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.
2. The first consideration in an application for stay of proceedings, is whether the applicant has a valid cause or right of action.
This is related to the jurisdiction of the court to entertain the cause or action brought to court. If the applicant has no right in the first place to bring the application for stay, the court itself has no jurisdiction to hear the application.
3. In order to consider an application for stay of proceeding, there should be a pending appeal and a valid one for that matter. If the applicant’s pending appeal is either incompetent or invalid, a court of record will not entertain the application. See cases of Olawunmi and Others v. Alhaji Mohammed and Others (1991) 4 NWLR (Pt.186) 516; The Provost, Alvan Ikoku College of Education Owerri and Others v. Amuneke (1999) 9 NWLR (Pt.213) 49; National Bank of Nigeria Ltd. v. NET (1986) 3 NWLR (Pt.31) 667.
4. To grant an application for stay of proceedings, the pending valid appeal must have and exhibit argueable ground or grounds of appeal. It does not mean however, that the argueable grounds must or will succeed. It is enough if the grounds are argueable in law, and there is a good chance of success. See Carribean Trading and Fidelity Corp. v. N.N.P.C. (1991) 6 NWLR (Pt.197) 352; The State v. Ajayi and Anor. (1996) 1 NWLR (Pt.423) 169.
But where the pending appeal is found to be frivolous, or unmeritorious, or oppressive and not arguable in law, the application for stay of proceedings will be refused. To come to such decision that an appeal is frivolous, it means the Judge has to look into the record of appeal which is normally annexed along with the application.
The Judge should as well look into the ruling of the lower court. But this however, should not extend to deciding the pending appeal, as it will be premature at this stage to do so. It is not for the Judge considering the application for stay to declare that the grounds of appeal are frivolous or not arguable. The court should keep that reason to itself and just refuse the application for stay. It is said that “here the court pretends, as it should pretend, for once and for good”. This is to avoid a situation where the court could be accused of descending into the arena even before the appeal is argued.
5. Another important factor to consider is the special and exceptional circumstance to be shown by the applicant to warrant the court to grant him a stay of proceedings. This is so as the application is not granted, as a matter of routine as it is not an automatic or mechanical relief slavishly followed after filing an appeal. In every matter or suit before a court of law, whether in its original or appellate stage of proceedings, the court will consider the competing rights of both parties including the applicant and the respondent to justice. Therefore, the court will take into consideration the equity and justice of the application.
6. Related to the factor No.5 above, is consideration of hardship. Stay of proceedings will not be granted if it will cause greater hardship, than if the application is refused. See Kigo v. Holman (1980) 5 – 7 SC 60; Arojoye v. U.B.A. and Ors. (1986) 2 NWLR (Pt.20) 101. Issue of hardship is a matter of fact that can be ascertained from the affidavit evidence of the parties.
7. Another important consideration in an application for stay of proceedings is the need to preserve the res or preservation of the subject-matter of litigation. The courts have an obligation to protect the res for the purpose of ensuring that the appeal, if successful will not be rendered nugatory. See Kigo v. Holman (supra); Shodeinde v. Ahmadiyya (1980) 1 – 2 SC 163. But where it is shown by affidavit evidence by say the respondent, that the res will not be destroyed, or there is infact no res, an application may not be granted. See Yinka Folawiyo and Sons Ltd. v. T.A. Hammand Project Ltd. 3 FRCR (1977) 373.
8. Also, where an action in the court below is an abuse of court process, an application for stay of proceedings will be granted.
9. Another principle that falls for consideration in an appeal against interlocutory order of a lower court is if that interlocutory order has finally disposed of the case. If the interlocutory order of the lower court on which an appeal is made does not dispose of the case between the parties, it will be wrong to stay proceedings because of the appeal lodged by an aggrieved party. See Arojoye v. U.B.A. and Another (supra) but where the interlocutory order appealed against will, if successful, dispose of the case, then stay of proceedings will be granted. See Obinyiriuka v. Aliche and Another (1991) 4 NWLR (Pt.183) 87.
10. Another issue in considering an application for stay of proceeding is when an action is an abuse of court process, then stay of proceedings will be granted. A typical example of abuse of court process is where a suit is duplicated or where a party employs improper and perverse procedure to obtain an advantage undeservedly.
11. In an interlocutory appeals, where the complaint of the applicant can be conveniently dealt with together in an appeal against the final decision of the court, thus, in the event that the case is determined in favour of the respondent, an application for stay of proceedings should be refused.
12. An applicant for stay of proceedings must come with clean hands because what he is asking is an equitable relief. Equity will not assist the unclean. That is why the court has to look into the antecedents of the parties.
