Nizo (Nig.) Ltd Vs Hajiya Binta Aliyu (2005)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is a motion on notice dated 28th day of February, 2005, and filed in this court same day, the appellants/applicants whose appeal is pending in this court sought for the following orders:

“An order staying proceedings in suit No. KDH/KAD/398/2003 pending before Hon. Justice Balogun of the Kaduna High Court, pending the determination of an appeal filed on 7/5/2004 by the applicants at the Court of Appeal, Kaduna Division, against the ruling of the said Justice Balogun in suit No. KDH/KAD/398/2003 on 6/5/04.”

And for such other order/orders as the court may deem fit and just to make in the circumstances of this application.”

The motion was supported by a 4 paragraph affidavit and also a 4 paragraph further affidavit.

The most relevant of these paragraphs as far as the application is concerned are paragraphs 3 of the supporting affidavit and 3(a) and (b) of the further affidavit in which it was averred on behalf of 8 the applicants as follows:

“3. That I have been informed by P.C. Chukwuma Esq. of counsel personally handling this matter for the applicants at our Kaduna office at 3A Ali Akilu Road, Kaduna, on 25/2/05, at 3pm being information he obtained in the course of handling this matter and I verily believe him as follows:

a. That in the course of hearing this matter at the High Court, counsel formerly representing the applicants, I. A. Auditz, Esq. filed a motion on notice dated 8/3/2004 praying for the dismissal of the suit on the grounds that condition precedent was not met, the court has no jurisdiction to hear the matter, the plaintiff lacks locus standi to institute the matter, the suit discloses no reasonable cause of action and is an abuse of court process.

b. That the respondent’s counsel filed a preliminary objection to the hearing of the applicant’s said motion on the ground that the issue sought to be canvassed goes to the merit of the case.

c. That the trial court heard arguments on the respondent’s preliminary objection and in a ruling delivered on 6/5/2004, upheld the respondents preliminary objection and struck out the applicant’s said motion dated 8/3/04 on the ground that the issues raised in the motion of 8/3/04 are the same in the substantive case. A copy of the said ruling is annexed hereto and marked exhibit A.

d. That being dissatisfied with the ruling of the trial court, the applicants, by a notice and grounds of appeal dated 7/5/2004 appealed against the said ruling of the trial court to the Court of Appeal, Kaduna. Copies of the said notice and grounds of appeal, receipt for filing same and receipt for deposit paid for the appeal are annexed hereto and marked exhibits B, C and D respectively.

e. That by an application dated 27/5/04, the applicants applied to the trial court for stay of proceedings in the matter pending the determination of the appeal against the trial court’s ruling of 6/5/2004.

f. That in a ruling delivered on 17/2/05, the trial court dismissed the applicants’ application for stay of proceedings. A copy of the said ruling is annexed hereto and marked exhibit E.

g. That the issues of jurisdiction and others raised in the applicants’ motion of 8/3/04 are not yet decided by the ruling of the trial court on 6/5/04.