Nigerian Spannish Eng. Co. Ltd. & Anor. V. Olympic Steel Mill Hong Kong Ltd. (2000)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
By an order ex parte made on 3-4-96 by Belgore C.J. of the Federal High Court at the Lagos Division of the court, a case of a petition for the winding up of the 1st applicant company instituted by the respondent together with a motion on notice were transferred to the Kaduna Division of the Federal High Court for hearing and determination. However, pending the hearing and determination of the motion on notice for the same reliefs at Kaduna, the Hon. Chief Judge also granted the following reliefs ex parte
“1. That Mr. M.K. Lai and Mr. Masando Susuki are to operate the account of the 1st respondent company and they are to do so under the directive this court may time to time give.
- That the two persons named are to pay now and continue to pay the salaries and emoluments of the workers of the 1st respondent’s company until the court otherwise orders.
- That the two orders are to be in force until the motion on notice is heard and determined.”
On receiving the case on transfer to Kaduna in his court Okeke J. re-affirmed the above ex parte orders of Belgore, CJ., of 3-4-96 on 15-4-96 and adjourned the motion on Notice for the same reliefs to 23-4-96 for hearing.
For reasons which are not apparent from the affidavits and counter affidavit in the present application before this court, the motion on notice was not heard on 23-4-96 until after nearly two years when it came up for conclusion of hearing before the court on 25-2-98 Yunus Uztaz Usman for the respondents concluded his address opposing the motion on notice by the following remarks.
“The best option is to order accelerated hearing of the petition instead of granting the motion on notice.”
Mr. Adolor learned counsel to the applicant in the motion on notice agreed with the remarks of the respondents counsel and also urged the court to grant accelerated hearing of the petition. Thus with the consent of the parties and upon their applications, the learned trial Judge granted the request of the parties for accelerated hearing of the petition itself rather than waste more time on the ruling on the motion on notice in the following terms:-
“In view of the recent development in which both counsel have agreed to accelerated hearing of the petition instead of ruling the motion on notice, hearing of the petition is now adjourned to 29th and 30th April, 1998”.
While the petition was still unheard, the appellants/applicants applied at the trial court for the ex parte orders of 3-4-96 and 15-4-96 to be set aside.
That motion was heard on 15-7-99 and in a reserved ruling; the trial court dismissed the application on 28-7-99 and fixed the petition itself for hearing on 30-9-99, 11-10-99 and 12-10-99 respectively. However, by a motion on notice dated 30-7-99, the appellant/applicants filed an application for leave to appeal against the ruling of 28-7-99, stay of further proceedings in the case and the suspension of the operation of the two ex- parte orders of 3-4-96 and 15-4-96 pending the determination of their appeal to this court. In its ruling delivered on 11-8-99, the trial court granted the appellants/applicants first relief for leave to appeal against the ruling of 28-7-99 while ruling in respect of the second and third reliefs for stay of proceedings and suspension of ex parte orders were reserved till 27-8-99.
However, before the trial court could deliver the ruling on the two reliefs on 27-8-99, the respondent in the present application had filed an application at the trial court to arrest the ruling and this application together with other motions filed by the appellants/applicants for the dismissal of the petition itself and the motion were further adjourned to 8-2-2000 for hearing at the trial court in its ruling of 29-11-99.
Meanwhile, by a motion dated 26-10-99 and filed in this court on 27-10-99, the appellants/applicants without waiting for the outcome of the ruling on their application for the suspension of the two ex parte orders of the trial court of 3-4-96 and 15-4-96 pending the determination of their appeal against the ruling of the trial court of 28-7-99 refusing to set aside the same two ex parte orders, again filed another application for the same reliefs before this court, pending the determination of their appeal.
Moving the application Mr. Olatunji for the applicants relying on the affidavit and two further affidavits in support of the application submitted that special circumstances have been disclosed in the facts to justify this court granting the applicants reliefs in spite of the fact that the ruling on similar application is still being awaited at the trial court. Learned counsel maintained that since the trial court had refused to deliver its ruling on the appellants/applicants application for the same reliefs, they were entitled to seek the same reliefs before this court having regard to the decisions in the case of Irukwu and Ors. v. Trinity Mills Insurance Brokers (1997) 6 NWLR (Pt. 507) 100; Global Medical Care U.K. Ltd v. Medicair (West Africa) Ltd. (1998) 2 NWLR (Pt. 536) 86 and Attamah and ors v. Anglican Bishop of Niger and ors (1999) 9 and 10 SCNJ 23 at 28; (1999) 13 NWLR (Pt.633) p. 6. On the operation of Ex parte orders, the learned counsel to the appellants/applicants cited Order 8 Rule 12 of the Federal High Court (Civil Procedure) Rules 1999 and urged this court to grant the application.
