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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: June 17, 2011 SUIT NO. NIC/ABJ/2/2010 BETWEEN: 1. COMRADE CHIEF JOSEPH A. AGHWEFEADA CLAIMANTS/RESPONDENTS (Deputy Zonal Chairman/Acting Zonal Chairman, PTD, Warri Zone Branch NUPENG) 2. COMRADE MURPHY OTOIBHI (Vice Chairman, Petroleum Tanker Drivers, Warri Zone Branch of NUPENG) 3. COMRADE AKPOVIRI GERMAN (Secretary, Petroleum Tankers Drivers, Warri Zone Branch of NUPENG) AND 1. COMRADE REV. J.B. ASEMOTA DEFENDANTS/ (Vice President, Nigerian Union of Petroleum and Natural Gas Workers, APPLICANTS Warri Zone, Branch of NUPENG) 2. COMRADE MATHIAS OTE (Warri Unit Chairman, PTD, Warri Zone, Branch of NUPENG) REPRESENTATION R. O. Irikefe, for the claimants. M. E. Edah, for the respondent/applicant. RULING This case was filed by the Claimants’ arising from an intra union dispute relating essentially to elections and tenures of offices. Defendants disputed the Court’s jurisdiction inter alia on the grounds that the conditions precedent to the commencement of the action and/or invocation of the jurisdiction of this Court to entertain an intra union trade dispute have not been satisfied and that in any case the action constitutes an abuse of Court process and is thus liable to be struck out. In a considered Ruling delivered on November 18, 2010 this Court dismissed the Defendants Preliminary Objection. The applicants by a motion dated the 25th November 2010 but filed on the 26th November 2010, are praying for an order staying further proceeding in this Court pending the hearing and determination of their appeal at the Court of Appeal. The motion is supported by a 20 paragraph affidavit to which is attached two exhibits, Exhibit “mee1” and “mee2”. The applicants also filed an 8 paragraph Further Affidavit on December 17, 2010 to which Exhibits “MEE1a” and “MEE”3 were attached. The applicants raised the following issues for determination by this Court: (a) Whether this Court has the jurisdiction to entertain this application? (b) Whether special circumstances have been established by the Applicants from the totality of their affidavit evidence to warrant the granting of an order for stay of further proceedings pending the hearing and determination of the appeal filed in this case? Arguing on Issue one, the applicants submitted that this Court has jurisdiction to hear this Application. Contending that the law on this issue has evolved from one of ambiguity to one of certainty over the years. Submitting that in this respect, the principle of law has been firmly established by a plethora of cases that a Court which delivers a decision whether subsequently drawn up or not still possesses the jurisdiction to grant an injunction, or a stay of further proceedings and/or any order to suspend the effect or execution of same in favour of the Applicants as in this case. That, in Ogunremi v. Dada 1962 1 All NR 663, the Supreme Court per Brett FJ held at Page 669 that: “In my opinion the power to stay execution of its own judgment pending some further proceeding in the case, where the interests of Justice require it, is inherent in a Court of record, and is therefore vested in the High Court by the Constitution…” To the applicants, taking this point to a higher level and extending the principle of the law to also cover both the granting of an injunction in favour of an unsuccessful Plaintiff even though it is not the case here, the Supreme Court, in a comprehensive judgment, laid down novel principles of law to the effect that a Court of Law, has jurisdiction to grant an injunction in favour of a Plaintiff who even lost his case at the trial court, restraining the Defendants, from relying on the Judgment, and/or preserving the res pending the hearing and determination of an appeal. This principle was also aptly propounded and crystallized by the Supreme Court in Shodeinde v. Registered Trustees of the Ahmadiyya Movement-in-Islam 1980 1-2 SC 163. In that case while upholding this principle, Idigbe JSC at pages 181-185 noted that: “I find it difficult, to subscribe to the view that a Court becomes stripped of its jurisdiction to control the proceedings to the extent of preserving the subject matter of litigation, should it become necessary to do so, as soon as the court dismisses the proceedings before it. An application for an injunction to restrain proceedings or actions under Judgment under appeal pending the determination of the appeal appears to me to be an original motion which the court whose judgment is under appeal can entertain. …with great respect to all contrary opinion, even though the judgment has been taken out and entered, there remains the power to preserve the res – it is not in any way changing or altering the judgment, it is merely a preservative order from time immemorial exercised by all