United Bank for Africa Plc V. Mode Nigeria Limited & Anor (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A. 

F

ollowing a judgment (headed Ruling) of an Enugu High Court presided over by Ugwu C. J. delivered on the 15th day of June, 1999 ordering the applicant who was the 1st defendant in the Suit to pay the sum of N45,166,498.03 and costs to the plaintiff/respondent, the applicant filed a motion for a stay of execution of the said judgment. The motion was filed in the High Court of Enugu Judicial Division. The motion was duly argued, and ruling thereon reserved for 13th day of July, 1999. Before the said ruling was delivered, the applicant filed its present motion in this court. Its present motion dated 29th day of June, 1999 was filed in this court on the 30th day of June, 1999. The present motion is in the same terms as the one filed in the lower court for which the parties were waiting a ruling thereon, The present motion was fixed for hearing by the Registry of this Court on Monday the 4th October, 1999 at 9 O’clock.

On the 7th day of September, 1999 the plaintiff/respondent filed a Notice of Preliminary Objection in this Court against the said motion. The preliminary objection was duly argued by counsel on both sides on 4th October, 1999 being the date it was fixed by the Registry. The objection as contained in the said Notice is against the hearing of the applicant’s motion “with a prayer for its dismissal in limine on the grounds that (sic) is not a competent process and:

“‘(a) This Honourable Court lacks jurisdiction to entertain it, same having been filed before a ruling on the same application to the lower court had been delivered.

(b) The application is in contravention of the rules of this Honorable Court.

(c) The action of the Appellant is an abuse of the process of this Honourable Court clearly meant to over reach the Respondent.”

Arguing his preliminary objection Mozia Esq. Learned counsel for 1st respondent submits that the jurisdiction of this court is contingent on a prior application. The application is one for a stay of execution of the judgment of the lower court. He refers to L.S.D.P.C. v. Citymark (West Africa) Ltd. (1998) 8 NWLR (Pt. 563) 681 at 694; Consolidated Oil Ltd. v. Sumeroidd Nig. Ltd. (1998) 8 NWLR (Pt. 561) 184 at 192. Learned counsel submits that it is improper to file an application before this court asking for a stay of execution during the pendency of a similar application before the High Court. Such an application, counsel contends, is an abuse of the process of the court as well as an abuse of the freedom of access to the court by the applicant. Such an application should be struck out. He refers to Owoyemi v. Governor of Ogun State (1993) 2 NWLR (Pt. 278) 702 at 706. It is submitted that the ruling in the motion for stay of execution filed in the High Court was delivered on 13th July, 1999 whereas this application was filed in this Court on 30th June, 1999 i.e. before the ruling of the lower court was handed down. Counsel refers to Fareast Mercantile Co. Ltd. v. Boothia Maritime Incorporated & Ors. (1998) 5 NWLR (Pt. 551) 620 at 629; Globe Motors Holdings (Nig) Ltd. v. Honda Motors Co. Ltd. Japan (1998) 5 NWLR (Pt. 550) 373 at 382 and submits that “while all sorts of unethical behaviour may be regarded as cleverness in the market place, such is not permissible in the legal system of our country,” per Ayoola JCA (as he then was) in the Fareast Mercantile case (supra).

Chief Williams learned Senior Counsel for the applicant, in his reply posed the questions – When does the mover of a motion make his application to the court? Is it on the day he filed his motion in the Registry of the Court or on the day he appears in court and moves his motion? He submits that the mover of a motion makes his application on the day he appears in court and moves his motion. He refers to Missini v. Balogun (1968) 1 All NLR 318 and to Order 3 Rule 3(4) of the Court of Appeal Rules. He drew the attention of the court to the pro-forma for a motion i.e. Take Notice that on …. day …. the court will be moved … etc., and submits that the application is made on the day the applicant or his counsel moves his motion in court.

Learned Senior Counsel submits that there are two prayers in his motion. Besides the motion for stay of execution there is also a prayer for injunction. On the prayer for injunction he refers to Order 1 Rule 20(8) of the Court of Appeal Rules and submits that he did not need to make an application in the court below to bring a motion for injunction in this court. He urges the court to dismiss the preliminary objection.

Mr. Mozia in his reply submits that the relevant date as postulated by applicant’s counsel is the date of filing the motion. See Owoyemi’s case (supra). He says that the Missini case (supra) did not deal with issue of stay of execution. Learned counsel concedes that under Order 1 Rule 20(8) of the Court of Appeal Rules, an application for injunction can be made in this court without the applicant going first of all to the court below.

The facts which gave rise to the preliminary objection are not in controversy. It is not in controversy that an application for a stay of execution in respect of the judgment in Suit E/106/99 between the parties to this motion was dismissed at the High Court Enugu on 13th July, 1999; that on the 30th June, 1999 while ruling in the said application had not been delivered the applicant filed another motion in this court praying this court for exactly the same reliefs as prayed in the High Court; that the motion filed in this Court on the 30th June, 1999 came up for hearing on the 4th October, 1999 being the date it was fixed by the Registrar of this Court; that learned counsel for the plaintiff/respondent raised a preliminary objection he filed on 7th September, 1999, to the hearing of the motion on its merits and prayed that it be dismissed in limine. His grounds for the objection as set out in his Notice of Preliminary Objection have been set out above in this ruling. This ruling is in respect of the preliminary objection.

The main plank of the objection is that this court lacks the jurisdiction to entertain the motion since ruling in a similar motion filed in the lower court had not been delivered at the time the motion was filed in this court and that the application contravenes the rules of this court. It is also complained that the application amounts to an abuse of the process of this court. The rule of this court which comes directly in focus is Order 3 Rule 3(4). It provides:

“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.”