On the counter affidavit, learned counsel to the applicants referred to section 97(2) (c) of the Evidence Act and the case of Okeke v. Attomey General Anambra State (1992) 1 NWLR (Pt. 215) 60 at 80 and urged this court to strike out the paragraphs of the counter affidavit exhibiting uncertified public documents comprising court processes filed at the lower court.
In opposing the application, the learned senior counsel for the respondent also relying on the same section 97(2)(c) of the Evidence Act and the case of Okeke v. Attorney General Anambra (supra) submitted that the applicants Notice of Appeal exhibited as Exhibit AS7 to the further affidavit in support of the application, was also not certified and as such it is not properly before this court in support of the application which must therefore fail.
Learned senior counsel for the respondent also contended that the application is not competent as it is in breach of the rules of this court because similar application had been filed by the applicants at the lower court and that the application had already been heard by the lower court. That since that application is still pending at the lower court, this court can not now exercise its discretion in favour of the applicants and as such this application must be refused.
In his short reply, learned counsel for the applicants pointed out that the applicants Notice of Appeal was duly certified by the stamp of the lower court and that as order 3 rule 3(4) of the Court of Appeal Rules does not apply to the application, the applicants deserve relief.
In the determination of this application, I shall first dispose off the rather half hearted objections raised by both sides to each others documents exhibited to the affidavits in support of the motion and counter affidavit that being public documents, they ought to have been duly certified before they could have been used in support of or in opposing the application. I have carefully examined the affidavits in support of the motion and the counter affidavit filed by the respondent together with the documents exhibited therein, and I am satisfied that the motion on notice dated 30-7-99, 20-8-99 and 24-11-99 together with their affidavits in support and Exhibits therein and the Notice of preliminary objection dated 27-8-99 exhibited in the counter affidavit filed by the respondent in the present application were duly filed at the lower court as authenticated by the Registrar of that court on the face of the documents themselves. Similarly, I am also satisfied on the face of the applicants Notice of Appeal Exhibit AS7 to the further affidavit in support of the motion that the document was duly filed at the lower court. In the circumstances therefore, I do not have any fear that I shall fall into any error in looking at these court processes duly filed at the lower court in reaching my decision since are materials before this court in the determination of this application, See Ibodo v. Enarofia (1980) 5-7 SC 42; Okafor v. Nnaife (1997) 4 NWLR (Pt.64) 129 and Fnnduk Engineering Ltd. v. McArthur (1995) 4 NWLR (Pt. 392) 640 at 652. I shall therefore proceed to determine the application on the materials now before this court.
The relief under consideration in this application dated 26-10-99 reads:-
“An order suspending the operation of the two ex parte orders made by the lower court dated 3rd April, 1996 and 15th April, 1996 excluding all the three Nigerian Directors including the chairman of the company the 2nd appellant from the management of 1st appellant company obtained behind the back of the appellants for the past three years pending the determination of the applicants appeal to this court.”
The relief is clearly seeking a stay of execution of the two ex-parte orders of the lower court of 3-4-96 and 15-4-96 respectively pending the determination of the applicants appeal. The question to be asked and answered at this stage is what is the applicants appeal about? From the Notice of Appeal Exhibit AS7 to the further affidavit in support of the application, it is quite plain that the applicants appeal is against the ruling of the lower court dated 28-7-99 refusing to set aside the two Ex parte orders made against the applicants on 3-4-96 and 15-4-99.
Thus the decision of the lower court which is the subject of the applicant’s appeal now pending in this court is only that decision of the lower court delivered on 28-7-99. In other words, there is no appeal now pending in this court by the applicants against the two decisions of the lower court contained in the two ex-parte orders of that court of 3-4-96 and 15-4-96 in spite of the fact that the applicants have the right to appeal against those decisions as of right on questions of law alone or with leave of the lower court or of this court on other questions of facts or mixed law and fact under sections 220(1)(b) and 221 of the 1979 Constitution. This is because the decisions of the lower court in the two ex parte orders are decisions of the court within the meaning of that word under section 277(1) of the 1979 Constitution which are appealable to this court.
