National Judicial Council V. Hon. Justice P.N.C. Agumagu & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A (Delivering the Leading Judgment)

This appeal was adjourned to today with the consent of all the parties, on 21/10/14, for hearing and all Counsel appeared satisfied, especially, when Learned Counsel for the 1st Respondent made an oral application to file their Respondent’s Brief, which was not opposed by the Appellant.

Today, however, 1st Respondent, apparently, threw an affidavit on us, filed only yesterday, 5/11/2014, just for our information, saying that they (1st Respondent) had gone on appeal to the Supreme Court against the decision of this Court, reached on 21/10/14, which held that the Records of Appeals were properly before us.

It is on the basis of this affidavit that the 1st Respondent sought adjournment of this appeal, pending when the Supreme Court can hear and determine the motion for stay of proceedings, which the 1st Respondent (as Appellant) filed at the Supreme Court on 4/11/14.

Counsel for the 1st Respondent has told us that the Records of their Appeal have been compiled and transmitted to the Supreme Court, already, and that the appeal, which he said was filed on 27/10/2014, has already been entered in the Supreme Court. He relied on the case of Mohammed vs. Olawunmi (1993) 4 NWLR (Pt.287) 254 and on Comptroller of Nigerian Prisons vs. Adeakonye (1999) 10 NWLR (Pt.625) 400, to say that once the trial court or appellate Court has notice of a pending appeal before the Superior Court, the latter should, in deference, stay proceedings and await the decision of the Appellate Court on the issue on appeal.

He argued, strongly, that since their appeal to the Supreme Court is against our decision on the application of Practice Direction, 2013, to this Appeal, whereof they contested our jurisdiction, that there is no proper Records of Appeal before us, we cannot proceed with the hearing of this appeal, today, in defiance of the pending appeal at the Supreme Court on the issue.

Learned counsel for the Appellant, Chief Olanipekun SAN, has opposed the application for adjournment, since the appeal was specifically adjourned for hearing today. He relied on paragraph 2(c) (iii) and (vi) of the Practice Direction, 2013, to the effect that interlocutory appeals shall be determined expeditiously, without delay.

Counsel further relied on the proviso to paragraph 3 (d) of the Practice Direction, which bars application for adjournment on the date of hearing of interlocutory appeal, saying the same shall not even be considered on a day fixed for the hearing of the appeal. Counsel also submitted that the cases of Mohammed vs. Olawunmi (supra) and Comptroller of Nigerian Prisons vs Adeakonye (supra) are not applicable.

He relied on several authorities, including Okafor vs. Nnaife (1987) 4 NWLR (Pt.64) 129 and Adekoge Motors vs Adesanya (1989) 3 NWLR (Pt.109) 250; Obi vs. Eleawoke (1998) 6 NWLR (Pt.554) 436 and Mobil Producing Nigeria Unlimited vs. Ayeni (2008) 1 NWLR (Pt.1073) 205, to say that the pendency of appeal at the Appellate Court does not operate as automatic stay of the matter at the lower court. He urged us to refuse the application and hear the appeal.

Learned Counsel for the 2nd Respondent and for 3rd and 4th Respondents aligned with the submissions of Counsel for the 1st Respondent and also urged us to hear the appeal, refusing the application for adjournment, as to grant same would be an affront to the Practice Direction, which Counsel for 3rd and 4th Respondents, submitted was designed to cure the mischief of delay occasioned by interlocutory appeals, like this one.

In considering this application for adjournment, one is forced to look at the entire conduct of this case by the parties and their counsel. The appeal before us is against the interlocutory orders of the learned trial court consolidating the cases before it. Appellant came here to protest that interlocutory decision. Here in this Court the 1st Respondent has rushed to the Supreme Court to protest the interlocutory decision of this Court. The cycle of interlocutory appeals appears to continue, while the substantive matters are stalled.Courts & Judiciary

This Court has always deprecated the act by counsel of using interlocutory appeals to frustrate the hearing and determination of substantive matters, and I think this is one of the reasons the Practice Direction, 2013, came to being.

See the case of Nwana vs. UBN Plc (2013) LPELR 21823 CA, where it was held that, where a party’s right of appeal will not be affected, if he awaits the final determination of the trial on the merits, it is proper to exercise patience, rather than jumping on appeal over issues that only serves to delay the trial.

The above admonition, notwithstanding, we think since 1st Respondent has appealed against our ruling of 21/10/14, which was predicated on the Practice Direction of 2013, and the main thrust of the appeal seems to be against our reliance on the said Practice Direction 2013, and since the Appeal has been entered in the Supreme Court, in Appeal No: SC/714/14 against this Appeal (No: CA/A/361/2014), it appears only proper, in due deference to the Supreme Court, to halt the hearing of this appeal, while awaiting the determination of 1st Respondent’s Motion for stay, pending at the Supreme court in SC/714/14. We think the interest of justice will be better served, by so doing, to avoid being seen to act with impertinence.