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BEFORE THEIR LORDSHIPS Hon. Justice F. I. Kola-Olalere - Presiding Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbadu-Fishim - Judge DATE: January 13, 2011 SUIT NO.NIC/LA/9/2009 BETWEEN Mr. Abdul Shaibu - Claimant/Respondent AND Noble Drilling (Nigeria) Ltd - Defendant/Applicant REPRESENTATION Odiana Eriata holding the brief of K. Salau, for the claimant/respondent G. Bello for the defendant/applicant. RULING This is a motion on notice, dated 21st April 2010 but filed on the 2nd June 2010 brought by the defender/applicant pursuant to Order 30(1) of the National Industrial Court Rules 2007 and unter the inherent jurisdiction of the court seeking the following: 1. An order of this Court staying further proceedings in this matter pending the hearing and determination of the application for leave to appeal pending at the Court of Appeal and the proposed appeal sought to be filed against the ruling of this C urt delivered on 13th July 2009. 2. And for such further or other orders as this Court may deem fit to make in the circumstances. This applicant on is brought upon the following grounds: a. An application for enlargement of time has been filed together with a proposed Notice of Appeal which raises arguable and substantial issues of law has been filed in this suit. b. It is necessary to grant stay in order not to overreach the said application and render any order of the Court of Appeal nugatory. The motion is supported by a 15 paragraphed affidavit sworn to on the 22nd June 2010 by Jamiu Akolage, a legal practitioner in the firm of Adepetun, Caxton-Martins, Agbor & Co. represeni ng the defendant/applicant. Attached to the affidavit are 3 exhibits marked AA1 to AA3 In reaction, the claimant filed a 5-paragraphed counter-affidavit sworn to on the 26th October 2010 by Kayode Ogunmefun, a litigation officer. Both parties filed and exchange written addresses. The defendant/applicants written address is dated 21st April 2010 a d filed on the 2nd June 2010 while that of the limant respondent is dated and filed on ie 26th October 2010. Both parties adopted and relied on all the arguments ccniained in ieir written addresses. The defendant/applicant’s counsel began by informing the court that Exhibit AA3, which is a hearing notice from the Court of Appeal, has been overtaken by events as a new hearing notice was received from the Court of Appeal on the 4th November, 2010 adjourning the defendant’s application before the court to November 9, 2010. He informed the court that he would forward the hearing notice before the ruling is delivered. He raised one issue for determination as follows: Whether in all circumstances of this matter, the court ought to stay all further proceedings or not in this case pending the determination of the application filed at the Court of Appeal. He submitted that all courts of record have inherent powers to grant an application for stay of proceedings and its grant or refusal is discretionary citing Eze v. Okonji [1997] 7 NWLR (Pt. 113) 515 at 527 and V.S.T Co. Ltd v. Xtodens Trading Co. (Nig.) Ltd [1993] 5 NWLR (Pt. 296) 675 at 686 and that courts are enjoined to consider in the exercise of their discre on whether the grant of a stay will be just or convenient. He submitted further that he court must weigh all the circumstances of the case in the interest of justice including the balance of convenience and disadvantages which might be suffered by any one of the larties concerned. He referred to the case of Echaka v. Cattle Ranch [1998] 4 NWLR (Pt. 547) 526 at 537 D — E and 544E and submitted that the significant central consideratic a is the preservation of the res, citing Achukwu v. Ngige [2004] 8 NWLR (Pt. 875) 363 at 379 and The State v. Ajayi [1997] 5 NWLR (Pt. 505) 389 at 399 A — D. The defendant/applicant’s counsel conceded that an appeal has not been lodged against the ruling . f the court delivered on the l3 July 2009 but that for the purpose of this application the applicant has demonstrated an undertaking to file a Notice of Appeal upon the grant o leave by the Court of Appeal referring to the deposition in paragraph 12 of the affidavit, Oladapo v. ACB [1951] 13 WACA 110 and Intercontractors v. UAC [1988] 2 NWLR (Pt. 76) 303 at 324 para H. Counsel to the defendant/applicant then went on to argue that ithough the general principle is that stay of proceedings or execution will not be entertained until an appeal has been lodged, in exceptional or appropriate cases, the order of st y may be granted when the applicant gives an undertaking to file the notice of appeal without delay, citing NDLEA v. Okorodudu [1997] 3 NWLR (Pt. 492) 221 at 243 D — E. The defendant/applicant’s counsel stated that an application for enlargement of time withi which to appeal has been filed at the Court of Appeal to which is exhibited a proposed notice of appeal which is referred to in paragraph 15 of the affidavit in support of this application. The defendant/applicant’s counsel contended that for the purpose of preserving the res, the principles for a stay of proceedings and stay of execution are similar. He submitted that the res in this application is the pending application filed at the Court of Appeal by the applicant citing Kotoye v. Saraki [1993] 5 NWLR (Pt. 296) 710 at 723 and Kigo v. Holman Bres- [1980] 12 NSCC 20 at 209. The defendant applicants counsel further submitted that the Supreme Court has held that the primary duty of all courts both trial and appellate, is to preserve the res so that at the end of the exercise whatever decision is reached is not rendered nugatory referring to United Spinners (Nig) Ltd v. Chartered Bank [2001] 14 NWLR (Pt. 732) 195 at 214. He went on to contend