Download PDF
RULING On 4th September 2019, the Defendants filed a motion seeking the following reliefs: 1. An Order staying proceedings or further proceedings and hearing of this suit pending the determination of the motion filed by the 1st and 2nd Defendants at the Court of Appeal Abuja Judicial Division for leave to appeal against the ruling of this honourable court delivered on 8th July 2019. 2. And for such other or further orders as the honourable court may deem fit to make in the circumstances. The Defendants brought the motion under Order 17 Rule 1 and Order 64 Rules 8[1], 11[1] and 14 of the Rules of this court 2017 and under the inherent powers of the court. The grounds of the application and in the affidavit filed in support of the motion, deposed to by Hosea Udoh, a Litigation Executive in the law firm of counsels for the Defendants, contain the facts that the Defendants are dissatisfied with the ruling of this court delivered on 8th July 2019 and have filed a motion for leave to appeal in the Court of Appeal since the ruling was an interlocutory decision. The motion for leave has not been determined but the Defendants have applied to the Court of Appeal for a date to hear the motion. The notice of appeal contains cogent and arguable grounds of with likelihood of success. The grounds of appeal also raise issues on jurisdiction of the court to entertain this suit and that the balance of convenience is in favour of the applicants. It was also deposed that there are special circumstances to warrant the grant of the application and the court was urged to stay proceedings in the suit to enable the applicants exercise their right of appeal. Attached to the affidavit and marked Exhibits 1 and 2 are a copy of the motion for leave to appeal filed in the Court of Appeal and a copy of the application made to the Court of Appeal for a date to hear the motion for leave to appeal. The motion is also supported by a written address of counsel for the Defendants. The Claimant filed a counter affidavit on 4th October 2019 but deemed filed on 12th November 2019. The counter affidavit was deposed to by the Claimant. The counsel for the Claimant filed a written address in support of the counter affidavit. The substance of the depositions of the Claimant is contained in paragraph 5 of the counter affidavit. The depositions in this paragraph are replete with legal arguments and conclusions. Section 115 (1) and (2) of the Evidence Act 2011 provide that an affidavit to be used in proceedings before a court shall contain only statement of facts and not extraneous matters by way of objection, prayer or legal argument or conclusion. See BAMAIYI vs. STATE (2001) 8 NWLR (Pt.715) 276 at 289. The depositions in paragraph 5 of the Claimant’s counter affidavit are offensive to the above provisions of the Evidence Act. Paragraph 5 of the counter affidavit is incompetent for this reason and it is struck out. What remains of the Claimant’s counter affidavit is inconsequential to answer the averments in the Defendants’ affidavit. It is deemed that the Claimant has not controverted the facts contained in the Defendants’ affidavit. COURT: On 8th July 2019, this court delivered a ruling in respect of a notice preliminary objection filed by the Defendants. The Defendants’ objection was dismissed. In this application, the Defendants want this court to stay proceedings in the suit pending when the Court of Appeal will hear their motion for leave to appeal against the ruling. Having carefully examined the facts in support of this application and having read the written addresses of the respective counsels to the parties on the application, the issue I will consider in this application is whether the Defendants have made out a case for the grant of the application. The decision to grant or refuse an application for stay of proceedings is at the discretion of the court. See VASWANI TRADING CO. vs. SAVALAK & CO. (1972) 12 SC 77; OKAFOR vs. ONAIFE (1989) 4 NWLR (Pt. 161)180. See also Order 64 Rule 8 and 10 [1] of the rules of this court. For the court to exercise its discretion in favour of granting the application, the rules of the court, in Order 64 Rule 14 [1], has set out the requirements to be fulfilled by the applicant. The Rule provides as follows: (1) Where a matter is on-going and a party is applying for stay of proceedings pending appeal, the party shall in the application for stay of proceedings: (a) file an application for stay of proceedings pending appeal, (b) pay for the compilation of the records of proceedings for which the party is seeking stay of proceedings; (c) exhibit certified true copies of the record of proceedings for which the party is seeking stay of proceedings pending appeal and exhibit evidence that there is a valid appeal before the Court of Appeal ; (d) exhibit evidence that the appeal has been entered in line with the appropriate Rules of the Court of Appeal ; and (e) exhibit evidence that the party has been granted leave by the Court of Appeal, where leave is required either by law or by the rules or the Practice Directions of the Court of Appeal. Then, the provisions of Order 64 Rule 14 [2] contain that it is only after all the requirements in sub rule 1 above have been satisfied that the court may consider granting or refusing the application for stay of proceedings. The only evidence shown to this court with respect to the said appeal is the motion for leave to appeal filed by the Defendants in the Court of Appeal. It is clear in paragraph [e] of rule 14 [1] that the mere filing of a motion for leave to appeal is not sufficient to grant stay of proceeding. Leave to appeal must have been obtained before stay of proceedings can be considered or granted. None of the requirements in Rule 14 [1] of Order 64 has been met by the Defendants in this application for stay of proceedings. In view of the failure of the Defendants to satisfy the requirements for the grant of application for stay of proceedings as stipulated by the rules of this court, there are no serious materials placed before the court with which to proceed beyond this point in this application. The application does not have merit and it is hereby dismissed. No order as to cost. Hon. Justice O. Y. Anuwe Judge