeal annexed to the application as Exhibit FBN 2b is not an appeal process which can be recognised by this court. The only process that can initiate an appeal from the decision of this court is the leave to appeal granted by the Court of Appeal. For this reason this court hereby holds that there is no competent Appeal filed against the decision of this court made on the 10/10/2019 for which this court can exercise his discretion to grant this application. The defendant/applicant has failed to comply with the provisions of Order 64 Rule 14(1)a-e. I recall that during the hearing of this application, the court directed the attention of the applicant counsel to the non-compliance with the rules of this court in bringing this application. Counsel ignored the hint of the court and was very persistent on his insistence on moving this application. This application is nothing more than a waste of this court’s precious judicial time and also an attempt to frustrate the hearing of this suit on the merit. The conduct of counsel in this matter is very reprehensible.
This kind of application runs contrary to the objective of the Court of Appeal Practice Direction 2013, which has as one of its objective and guiding principle in paragraph 2(iv) to wit:-
Reduce the time spent on hearing and determination of interlocutory applications both at the trial court and on appeal and minimise the avenues for parties to make use of interlocutory applications as a means to frustrate the expeditious conduct of cases both at trial and on appeal
On the whole this application is incompetent and therefore is bound to fail. The application is hereby dismissed.
The defendant applicant shall pay a cost of N100, 000 to the claimant/respondent to this application. This cost must be paid before the next adjourned date. Failure of which this court would not hesitate to apply the sanction for disobedience of the order of this court.
Ruling is entered accordingly
Hon. Justice (Dr.) I. J. Essien