The power of this court to order a stay of execution of any judgment or order of a lower court pending the determination of an appeal is predicated on the existence of an appeal against the judgment or order of the lower court to be stayed or at least a firm undertaking to file such appeal. This is quite plain from the language of Section 18 of the Court of Appeal Act, Cap. 75 of the Laws of the Federation 1990 which is the source of the power of this court in this respect which states:-
“An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”
Therefore in the absence of an appeal against the two orders definitely this court would have no jurisdiction to grant the relief being sought in the present application. See Interco Tractors (Nigeria) Ltd. v. U.A. C. (1988) 2 NWLR (Pt. 76) 303 at 329-330. Although the applicants appeal now pending in this court is against the decision of the lower court given on 28-7-99 refusing to set aside the ex parte orders of the lower court of 3-4-96 and 15-4-96, the applicants appeal against that decision of the lower court of 28-7-99 more than 3 years after the decision of the lower court granting the ex parte orders in April 1996 can not also be an appeal against the ex parte orders. The decisions in 1996 are quite distinct and separate from the decision of the lower court of July 1999 which is now on appeal and in respect of which there is no application for stay which would have been valid in law. I therefore hold that in absence of an appeal against the two ex-parte orders of the lower court; this court has no jurisdiction to grant the relief being sought in this application.
The next question which is also bordering on jurisdiction of this court to grant the relief being sought by the applicants in this application relates to the requirements of order 3 Rule 3(3) and (4) of the Court of Appeal Rules 1981 which state:-
“(3) Where an application has been refused by the court below an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.
(4) Wherever under these rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”
Now having regard to the above provisions of the rules of this court, should the present application in this court have been made when the application for similar or the same relief is still pending at the lower court? The answer of course is in the negative. The main argument of the applicants’ counsel though ingenious, is that the adjournment of their remaining two reliefs to 27-8-99 for ruling which could not be delivered that day following the objection raised by the respondent which had led to the subsequent adjournment of the numbers to 8-2-2000, amounted to refusal of their application thereby justifying their present application in this court. I do not at all agree with this argument. This is because since the applicants’ application had already been heard by the lower court and it is only the ruling that is being awaited when objection to its delivery was raised by the respondent, such situation in my view, cannot amount to refusal of the application as the delay in the delivery of the ruling was not a deliberate act on the part of the lower court. In the circumstances therefore the hearing and determination of the present application by this court will have the effect of depriving the lower court of its jurisdiction to determine the applicants’ application which it had already heard. By the provisions of Order 3 Rule 3(3) and (4) of the Rules of this court earlier quoted in this ruling, the jurisdiction of the lower court and this court are concurrent on the subject of stay of execution pending appeal when the appeal has not been entered.
Therefore, unless and until the record of appeal has been filed and served, the jurisdiction of the lower court in respect of the applicants application still remains in force and it is the duty of this court as an appellate court to guard that jurisdiction and not to destroy it particularly when it has already been exercised at the hearing of the applicants application and what now remains is the exercise of that jurisdiction in delivering the courts ruling in the determination of the application. On the ground of the application of order 3 Rule 3(3) of the rules of this court I also hold the view that the court lacks the jurisdiction to hear and determine the present applicants application for stay or suspension of the two ex parte orders of the lower court. See Irukwu and ors v. Trinity Mills Insurance Brokers and ors (1997) 6 NWLR (Pt. 507) 100 at 108 -109.
With regard to the question whether the application has satisfied the requirement of sub-rule (4) of Rule 3 of order 3 of the Court of Appeal Rules 1981, the answer is quite simple. It is quite obvious from the undisputed facts of this case that there is no sufficient cause by way of special circumstance of impossibility or impracticability to support the present application made to this court while similar application for the same relief is pending at the lower court in respect of which only ruling is being awaited. In the circumstances of this case, I am of the firm view that, it can not be said that there had been unreasonable delay that would compel the applicant to approach this court on a similar application. Indeed, it might have been a different situation if a delay would be seen in a particular situation to amount to refusal because of the consequences that would likely have been followed particularly if the application had been adjourned indefinitely or not fixed for hearing despite its urgency. In any case there is certainly no urgency in the present case where the applicants had allowed the ex parte orders to remain in force for more than 3 years before their application to suspend the operation or the orders at the lower court. It certainly goes against the grain of our judicial norms and procedures under the constitution and the laws in this country for this court being an appellate court to pre-emptor place a fait accompli on the decision of a lower court on a matter on which this court and lower court have concurrent jurisdiction. See Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130; Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 354 and Irukwu and ors. v. Trinity Mills Insurance Broker and ors. (1997) 6 NWLR (Pt. 507) 100 at 108 -109. Thus having regard to the requirement of sub-rule (4) of Rule 3 of Order 3 of the Court of Appeal Rules 1981, the present application is again incompetent.
Finally, having regard to all the circumstances of this case, I am of the view that this application is premature as this court is without jurisdiction to grant the relief sought. Accordingly the application dated 26- 10-99 and filed on 27-10-99 is hereby struck out. I award N3000:00 costs to the respondent.
Other Citations: (2000)LCN/0666(CA)