Mobil Oil Nigeria Plc. V. Kena Energy International Limited (2003)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

The applicant is praying for a stay of proceedings of the lower court. The application is on notice brought under Order 3 rule 3 (1) (3) of the Court of Appeal Rules and sections 16 and 18 of the Court of Appeal Act, Cap. 75 respectively. It is supported by a 24 paragraph affidavit and a further and better-affidavit of 5 paragraphs, both sworn to by one Mike Inyang, Esq; a counsel in the Chambers of learned Senior Advocate for the applicant.

The applicant is relying on their affidavits.

In arguing the motion, learned Senior Advocate submitted that to succeed in an application for stay of proceedings, applicant must not only show but exhibit the notice of appeal to show that there is infact, a valid appeal as the applicant has done. In support of this proposition. case of Caribbean Trading and Fidelity Corp. v. N.N.P.C. & Anor. (1991) 6 NWLR (Pt. 197) 352, 361-2) was referred to.
Learned Counsel further submitted that in addition to the existence of a valid appeal, they have also prayed for departure from the rules to indicate their desire to have the main appeal be heard since, according to counsel, if the appeal is not considered, the applicant/appellant will be prejudiced in the proceedings at the lower court.

That the applicant has also shown a special circumstance, that is, where by, a document not pleaded was admitted to warrant a stay of proceedings. The case of Okeke v. Yaroson & Anor. (1999) 11 NWLR (Pt.625) 106, was alluded to where it was held that a ground of appeal should show substantial arguable grounds. That in the case at hand, the applicant has shown in their grounds of appeal that a document not pleaded was wrongfully admitted into evidence; and this is a clear example of substantial arguable ground to warrant a stay.

Learned Counsel referred to case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156, 190 and further contended that Saraki v. Kotoye (supra) is still a good valid law and has not been overruled by the Supreme Court. Appellant/applicants counsel contended that the respondent’s counter-affidavit has not controverted or denied their assertions in their affidavits. That the counter-affidavit of 36 paragraphs dwelt on extraneous matters that are irrelevant to the prayers of the applicant. Learned Senior Advocate urged upon us to grant the prayer for stay of proceedings.

In reply, learned Counsel for the respondent relied on their 36 paragraphs counter-affidavit deposed to by one Patrick Oparah, Esq., a counsel in Chambers of respondents counsel and submitted that the grounds of appeal exhibited by the applicant are not substantial or argueable grounds, and that for the applicant to succeed, they must show that the applicant is likely to suffer more than the respondent if it is refused, and referred to case of Intro-Shipping Ltd. v. Logos Trading (2002) 14 NWLR (Pt.788) 570, 586.

Learned Counsel also urged, the court to look at the antecedent or history of the case and referred to paragraphs 4-14 of the counter-affidavit, which shows that the case at the lower court had to re-start de novo three times, and that the matter was also on appeal before this court in case of Mobil Oil (Nig.) v. Kena Energy (2001) 1 NWLR (Pt.695) 555 and contended that the court should look into the appropriateness of appealing in a matter that can convincingly be brought in a substantial appeal, rather than in an interlocutory matter and urged the court to hold that where such exist as done by the applicant, the grant for stay, should be refused, and referred to case of Lawal Osula v. U.B.A. Plc. (2003) 5 NWLR (Pt.813) 376 and Umenzekwe v. Azike (2003) 4 NWLR (Pt. 809) 66, 80 – 1, and Eze v. Okolonji (1997) 7 NWLR (Pt.513) 515, 529.

Learned Counsel urged the court to consider the order made by this court for accelerated hearing in the case of Mobil Oil (Nig.) v. Kena (2001) supra, and that the lower court had made an order on the applicant for bond of security, which has not been complied with and that the applicant is not consistent in that after the appeal was filed, the same appellant/applicant went down to the lower court and filed an application before the lower court seeking leave to cross-examine the plaintiff/respondent. That this shows that the applicant is prepared to continue with the case at the lower court, and contended that the application for stay of proceedings is made mala-fide and is intended to delay the hearing of the substantive matter in the court below. Case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76, 100, was referred to and, learned Counsel for respondent urged us to refuse the grant for stay of proceedings and dismiss the motion.

In reply on point of law, learned Senior Advocate contended that the respondent’s counsel had gone into the appeal proper, whereas it is an interlocutory application and he urged the court to disregard the appeal issues raised.

Learned Senior Advocate contended that the case Intra-Shipping (supra) is in-applicable to this case because 1, the case as presented was not initiated by the appellant/applicant, 2, that though the matter has come up 3 times, it was not caused by the applicant, and that therefore, the cases relied upon by the resp,ondents are not applicable to this case at hand because the cases cited by the respondent have nothing to do with interlocutory appeal on rejection or admission of evidence, and that moreover, the cases cited have not overruled Saraki v. Kotoye (supra). That as to security for costs, it is not a requirement for stay of proceedings. As to Amadi v. N.N.P.C. (supra) the Senior Advocate, submitted that a party cannot waive a constitutional right, and Amadi s case had not overruled Saraki v. Kotoye (supra) and he urged the court to grant the application.

As earlier stated, the application is for stay of proceedings in the lower court. The nature of stay of proceedings is not a light matter. It is such a serious, grave and fundamental disruption of the fight of the other party to have his case heard and disposed of within a reasonable time. In other words, a stay of proceeding is the antithesis to a speedy hearing of the case; and connotes a punitive element on the respondent, the hearing of whose claim will be delayed by the order of stay. It is therefore not to be granted until the cons and pros are properly weighed. See Okeke v. Yaroson (1999) 11 NWLR (Pt.625) 106, 120 -125;Akilu v. Fawehinmi (No 2) (1989) 2 NWLR (Pt.102) 122.

In the case of Eze v. Okoloji (1997) 7 NWLR (Pt.513) 515, 527-531, Tobi, (JCA) as he then was, listed a number of factors or principles, to be taken into consideration in applications for stay of proceedings. Of course, the factors so enumerated are inexhaustive, and not all of them are applicable to every case. Each case has its own peculiar principle.

Some of the principles to be considered in this application are as follows:
1. All courts of record have inherent power to grant or refuse application for stay of proceedings. The only court that cannot stay its own proceedings is the Supreme Court. But where there is pending before an appellate court, an application for leave to appeal, then the lower court cannot grant an application for stay of proceedings. In such a situation, such power enures when the appellate court so orders.