13. It is important to stress that initiation of a suit in a court of law demands that the suit will be heard expeditiously and completed without any inhibition midway. That is part of the essence of the rule of fair hearing as enshrined in S. 36 of the 1999 Constitution of Nigeria. Therefore, where an application for stay of proceedings is intended to merely stop or suspend the proceedings, it will be refused. Because of the harm it will cause to the quick dispensation of justice in the judicial process, Judges have been advised to exercise their discretion in favour of an applicant most sparingly. The application is being turned of recent, to almost an abuse by parties who, on having the slightest disagreement with any ruling of a trial Judge will resort to the interlocutory remedy of stay of proceedings. Some applicants on seeing the weakness of their clients case would resort to application for stay and waste the time of the other party and the court. Courts are enjoined not to encourage such unwholesome practice.
It is instructive to be reminded of the Supreme Court decisions in Akilu v. Fawehinmi (No.2) (supra), where it was cautioned that “an action should not be stayed unless the applicant has established beyond doubt that the action ought not to go on”, See also the case of Okorodudu v. Okoromadu (1977) 3 SC 21, and the recent case of Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76, 100, where Uwais, (CJN) graphically bemoaned the abuse to which some counsel misuse the right to appeal on interlocutory matters as follows:-
“The chequered history of this case once more, bring to light, the dilatory effect of interlocutory appeal on the substantive suit between parties.
The final judgment on the interlocutory appeal is delivered today by this court. It has thus, taken (13) thirteen years for the case to reach this stage. With the success of the plaintiff’s appeal before us, the case is to be sent back to the High Court to be determined, hopefully, on its merit after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case may be.
I believe that counsel owe it as a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here; so that the adage justice delayed is justice denied may cease to apply to the proceedings in our courts” (Italics are mine for emphasis).
And that now takes me to the main reasons as to why the applicant brought this application for stay of proceedings. The reason, is that in the course of proceedings in the court below, the respondent who was the plaintiff, was giving evidence through P.W.1, and a document was sought to be tendered into evidence. The applicant’s counsel opposed and was overruled. The document was then admitted into evidence by the lower court, and hence, the interlocutory appeal. See paragraphs 8 of applicant’s affidavit in support of the application.
I have carefully considered the affidavit of the applicant as well as the further and better affidavit both deposed to by Mike Inyang, Esq. especially, paragraphs 8, 9, 10 and 16 (i)-(vii) of the affidavit that provide as follows;-
“8. That in the course of trial at the trial court on the 6/2/2003, the learned trial Court admitted an unpleaded document inspite of objection by the applicant’s counsel. A certified true copy of the proceedings of the 6/2/2003, containing the decision of the trial court is hereby, exhibited and referred to as exhibit A.
9. That the applicants were dissatisfied with the decision/ruling of the trial court, delivered on the 6/2/2003, hence, instructed my senior colleague in chambers to lodge a notice of appeal in the matter, A copy of the said notice of appeal is hereby exhibited and referred to as exhibit B.
10. That I am informed by my senior colleague in chambers, Dr. T.C. Osanakpo (SAN) and I verily believe him that the grounds of appeal in the notice of appeal deposed to in paragraph 9 here, are of only grounds of law.
16. That Dr. T.C. Osanakpo (SAN) informed me and I verily believe him in respect of the following facts namely:
(i) the applicants are seeking their constitutional rights to appeal in this matter;
(ii) the appeal is predicated on the admission or rejection of evidence that arose during the course of trial at the trial court;
(iii) the trial court allowed documentary evidence not pleaded by the plaintiff/respondent as exhibit R on the 6/2/2002;
(iv) that the learned trial Judge wrongly admitted an unpleaded document during the course of trial at the trial court on the 6/2/2003;
(v) the piece of unpleaded document admitted as evidence by the trial court on 6/2/2003, is crucially relevant to the case of the applicants that are seeking its rejections;
(vi) the notice of appeal deposed to in paragraph 9 hereof contain arguable points of law with reasonable prospects of success in favour of the applicants;
(vii) the application is to enable this Hon. court determine whether the documentary evidence sought to be tendered by the plaintiff/respondent on the 6/2/2003 is admissible”.
The further and better affidavit of the applicants is only intended to show the ruling of the lower court in which an application for stay of proceedings pending the appeal was refused by the trial court on 11/3/2003. The ruling is exhibit D.