that though the notice of appeal has not been filed, the court cannot the pendency of the application to enlarge time filed at the Court of Appeal to which it has been exhibited a proposed notice of appeal. That the issues raised in appeal are issues of jurisdiction which the Supreme Court has always istituting a special and exceptional circumstance for the grant of stay of nding appeal. He cited Marlins v. Nicamar [1988] 2 NWLR (Pt. 74) 75 at - C. The defendant/applicant’s counsel submitted further that the cant’s grounds of appeal raise strong, substantial, and arguable points of g that this matter ought not to go on until the issues raised in the appeal referring to Kotoye v. Saraki, supra and Dada v. I.T.L. [2005] 11 NWLR (Pt. 396) 293 at 304 where Mohammed. JCA stated as follows: It is therefore definitely the law that where a genuine issue of jurisdiction is raised by an applicant in the grounds of appeal contained in his notice of appeal, the t is taken to have satisfied a special or exceptional circumstance to justify him relief of stay of further proceedings pending the determination of an appeal. The defendan applicant’s counsel argued that though this is an interlocutory appeal, if the appeal su ceeds, it will put an end to the proceedings in this court against the defendant/app. cant and urged the court to be persuaded by the dictum of Akpata, JCA (as he then was ) in the case of Odogwu v. Odogwu [1990] 4 NWLR (Pt. 143) 224 at 235 F — H where h s Lordship stated as follows: Whether or not to stay proceedings following an appeal against an Interlocutory order depends on a number of factors. It is for the trial Judge to exercise his discretion judicially bearing in mind the circumstance of each case. Invariably, however, where an interlocutory order does not finally dispose of the case, it would be wrong to stay proceedings because of an appeal lodged against it by an aggrieved party. This is so because such an order could be made the subject of an appeal if it ultimately becomes necessary following the final judgment. It saves time and expense to proceed with the case. It is the duty of every Judge to elirninate situation which may unnecessarily cause delay in the administration of justice. On the other hand if the appeal, if successful, will put an end to the proceeding in the trial court prudence dictates that a stay of proceeding be granted (underlining is the defendant/applicant’s). Counsel to the defendant/applicant also submitted that where the decision appealed against will utimately dispose of the suit, an application of stay of proceedings should be granted, citing Peter Nwabunike Eze v. A.O Okolonji [1997] 7 NWLR (Pt. 513) 515 at 530 to 531, Emmanuel v. WAPCIPCO Ltd [2001] 18 WRN 75 at 82 83 and NDLEA v Okorodudu, supra. He finally urged the court to grant the order staying all further proceedings in this suit pending the determination of the defendant/applicant’s application pending in the Court of Appeal because if successful, the applicant’s appeal will put an end to the proceedings in this court. In reply to the defendant/applicant, the claimant/respondent raised one sole issue for determination as follows: Whether or not this Court ought to stay further proceedings in this suit in the absence of a valid substantive appeal pending at the Court of Appeal. Counsel to the claimant/respondent submitted that a grant of stay of proceedings is predicated up a the existence of a valid substantive appeal and the production before the court of mater al affidavit evidence showing special and exceptional circumstances that will warrant t e court to exercise its discretion in favour of granting the application, lie submitted furt er that the claimant/respondent will be over-reached if the stay is granted since there is o res to preserve. That in deciding whether or not to grant a stay this court is guided by t e following principles as enunciated in the case of State v. Ajayi’ [1997] 5 NWLR (Pt. 505) 386: firstly that the grant of stay of proceedings being a discretionary power, the co rt must exercise it judicially and judiciously and secondly, the application for stay being in equitable remedy, the applicant must place before the court all material facts to enabic the court consider the application sympathetically. The claimant/respondent’s counsel submitted that the above conditions have not been met and are not ii favour of the applicant as there is no extant appeal before the Court of Appeal. That it was a motion for leave to appeal that was filed by the applicant at the Court of Appal which was struck out on the 5th of July 2010 by the Court of Appeal. The claimant/respondent counsel argued that it could be inferred from the attitude of the applicant that ill it was after was to cause unnecessary delay in the trial of this matter as it has failed nd refused to file a defence to the action since its commencement. He submitted thai the defendant/applicant’s application if granted will inflict greater hardship on the claima t/respondent, referring to the case of Obi v. Obi [1998] 4 NWLR (Pt. 544) 52 and argue i that in the instant case no special or exceptional circumstance exists necessitating he exercise of this discretionary power of the court. He cited Eze v. Okolonji [1997] 7 NWLR (Pt. 513) 519. The claimant/respondent’s counsel finally urged the court to c.smiss the application as it is misconceived and lacking in merit, having been brought to waste the time of the court and unnecessarily protract the judicial process. We have carefully gone through the written addresses of both parties on this application and all the authorities contained therein. This court delivered a ruling on the 13th July, 2009 on the preliminary objection filed by