Mr. Samir Sulaiman V. Sword Sweet &. Confectionery (Nigeria) Limited & Ors. (2009)

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CHIDI NWAOMA UWA, J.C.A.

The appeal is against the Ruling on an application for a stay of proceedings pending appeal, delivered by Hon. Justice J. T. Tsoho sitting at the Federal High Court, Ibadan Judicial Division on 8th February, 2006.

The Ruling was in favour of the Respondents herein. Being dissatisfied with the said decision, the Appellant after obtaining the leave of Court on 21st February, 2006 lodged his appeal on the same date.

The Appellants Amended Brief of Argument dated 14th February, 2008 was filed on 18th February, 2008 and served on 27th February, 2008, The Respondents have raised an objection to the competence of this appeal by their Notice of Preliminary Objection originally dated and October, 2007 and filed on 26th October, 2007 but now dated and refilled on 7th April, 2008 following the amendment of the Appellant’s Brief of Argument. The argument on the objection is incorporated in the Respondents’ Brief of Argument,

The background facts are that the Appellant by an originating motion dated 21st October, 2003 instituted a suit claiming several reliefs against the Respondents. The Respondents filed a Memorandum of Conditional Appearance dated 10th November, 2003 and four Counter Affidavits in response to the Appellant’s Motion (pages 10, 11-20, 33 – 36 of the record). The Respondents also filed a Preliminary Objection dated 10th November, 2003 challenging the jurisdiction of the court. The Notice of Preliminary Objection was moved on 16th June, 2004 and in his Ruling on 6th June, 2005 the learned trial judge dismissed the grounds of objection raised by the Respondents.

The Respondents being dissatisfied with the decision of the lower court of 6th June, 2005 filed a Notice of Appeal dated 20th June, 2005 on the same date without leave being an interlocutory decision on grounds of law. The Respondents also filed a motion dated 5th July, 2005 for stay of further proceedings pending the hearing and determination of the appeal. The application was moved on the 21st day of November, 2006, which was opposed by the Appellant but the learned trial judge granted the stay of proceeding spending appeal on the 8th day of February, 2006.

The Appellant being dissatisfied with the decision of the Court granting a stay of proceedings pending the appeal sought leave to appeal by his motion dated 10th February, 2006 which was granted on 21st February, 2006.

In this appeal the Appellant’s Notice of Appeal is dated 21st February, 2006 signed by “S. A. Onadele & Co.” (pages 141 – 145 of the records). The Appellant’s Amended Brief of Argument is dated 14th February, 2008 and filed on 18th February, 2008. The Respondents filed a Notice of Preliminary Objection dated 7th April, 2008 in accordance with the rules of this Court challenging the competence of this appeal as well as all other processes filed by the Appellant as raised in the Preliminary Objection. The grounds for bringing the application are as follows:-

1. The Notice of Appeal dated 21st February, 2006 was not issued by a Legal Practitioner known to law.
2. The Appeal by reason of (1) above is incompetent and liable to be struck out

The Preliminary Objection was argued in the Respondents’ Amended Brief of Argument dated and filed on 7th April, 2008 deemed properly filed and served on 24th November, 2008 by order of Court and sequel to the Appellant’s reply brief to the preliminary objection, also filed a reply on points of law dated and filed on 16th December, 2008.

There are eight (8) grounds of appeal from which the Appellant distilled two issues for determination by this court, they are:

(1) Whether the Respondents have a valid and arguable pending appeal to sustain an application for stay of proceedings.(Grounds 1 and 2).

(2) Assuming the appeal was valid, did the trial Court exercise its discretionary power judicially and judiciously in granting stay of proceedings pending the said appeal? (Grounds 3 – 8).

In respect of their preliminary objection the Respondents in response to the Appellant’s Brief of Argument adopted the two issues raised by the Appellant but rephrased them as follows:

(1) Whether the Respondents have a competent and arguable appeal to warrant the grant of a stay of proceedings pending appeal.