the courts. I would, therefore, like to conclude this judgment by making it quite clear that the High Court does not lose its jurisdiction to entertain application for stay of proceedings or actions under its judgment orders or decisions under appeal to the court of appeal because by the said order, decision or judgment it had dismissed the claim before it “absolutely” (i.e. without reservation); and it make no difference (1) that the applicant, in the circumstances, is the plaintiff who lost his claim or (2) that his application is couched in the form of request for an order of injunction and (3) in any event, that the decision, order or judgment in question (i.e. on appeal) has been drawn up and entered.” (emphasis supplied) The applicants submitted that based on these two judgments, this Court has the undoubted, unqualified and unimpeached jurisdiction to hear this application. And urged this court to so hold in deference to the time long principle of judicial precedents, and further urge that this issue be resolved in favour of the Applicants. On Issue two, the applicants contended that from the affidavit attached to the Motion on Notice filed on November 26, 2010, there are paragraphs to support the granting of the application sought for by this Court. That the Applicants have made germane averments to the effect that if this application is not granted they would suffer irreparable harm as the appeal to the Court of Appeal will be rendered nugatory and they will be denied of the right of exercising their constitutional right of appeal as guaranteed by Section 241 of the 1999 Constitution and their statutory right of appeal as guaranteed by Section 9 of the National Industrial Court Act 2006. The applicants referred us to paragraphs 12, 13, 14, 16 and 17 of the supporting affidavit which stated that: 12. I know and verily believe that unless proceedings in this Court are stayed, the outcome of the appeal will be rendered nugatory. 13. I know and verily believe that the Defendants/Appellants/Applicants will suffer irreparable loss and damage if this application is refused. 14. I know and verily believe that unless this application is granted, there will be no appeal for the Court of Appeal to adjudicate over and the Court of Appeal will be placed in a state of complete helplessness. 16. I know and verily believe that further proceedings will paralyze Appellants right to appeal and further proceedings will prevent a return to status quo if the appeal ultimately succeeds. 17. I know and verily believe that a refusal of a grant of stay of further proceedings will meet with an empty judgment if successful on appeal. To the applicants, the position of the law in this matter is lucid and axiomatic. It is to the effect that if the judgment deprives the Applicants of his right to prosecute the appeal, an application for injunction and/or stay of execution and/or stay of further proceedings should be granted as a matter of course. That in Enabulele v. Agbonlahor (1994) 5 NWLR (Part 342) 112 at page 121 paras D-F, Ogebe JCA (as he then was) held that: “Such special circumstances have been held to exist where execution would … paralyze, in one way or the other the exercise of the grant of his constitutional right of appeal.” We were also referred to the cases of Nwabueze v. Nwosu (1988) 4 NWLR Part 58) 257 at 27 paras A-D per Nnamani JSC of blessed memory, and Attorney General of Ondo State v. Daramola (2010) 9 NWLR (Part 673) 613, at 622 paras G-H. To the Applicants they have shown from the above that there exist special circumstances for granting this application in order for them to exercise their constitutional and statutory rights of appeal without restriction or extinction. Also that the Issue of jurisdiction raised in the Notice of Appeal dated and filed November 25, 2010 constitutes special circumstance. In addition, that the Notice of Appeal dated and filed November 25, 2010 that is, Exhibit “mee1a”, attached to the application, reveals that the grounds raise substantial points of law that are recondite including the issue of jurisdiction as encapsulated in grounds 1, 2 and 3 of the said Notice of Appeal. To the applicants, while not attempting to argue the appeal, nevertheless hasten to reiterate that where a ground of appeal raises the issue of jurisdiction, it is advisable for the Court to grant a stay of execution or further proceedings as in this case. Referring to the case of Martins v. Niccanar Food Co. Ltd. (1988) 2 NWLR (Part 74) 75 at page 89 paras A-D wherein Nnaemeka-Agu JSC laid down the law as follows that: “I am clearly of the view that where an appellant has exercised his constitutional right of appeal against a judgment of a lower court, and the appeal genuinely raises a substantial issue as to the jurisdiction of the court below, there exists a special circumstance for