Moses Amaechi Mba V. Victoria Nwosu & Anor (2007)

LawGlobal-Hub Lead Judgment Report

BADA, J.C.A.

This is an application dated the 17th day of May 2006 and filed on the same date in which the applicant prayed for the following reliefs:-

“(1) An order staying proceedings in suit A/238/2003 – Moses Mba v. Victoria Nwosu and another at High Court No. 1, Awka, Anambra State presided over by Hon. Justice Omegbolu Nri-Ezedi pending the determination of the appeal on the ruling of the said court dated 11/4/2006.

(2) An order staying execution of the award of ten thousand Naira (N I0.000.00) cost awarded against the plaintiff/applicant in favour of the defendants as a result of the plaintiffs request for an adjournment pending the determination of the appeal he filed on the ruling of the said Awka High Court.

(3) For such order or other orders as the court may deem fit to make in the circumstances.”

In support of the application is an affidavit of 23 paragraphs.

The 1st and 2nd respondents opposed the application and they relied on a paragraph Counter-affidavit. Written addresses were ordered in this application. At the hearing, learned counsel for the pat1ies adopted and relied on their written addresses. The learned counsel for the applicant abandoned relief No.2 and it is hereby struck out.

The learned counsel for the respondents raised preliminary objection in the respondent’s written address.

He stated that at the lower court on 11/4/06 the plaintiff/applicant sought to tender a document in suit No. A/238/03 pending before High Court No.1, Awka. There was objection as to the admissibility of the document which was sustained and the lower court rejected the said document.

As a result the plaintiff/applicant filed an appeal against the ruling of the lower court and filed motion for stay of proceedings straight in this court.

The respondent’s counsel contended that the motion for stay of proceedings ought to have been filed first in the court below as required by the Court of Appeal Rules. And it is upon its refusal at the lower court that the application will then be filed at the Court of Appeal.

He submitted that the requirements of Order 3 rule 3(3) and (4) were not complied with.

In his reply learned counsel for the applicant submitted that the preliminary objection was based on technicalities and that the Supreme Court frowns on issues bordering on technicalities rather than substance. He relied on the case of – H.M.S. Ltd. v. First Bank (Nigeria) Ltd. (1991) 1 NWLR (Pt.167) 290.

He also contented that the issues raised in paragraphs 14, 16, 17 and 19 of the affidavit in support made it impossible or impracticable for the applicant to file the application at the court below.