Now, putting the affidavits of the applicants against the principles or factors to be considered in an application for stay of proceedings as enunciated in Eze v. Okolonji (supra) by Niki Tobi, (JCA) as he then was, it can be seen that in the first place, the applicants have a valid cause or right of action before the court. Applicants are valid defendants in suit No. FHC/CA/CS/C/98. Also, this court has taken judicial notice of the fact that the applicants have filed a valid pending appeal before this court. It is appeal No. CA/C/18M/2003, and the notice of appeal and grounds of appeal have all been exhibited as exhibit B in paragraph 9 of the affidavit of Mike Inyang, dated 18/2/2003 and filed same day. See Olawunmi and Others v. Alhaji Mohammed and Another (1991) 4 NWLR (Pt.186) 516.
Also, the grounds of appeal as shown in exhibit 7B of the affidavit of Mike Inyang in support of the application are based on grounds of law and are arguable grounds of appeal with a probable chance of success. The two grounds shorn of their particulars read thus:
“A. The learned trial Judge erred in law by wrongly admitting in evidence an unpleaded document.
B. The learned trial Judge erred in law by interfering that an un pleaded document is admissible in law”.
Therefore, the grounds being arguable with a good chance of success has satisfied one of the basis for grant of stay of proceedings. See General Oil Ltd. v. Oduntan and Anor. (1990) 7 NWLR (Pt.163) 423; Caribbean Trading and Fedility Corporation v. NNPC (supra) and The State v.Ajayi and Anor. (supra). The learned Senior Advocate for the applicants has argued that the special and exceptional circumstances in their application is that the document admitted into evidence by the trial court for which they sought its rejection is so vital to the case of the applicants. I have carefully considered the claim of the plaintiff/respondents before the lower court. See paragraphs a-f of the writ of summons of the plaintiff/respondent at pages 1-2 of the ruling of the trial court, dated 11/3/2003.
Paragraph (e) thereof is claiming N11,140,740.00 as accumulated interest and charges on bank facilities utilised in the contract. I am not satisfied that the document in question is crucial to the case of the applicant, though it is relevant.
In considering an application for stay of proceedings, the competing interest of the parties must be taken into consideration.
In the counter-affidavit of the respondent sworn to by Patrick Oparah, Esq. paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 are relevant.
Paragraphs 6-9 provide as follows:
6. That in the course of the hearing, the respondents sought for and obtained an order of the lower court that its barge, which was wrongly detained by the appellant be released and the lower court granted the same application.
7. That the appellants/applicants were stringely of the opinion that the said barge should not be released and appealed to this court against the order of the lower court as aforesaid. Furthermore, the appellants challenged the jurisdiction of the lower court to entertain the suit and their application was dismissed by the lower court and they subsequently filed another appeal.
8. That both appeals as aforesaid were consolidated, heard and both dismissed by this Honourable Court on Tuesday, 23rd May, 2000.
9. That in dismissing the appeals as aforesaid, this Honourable Court ordered that the substantive suit at the lower court, should be determined expeditiously by the lower court and which order is still subsisting”.
(Italics is mine)
It is pertinent to note that the applicants have not countered the strong assertions by a further further better affidavit. The assertions in paras. 6 – 9 of the counter-affidavit of the respondents are very serious. This clearly shows the flagrant abuse of the application for stay of proceedings. From 1998 to 2003 is a period of six years, and within this six years, the applicants have appealed to the Court of Appeal, three times on issues that could conveniently be heard and determined at the trial court, and in which any party that is dissatisfied could make it a ground of appeal in a substantive appeal rather than an appeal on an interlocutory matter.
This is a typical case of abuse as stated by the Supreme Court in the case of Okorodudu. v. Okoromadu (1977) 3 SC 21 and recently in Amadi v. N.N.P.C. (supra) where Uwais, (CJN) stated when it is desirable to take preliminary issues along with substantive case in order to save time for litigants and the court. His Lordship had this to say:-
“…Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it, as a duty, to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary objections as the one here”.
I hold the view that in considering the competing interests of the applicants and the respondent, if the application for stay of proceedings is granted, the respondent will suffer more than the applicants because the main reason why the applicants are seeking for stay is that, they want to test the admissibility of exhibit R into evidence, I have already held that the document is not so crucial to the case of the applicant, since it will not determine the substantial case between the parties at the lower court. If exhibit R is admitted or rejected in the lower court, any party aggrieved by its rejection or admission can conveniently appeal along with appeal on the substantive case. See Amadi v. NNPC (supra).
Moreover, grant of stay of proceedings is a discretionary exercise that must be exercised judicially and judiciously and taking into account, the antecedent of the case where it is established as shown by the counter-affidavit of the respondent, the applicants have regularly appealed on each and every over-ruling of their objections by the lower court.
The conduct of the applicant cannot lend support for stay of proceedings.
Stay of proceedings is an equitable remedy and will not be employed to assist a party that has not come with clean hands. The application for stay is therefore, refused.
Other Citations: (2003)LCN/1450(CA)