which the court below or the appellate court could, and ought to, grant a stay of execution. This must be the case on the premises that if the issue of jurisdiction is upheld in appellant’s favour, the judgment will be instantly reduced into complete nullity. If a stay was not granted and the res in litigation was disposed of before the judgment on appeal, an irreversible situation arising from a void judgment shall have resulted. This is, to say the least, undesirable. It appears to me therefore that a special circumstance which makes it necessary that a stay of execution should be granted in this case is the need to avoid a situation in which the res shall have been disposed of on the basis of a judgment which may turn out to be void. This will result in injustice to the appellant in the event of his appeal succeeding.” (emphasis supplied) Also that, from the grounds of appeal filed in this matter, grounds 1, 2 and 3 raise the serious issues of jurisdiction which translates to special circumstances warranting the granting of this application. We were also referred to paragraphs 10, 12, 13, 14, 16, 17 and 18 of the supporting affidavit. The applicant also submitted that the Issue of Breach of Fair Hearing Constitute Good Arguable Point of Law. That it is also to be emphasized that the complaint in the Notice of Appeal relating to a breach of fair hearing as encapsulated in grounds 5 and 6 is an arguable point of law like jurisdiction which is regarded as a special circumstance justifying the grant of stay of execution and in this case a stay of further proceedings pending appeal. That as a matter of fact Section 9 (2) of the National Industrial Court Act 2006 posits that an appeal shall lie as of right on questions of fundamental rights as contained in the Constitution of the Federal Republic of Nigeria 1999. Thus, in Racol Clinic & Maternity Hospital v. S.F.I. Co. Ltd (1999) 7 NWLR (Part 612) 613 at page 620 paras C-E, Nzeako JCA held that: “Applying these principles to the matter in hand, there is an appeal. The Appellants complain therein that when the trial Judge refused its application for adjournment sought because the principal Counsel to handle the case was in the Supreme Court, it simply dismissed the applicant’s motion without calling on the Junior Counsel who was in Court to proceed, it would seem to me that that could be a complaint about fair hearing, a breach of the applicant’s constitutional right. There would thus be an arguable point of law.” (emphasis supplied) That the remaining ground also raise very serious constitutional issues that necessitate the granting of this application and/or preserving the status quo to enable the Applicants accentuate their constitutional and statutory rights of appeal without impairment or any restrictions whatsoever. Also that from their affidavit evidence especially paragraphs 12, 13, 14, 16, 17 and 18 the Appellants/Applicants have deposed copiously to the effect that if this application is not granted they will suffer irreparable harm if the Court of Appeal rules in their favour subsequently by which time the Judgment of the appellate Court would have been rendered nugatory. Above all, that the Court of Appeal will be faced with a state of fait accompli or complete helplessness and its Judgment will be merely academic, if in the likely events it finds out that this Court in the first place lacks the jurisdiction to hear the matter ab initio. That the Applicants from their affidavit, also satisfied several conditions required for granting of a stay of further proceedings. Other special circumstances which the Applicants have lucidly satisfied by several paragraphs in their said affidavit in support of the application and recognized by the Court include the fact that: If this application is not granted it will (a) Destroy the subject matter of the proceedings (b) Foist upon the appellate court a situation of complete helplessness or (c) Paralyze, in one way or the other, the exercise by the litigants of their constitutional and statutory rights to appeal; or (d) Generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the appellate court, there could be no return to the status quo. The applicant in conclusion submitted that indeed, the granting of an order for a stay of further proceedings is discretionary, but urged the court to exercise its discretion in favour of the Applicants in view of the totality of the compelling affidavit evidence herein as well as the list of binding authorities and the surrounding circumstances of this case. ISSUES FOR DETERMINATION Opposing the application, the claimant respondent in its written address raised one issue for determination – (a) Whether this Honourable Court has jurisdiction to entertain this application, The claimant submitted that several factors militate against the grant of this application. Firstly, that the main ground which spells the death knell for Applicants motion is the incompetence and or invalid nature of the Notice of Appeal filed by Applicants are exhibits “Mee1” and “Mee1a”. That application pending appeal like stay of proceedings as in this instance presupposes the existence of a valid or competent appeal. That in Mobil Oil Ltd V. Agadaigho (1988) 2 NWLR (Pt 77) Pg 383 @ 395 para A-B, the Supreme Court held that before an application for stay can be competent, an appeal from the decision sought to be stayed must first of all be filed by the party applying for stay. That the Court held further that stay will not be granted where the appeal is patently incompetent as where an appeal is filed without leave where leave is required. That in Okoyekwu V. Okoye (2001) 6 NWLR (Pt 37) pg 350 @ 377-379 para F-H, the Court held that “Firstly, an application for stay of proceedings presupposes that there is an appeal which prima facie must be competent and not shadow or phantom orchestrated to gain advantage.” That failure to obtain leave to file a Notice of Appeal where leave is required goes to jurisdiction citing Ogheche V. Onochie (1986) 7 NWLR (PT 23) Pg 483 @ 491 PARA F, 494 PARA F-G. That there is no general right of Appeal. Also that a party cannot appeal against the decision of any Court unless there is a statute creating such right of Appeal. A right of Appeal is not discretionary or a product of the common law citing Adigun V. A.G. Oyo State (1987) 9 NWLR (Pt 56) 197 @ 232. That the only Act of the National Assembly which governs appeals and confers a right of appeal on the Applicant from the decision of the National Industrial Court is the National Industrial Court Act 2006 and Section 9(1) and (2) of that Act provides as follows: “9(1) subject to the provisions of the constitution of the Federal Republic of Nigeria 1999 and subsection (2) of this section, no appeal shall lie from the decisions of the Court to the Court of Appeal or any other Court excepts as may be prescribed by this Act or any other Act of the National Assembly.” “(2) An Appeal from the decision of the Court shall lie only as of right to the Court of Appeal only on questions of fundamental rights as contained in chapter IV of the Constitution of the Federal Republic of Nigeria 1999.” That Section 9(1) of the National Industrial Court Act 2006 is made “subject to” the 1999 Constitution. That this phrase where it appears in any statute operates as a condition, proviso, limitation or restriction. This indicates that whatever is being said is dependent on what has been said or what is to be said later. That in Ezenwosu V. Ngonadi (1992) 3 NWLR Pt 228 pg 154 @ 173, the Court held that the phrase “subject to” is a usual provision used to subject statute, be it substantive or adjectival to the provisions of a master enactment. That in Tukur V. Govt of Gongola State (1989) 4 NWLR Pt 117 @ 517, Obaseki JSC held in interpreting section 42(2) of the 1979 Constitution that the expression “subject to” the provisions of the constitution means that the jurisdiction conferred is controlled by other provisions of the Constitution. Thus, a clear demarcation is established by S.9 (1) of National Industrial Court between the rights of Appeal conferred by it in relation to the National Industrial Court and those of the 1999 Constitution in relation to rights of Appeal. Claimant submit further that a cursory look at exhibits “Mee1” and “Mee1a” attached to the affidavits in support does not disclose a breach of any of the rights contained in Chapter IV of the 1999 Constitution (as amended). Further that the right of Appeal AS OF RIGHT guaranteed by Section 9(2) of the National Industrial Court Act 2006 is reserved for an Appellant who is in pursuit of his Fundamental Rights under Chapter IV of the 1999 Constitution (as amended) or whose personal liberty is in issue in the decision of this Court being appealed against. That the Applicant is not complaining of any breach of their Fundamental Rights in Chapter IV of the 1999 Constitution or other personal liberty. The mere fact that reference was made by Applicants to deprivation of their constitutionally guaranteed right to fair hearing in Grounds 2, 3, 5 and 6 of the exhibited notice of appeal does not make the ground to come within Chapter IV of the 1999 constitution (as amended) as non of the particulars supporting the grounds discloses a right to fair hearing in the nature guaranteed under chapter IV of the 1999 constitution (as amended). Furthermore, that it is within the competence of this Court to apply the principles of law to determine the classification of a ground of appeal or put in another way whether the mere christening of a ground of Appeal as deprivation of fair hearing makes such ground to come within the cover of fundamental rights. Citing Ajayi V. