IN THE ABUJA INDUSTRIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
14Th DAY OF MAY 2019 SUIT NO: NICN/ABJ/337M/2019
COMRADE BENSON EKASA CLAIMANTS
COMRADE MENELE ZIADAM NZIDEE
1. COMRADE KIRI MOHAMMED
(The National President of
Nigeria Civil Service Union) DEFENDANTS
2. THE NIGERIA CIVIL SERVICE UNION
3. THE REGISTRAR OF TRADE UNIONS
1. The 2nd Defendant/Applicant brought a Motion on Notice dated and filed on the 8th day of November, 2019. The motion on notice was brought pursuant to Order 64 Rules 8(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the Inherent Jurisdiction of this Court, praying the Honourable Court for;
a. AN ORDER OF COURT granting stay of execution of the judgment delivered by the Honourable Court on 25th October, 2019 pending the determination of the Appeal against the said judgment.
b. AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances pending the hearing and final determination of the substantive suit.
2. The Motion on Notice was supported by a 10 paragraph affidavit and an 8 paragraphs further affidavit both deposed to by Chika Eze, a Legal Practitioner in the law firm of Dr. Arthur Nylander, SAN, the Solicitors to the 2nd Defendant/Applicant in the suit. In paragraphs 3 and 4 of the affidavit in support of the motion on notice, the deponent claimed to have attached exhibits A, B and C, to the affidavit. However, those exhibits were never attached as claimed. This may have been what necessitated filing of further affidavit wherein the said exhibits were attached.
3. Chika Eze, Esq; counsel for the 2nd Defendant/Applicant in oral adumbration relied on all the paragraphs of the affidavit in support and the further affidavit together with all the exhibits attached therein. Counsel also adopted the written address filed along with the application as his argument. In the written address a sole issue was formulated for determination, to wit:
‘’Whether this 2nd Defendant/Applicant is entitled to the prayers sought in this application?
4. In arguing the sole issue for determination, counsel to the 2nd Defendant/Applicant argued that the Court had both statutory as well as inherent jurisdiction to grant this application. Counsel relied on Order 64 rule 8(1) of the rules of this Honourable Court and the case of OGUNREMI V DADA (1962)ALL NLR 663, COKER V ADEYEMO (1965)1 ALL NLR 120, SODEINDE V THE REGISTERED TRUSTEES OF AHMADIYA MOVEMENT IN ISLAM (1980) 1-2 SC 163. in support of his contention.
5. Counsel argued that the in determining grant or refusal of stay is at the discretion of the court which must be exercised judicially and judiciously. It is not exercised at the whims of the court. In support of this argument counsel relied on several decisions in the cases of KIGO NIG. LTD V HOLMAN BROTHERS LTD (1980) 5-7 SC 60, VASWANI V SAVALAKH (1972) SC 1, BALOGUN V MUYODE ENT. LTD (2008) 3 FWLR (Pt.77) 383; BALOGUN V BALOGUN (1986)1 ALL NLR 346 and MOBIL OIL LIMITED V AGADAIGHO (1988)2 NWLR 383 where the Court held that it will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. Counsel submitted that the Honourable court is duty bound to avoid a situation where their judicial firmament is exposed to anarchy by reason of conflicting decisions emanating from the trial and appellate court.
6. Counsel contended that applying the principles of law enunciated in the cases cited above to the facts of this application, the grounds of appeal in exhibit B raises arguable and substantial ground of appeal. it is also submitted that grounds of appeal are not prevolous they raised serious and recondite points of laws in its appeal that ipso facto will succeed.
7. It is also argued that taking into consideration paragraph 5 (a-g) of the affidavit in support refusal of this application will foist upon the court, a situation of complete helplessness. There cannot be a return to status quo because grave injury would have been unleashed of the members of the 2nd defendant/applicant and the public in general other than the temporary restrain from imposing the the 2nd claimant/respondent as the National president of the 2nd Applicant. There is no gainsaying this fact, as the 1st to 3rd defendants have already express this that cannot be redress through award of damages. While the respondent will loose nothing. Counsel urged the court to grant stay as in the interest of justice.
8. The 1st Claimant/Respondent filed a 33 paragraphs counter affidavit and Written Address in opposition to the motion on notice dated and filed 8th November, 2019 by the 2nd Defendant/Applicant. The counter affidavit was deposed to by one Benson Ekasa, the 1st claimant/Respondent in the suit. Attached to the counter affidavit are CTC of ruling striking out application for stay of execution, exhibit CMB1, copy of ruling of 25/10/2019, exhibit CMB2, and notice of appeal in respect of Appeal No. CA/A/1131/2018, exhibit CMB3.
9. Chinyere Moneme, Esq; counsel for the 1st Claimant in oral adumbration informed the court that he is relying on the deposition contained in the counter affidavit. Counsel also adopted the written address filed along with the counter affidavit. In the written address, twin issues were distilled for determination. They are:-
1. Whether the 2nd Defendant/Applicant’s motion for stay of execution is competent before this Honourable Court?
2. Whether the 2nd Defendant/Applicant has fulfilled the conditions which necessitate the grant of an application for a stay of execution and Whether the interlocutory order appealed against lapsed on 25/10/19 when final judgment was entered in suit no NICN/ABJ/31/2016 and whether the said Appeal which is now academic can be the basis for an order for stay of execution.
10. Counsel in arguing issue 1; Whether the 2nd Defendant/Applicant’s motion for stay of execution is competent before this Honourable Court? Contended that the application of the 2nd defendant/applicant is in competent and an abuse of court process because the prayers and reliefs sought by the 2nd defendant/applicant show that the reliefs are the same sought in an earlier application dated the 5th day of November 2018, as per exhibit CMB1, which prayed the court for a stay of execution of the court’s ruling delivered on the 1st day of November 2018. Counsel submitted that the 2nd defendant/applicant on 16/11/2018 withdrew the application which sought to stay the execution of the ruling of this court pending the determination of the defendant’s appeal. The court struck out same on 16/11/2018. According to counsel the prayers sought by the 2nd defendant/applicant is a prayer for the court to stop the execution of judgment of this court delivered on 25/102019 because it has appealed the ruling of this court delivered on 1/11/2018 wherein the court voided the delegates conference of the 2nd defendant.
11. Counsel relied on Order 11 Rule 2 of the Rules of the National Industrial Court of Nigeria which states
“Where the court has struck out an application for stay, no further application for stay shall be made in the same matter”
12. Counsel argued that the application brought by the Applicant was incompetent and an abuse of court process as the reliefs sought by the applicant are the same as the one sought earlier by the same applicant on 5th November, 2018 and that the 2nd defendant/ applicant was also in contempt of court as he had failed to pay the cost of Two Hundred Thousand Naira (N200, 000) awarded against it by the court on the 25th day of November, 2018. See INEC V OGBUEBEGO (2018) 8 NWLR (PT1620) P101 PARAS C-E
13. Counsel submitted that failure on the part of the Applicant to do equity has disentitled him from being able to receive an equitable relief as prayed in this circumstance.
14. It is also urged the court cannot lend any weight to paragraph 5 (b) of the affidavit in support as neither the deponent nor Mr. L. A. O. Nylander, SAN are members or officers of the 2nd defendant/applicant and as such do not have personal knowledge of the financial and logistics capabilities of the 2nd defendant/applicant. Counsel contended that the deponent and informants were expressing their opinion on huge costs and logistics. They did not aver that 2nd defendant/applicant does not have the resources to organize a fresh national delegate conference and cannot aver same not being staff or members of the 2nd defendant/applicant. According to counsel opinion expressed in paragraph 5 a is not binding on this court.
15. ISSUE TWO: Whether the 2nd Defendant/ Applicants have fulfilled the conditions which necessitate the grant of an application for a stay of execution and Whether the interlocutory order appealed against lapsed on 25/10/19 when final judgment was entered in suit no NICN/ABJ/31/2016 and whether the said Appeal which is now academic can be the basis for an order for stay of execution.
16. In arguing issue two; counsel contended that the 2nd defendant/applicant has not fulfilled the conditions required for a stay of execution because the applicant cannot use an appeal for interlocutory ruling to be the basis for staying the execution of the final judgment of this Honourable court.
17. Counsel went on to contend that assuming without conceding that the court hold that there is a competent appeal before the court, then the court will have to be guided by established principles in granting or refusal to grant stay. Counsel relied on Martins V NICCANAR FOOD CO LTD (1988) 9 NWLR (Pt.74) 83.
18. Counsel also contended that the defendant/applicant has not shown that if the judgment of this court is executed, the 2nd defendant cannot be returned to the status quo ante which existed prior to execution. See UBN Ltd V Odusote Bookstores Ltd (1994) 3 NWLR (Pt.331) 129; Uzo V Nnolim (2000) 11 NWLR (Pt.678) 237.
19. Counsel further argued that it is trite law that an application for stay of execution is only granted in special circumstances subject to the discretion of the court. See AGIP NIG PLC V OSSAI & ORS (2016) LPELR-40976 (CA). Counsel further argued that from the authorities cited that the affidavit of the applicant ought to disclose a special and exceptional circumstance but in the present circumstance the applicant has failed to show such special circumstance in their affidavit to warrant the court to exercise its discretion in its favour.
20. Counsel submitted that in this case that the interlocutory appeal is now academic by reason of the delivery of the final judgment which extinguished the life of the interlocutory order appealed against. See JOSEIN HOLDINGS LTD V LORNAMEAD LTD (1995) 1 NWLR (PT371) 254.
21. Counsel submitted that the life of the interlocutory order has been extinguished by the final judgment of the Honourable Court and therefore what is before the court of Appeal is at best academic.
THE CLAIMANT/APPLICANT’S COUNTER AFFIDAVIT IN OPPOSITION TO THE APPLICANT’S APPLICATION DATED 8TH DAY OF NOVEMBER, 2019 AND FILED SAME DATE.
22. The 2nd Claimant/Respondent filed a 22 paragraph counter affidavit dated 20/11/2019 and filed 21/11/2019 in opposition to the 2nd defendant’s /applicant’s application dated 8/11/2019. The counter affidavit was deposed to by one Amah Confidence a concerned member of the 2nd defendant/applicant in the suit and a member of the Nigeria Civil Service Union of Abuja.
23. Stephen Apeh, Esq; counsel for the 2nd Claimant/Respondent relief on the depositions contained in the counter affidavit and adopts the written address filed along with the counter affidavit as his argument. In the written address counsel outlined a sole issue for determination by the court;
‘’Whether there is merit in the applicant’s application to justify the grant of same.’’
24. Counsel argued that the applicant’s application lacks merit and the court ought not to grant same as the applicant has failed to disclose any special circumstance to warrant the grant of the application. Counsel relied on OLOJEDE V OLALEYE (2012) 4 NWLR PT 183 P.13 RATIO 10
25. Counsel submitted that it is trite law that the power of the court to grant or refuse stay of execution of a judgment is discretionary which discretion must of course be exercised both judicially and judiciously but not arbitrarily. While relying on the above principle counsel urged the court to refuse stay of execution of the case as there was nothing to stay, as the applicant had failed to furnish the court with any special circumstance to merit the exercise of the discretion of the court to stay execution of judgment in this case.
26. Counsel submitted that there is no iota of law supporting the 2nd defendant’s application as it is premised on frivolity and therefore urged the court to dismiss same with heavy cost.
27. The 1st Defendant/Respondent filed a 12 paragraphs affidavit dated 10/01/2020 in opposition to the 1st claimant’s counter affidavit dated 20/11/2019, the affidavit was deposed to by one Rimamshung Aranpu Shamaki the principal state secretary of the 2nd Defendant and a member of the Nigeria Civil Service Union, Abuja.
28. I have considered the processes filed in this application as well as the written and oral submission of counsel for both sides.
29. In the affidavit in support and the further affidavit, as well as in the written submission of counsel, the 2nd defendant/applicant is contending that this court has the power to grant this application. Counsel also contended that the applicant has established special circumstances and recondite point of law has been raised by the notice of appeal as the major factors to warrant granting of this application. It was also contended that refusal of this application will foist on the court of appeal fait acompli and render decision of the court of Appeal nugatory.
30. The claimants/respondents in their respective opposition insisted that the 2nd defendant/applicant is not entitled to the grant of stay execution in that there is no valid and competent appeal and the affidavit evidence has not shown special circumstances to warrant granting of stay of execution.
31. It has been variously held by the courts that it is a fundamental principle in the administration of justice that a successful party or litigant must not be deprived or denied the reaping of the fruit of his judgment at the instance of an unsuccessful party. For a court to order a stay of execution which amount to denying a successful party, even temporary of the fruits of his judgment, the applicant seeking for the order of stay of execution, must show that there exists special or exceptional circumstances.
32. It is as well settled law that every judgment takes effect on pronouncement. See BANK OF WEST AFRICA V NIPC LTD 1962 LLR 31, OLAYINKA V OLUSANMI 1971 1 NMLR 277. And an applicant seeking to stay execution of judgment of court must show that he has challenged the judgement by way of appeal against which he is seeking for its stay of execution. This is done by filing a competent notice of appeal. OLADAPO V ACB (1951) WACA 110.
33. The granting of a stay of execution is a matter of exercise of discretionary power of the court. VASWANI TRADING CO LTD V SAVALAKH AND CO, the discretion must however, be exercised judicially and judiciously MOBIL OIL LTD V AGADAIGHO, The court must be guided by the well-established guiding principles for the exercise of the discretion. In order to obtain an order for stay of execution of a judgment against a successful party, an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court. BALOGUN V BALOGUN 1969 1 ALL NLR 349. The court is enjoined not to deprive successful party of fruit of his judgment unless under very special circumstances. VASWANI such circumstances involved a consideration of some collateral ones and in some cases inherent matters which may, unless the order i=s granted destroy the subject matter of the proceedings or foist the court, especially the court of appeal situation of complete helplessness or render nugatory any order or orders of the court of appeal paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happened to the case, and in particular even if the appellant succeeds as the court of appeal there will be no return to the status quo. Where the order or judgment is not manifestly illegal or wrong it is right for Court of Appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary is proved. Poverty is not a ground upon which an order of stay can be granted. See VINCENT V XTODEUS 1993 6 SCNJ PT2 300.
34. The 2nd Defendant/Applicant has in paragraph 6 of the further affidavit, the 2nd defendant/applicant it was averred that record of appeal had been compiled and transmitted to court of appeal. The record of appeal is part of in this suit was transmitted to court of appeal from the Registry of this court. The appeal has been entered at the Court of Appeal and appeal number issue it is; CA/A/1089/2019. Exhibits E and F, are evidence of forwarding of record of appeal to court of appeal and acknowledgment respectively.
35. The averment of the 2nd defendant/Applicant that regarding transmission of record of appeal to the Court of Appeal, assignment of appeal number and entry of appeal, have not been controverted or contradicted by the claimants/Respondents. This means that the claimants/Respondents have taken those facts as truth and that they have no contrary facts to adduce before the court. The effect of the failure to controvert means admission. Azeeze v State (1986) 2 NWLR (Pt.23) 541; Agbaje V Ibru S. F. Ltd (1972) 5 Sc 50; National Bank V Afe Brothers (1977) 6 SC 97; Sofumonu V Ocean Steam Ship Nig. Ltd (1987) 4 NWLR (Pt.66) 691. The claimants /Respondents ought to have filed affidavit to contradict or controvert those averment. However, having not done so I have no choice than accept the averments as the true and I will accordingly act on them.
36. Order 4 Rules 10 & 11 of the Court of Appeal Rules 2016, read as follows:
10. An appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court within the time prescribed by the Rules.
11. After an Appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto. Except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the Court below’’.
37. It is clear from the above provisions of Order 4 Rules 10 & 11 of the Court of Appeal Rules that once an appeal has been entered at the Court of Appeal by transmission of record of proceeding to the Court of Appeal, the Court has become dominus litus in respect of the subject matter of the proceedings in question.
38. For proper appreciation of the position of the law I shall refer to two decided cases that are of assistance to the determination of the issue at hand the cases are; NGIGE V ACHUKWU (2004) 8 NWLR (Pt.875) 383 and MOHAMMED HUSSEINI (1998) 14 NWLR (Pt.584) 108. It is apparent from the two decisions that between the time an appeal is filed at the trial court, but before the record of appeal is transmitted to the court of appeal, the trial court can entertain such interlocutory applications like application for committal for contempt, stay of execution and injunction pending appeal. When the record of appeal is transmitted to the Court of Appeal whereby it is seized of the matter, the trial Court lacks every jurisdiction to take any proceedings interlocutory or otherwise. This is because the Court of appeal is in charge. See Order 4 Rule 11 Court of Appeal Rules.
39. It is without any doubt that from the above quoted decisions of the Court of Appeal and the Supreme Court, once it has been shown that an appeal has been entered at the Court of Appeal, like in the case at hand, this Court ceased to have jurisdiction on issue that is the subject matter of the appeal. In the case at hand the record of appeal had been transmitted to the Court of Appeal. This has confirmed that the Court of Appeal is fully seized of the matter.
40. The rationale behind the provisions of Order 4 Rule 11 of the Court of Appeal Rules 2016, is to ensure the preservation of the subject matter of the appeal since there is no certainty of which way the decision of the Appeal Court will go. It is also in accord with the doctrine of hierarchy of courts, which shows the limit of each court. The authority of each court must be respected. Even if this court disagrees with the Appeal processes, this Court is duty bound to accord the appeal processes respect.
41. In view of my finding above consideration of the application for stay of execution filed by the 2nd Defendant/Applicant will amount to exercise in futility as this court lacks vires from the date of transmission of record to court of appeal to determine this kind of application.
42. In the circumstances the application for stay of proceeding is hereby struck out for lack of jurisdiction by this court to entertain same.
43. I make no order as to cost.
44. Ruling entered accordingly.
Chinyere Moneme, Esq; counsel for the 1st claimant
Stephen Apeh, Esq; counsel for the 2nd claimant
N. A. Idako, Esq; counsel for the 1st defendant
Chika Eze, Esq; counsel for the 2nd defendant.