Dr. Victor Ike Oye V. Comrade Mike Alioke & Ors (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Lead Ruling)

When this appeal came up for hearing before this Court today, counsel to the Appellant Chief Wole Olanipekun SAN informed the Court that the appeal is ripe for hearing as all the briefs filed by the parties are in.

However, counsel to the 1st Respondent K,C. Nwafor SAN and counsel to the 2nd Respondent Tochukwu Maduka asked that the appeal be stayed because they had each filed an appeal at the Supreme Court against certain issues decided in the matter being appealed against before us.

K.C. Nwafor SAN said though he agreed that the appeal before this Court is ripe for hearing, he has an information which he intends to disclose to this Court and that is, that an appeal has been entered at the Supreme Court and all processes in that appeal have been served on the Registrar of this Court. He urge this Court to stay proceedings in accordance with Order 8 Rule 11 of the Supreme Court Rules 1999 as amended.

Counsel to the 2nd Respondent Tochukwu Maduka on his part submitted that on the 8th July, 2017 they filed an appeal arising from the decision of this Court in this Appeal and

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that the record of Appeal has since been compiled and transmitted to Supreme Court and entered as Appeal No.SC/598/2017.

Counsel also contended that they had filed a motion for stay of proceedings of this appeal at the Supreme Court on 25/7/2017. He also stated that on 8/8/2017 they filed an affidavit verifying the status of the Appeal before the Supreme Court. Counsel maintained that in view of the pending appeal entered at the Supreme Court, the course open to this Court he argued is to adjourn this appeal to await the outcome of this decision of the Supreme Court on the appeal filed.

The Court was referred to Order 8 Rule 11 of the Supreme Court Rules 1985 as amended. He also cited the cases of Mohammed v. Olawunmi (1993) 4 NWLR pt.287 page 245 at 277. Olasimi v. Olasimi (2010) 4 NWLR pt.1187 page 225 at 245 – 246. Orizu v. Ofomata (2008) AFWLR Pt.398 at 339.

Both counsel to the 3rd respondent Nkiru Frank Mwegwa and O.J. Nnadi SAN counsel to the 4th and 8th Respondent said they had nothing to urge on the application for stay of proceedings.

In reply to the submissions of both counsel to the 1st and 2nd Respondent, Chief Wole Olanipekun SAN

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submitted that counsel to the 1st Respondent merely passed on information and that no application was made on behalf of the 1st Respondent for stay of proceedings of the appeal before this Court. Learned senior counsel referred the Court to Order 6 Rule 1 on how applications are made to the Court of Appeal. He argued that by virtue of the Provision of Section 128 of the Evidence Act, this Court can only rely on documents filed at the Supreme Court which are duly certified. In relation to the 2nd respondent, he argued that there is no application before this Court in that the documents filed before the Supreme Court and exhibited in this Court which are photocopies need to certified before this Court can look at them. He referred to Section 104 and 105 of the Evidence Act.

Learned senior counsel contended that the cases of Mohammed v. Olawunmi and Olasimi v. Olasimi referred the Court by counsel to the 2nd Respondent are not apposite to the issue at hand. Learned Senior Counsel referred the Court to the case of Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) page 250 at 273.