the defendant applicant wherein it assumed jurisdiction t. hear this matter. The defendant/applicant beinc dissatisfied with the ruling filed an appi cation in this court dated 17th July 2009 for leave to appeal against the ruling. This application was not heard and was eventually struck out on 13th November 2009 on the application of the defendant/applicants counsel that the 14 days time limit had elapsed within which the application should have been heard and a similar application had been filed in the Court of Appeal. He then informed the court that he had filed an appi cation for stay of proceedings on the 12th November 2009 pending the hearing and determination of the defendant/applicant’s application for leave to appeal. This applicatn was filed one day before the case was to be heard. It was adjourned to the 5th Februrary 2010 for hearing. On the 5th February 2010 date fixed for hearing, the application could not be heard because the claimant/respondent had only just been served with the defendant/applicant’s further affidavit a day before and so the matter was adjourned to the 15th of March 2010 for hearing. On 15th March 2010 the application could not be taken as the court was not properly com ituted due to lack of quorum and so the application was adjourned to 11th June 2010 for hearing. On 11th June 2010, the defendant/applicant’s counsel applied to withdraw the application for stay of proceedings dated 12th November 2009 which was subsequently struck out. Thereafter he informed the court that he had filed another application for stay of proceedings dated 21st April 2010 but filed on the 2nd June 2010. The claimant respondent’s informed the court that he had not seen the application but acknowledge that he was bound by the court’s record that his chambers had been served whereupon the matter was adjourned to November 5, 2010 for adoption of written addresses. It is necessan to give this background in order to appreciate the deliberate delay by one year, turns and twists this application has suffered at the instaice of the defendant/applicant. A close examination of the exhibits attached to the affidavit in support partic ilarly Exhibit AA2 which is the said application for the leave of the Court of Appeal was not annexed and, therefore, not exhibited contrary to the deposition in paragraph 6 of the affidavit. Furthermore, counsel to the defendant/applicant never filed the new hear ig notice he informed the court was received from the Court of Appeal adjourning th defendant’s application to November 9, 2010 which he undertook to do before this ruling is delivered. Additionally, the defendant/applicant in one breath indicated that its process at the Court of Appeal is an application for leave to appeal and in another breath said it was an appeal. We really do not know what the defendant/applicant wants the court to make of this. The claimant/respondent in paragraph 3(ii) and 3(iv) of his counter-affidavit has deposed to the following facts: (ii) The applicant filed a motion for leave to appeal dated 13th August, 2009 which was struck out on the 5th of July 2010. (iv) There is no appeal pending against the said decision at the instance of the applicant. These two facts have not been controverted by the defendant/applicant and are, therefore, deemed to be true. The defendant/applicant’s counsel has admitted that no appeal has been lodge at the Court of Appeal and that what was filed is an application for enlargemenl of time within which to appeal which was also not exhibited. From the depositions ontained in paragraphs 3(ii) and 3(iv) of the claimant’s counter-affidavit, there is in fact no application whatsoever by the defendant/applicant pending in the Court of Appeal. In order to consider an application for a stay of proceedings pending appeal, there must be a pending, appeal which must be va1id. A mere application for leave to appeal without a valid appeal cannot ground a stay of proceedings. See Ochor v. Ojo & ors [2008] 13 NWLR (Pt. 1105) 524, Nika Fishing Co. Ltd v. Lavina Corp. [2008] 16 NWLR (Pt. 1114) 509 ad FRN v. Abacha [2008] 5 NWLR (Pt. 1081) 635. The defendant/applicant’s motion for leave to appeal was struck out by the Court of Appeal on the 5th July 2010 and yet its cou sd on the 5th November, 2010 proceeded to adopt its written address in respect of i s application for stay of proceedings in this court, which is predicated upon the ground that it had a pending application before the Court of Appeal for leave to appeal whe i in fact he knew that the application had been struck out. This kind of practice is highy unprofessional and very unbecoming of counsel. Furthermore, Order 30 Rule 2 of the Rules of this court provides as follows: (2) Where the court has struck out an application for stay, no further application for stay shall be made in the same matter. In spite of this provision, counsel to the defendant/applicant has the temerity to bring this application after the earlier one dated 12th November 2009 was struck out. We find that the purpose of this application is to delay and unnecessarily prolong the proceeding at the expense of the claimant/applicant, and also to waste the time and energy of t e court. We hold that there is no pending appeal against the ruling of this court dcliv red on the 13th July 2009 both in law and in fact and, therefore, nothing to stay. This application lacks merit and is hereby dismissed with N30,000.00 costs to the claimant/respondent. The matter shall proceed to hearing. Ruling is entered accordingly. ___________________________ Hon. Justice. I. Kola-Olalere Presiding Judge _______________________ _______________________ Hon. Justice U. A. Obaseki-Osaghae Hon. Justice T. Agbadu-Fishim Judge Judge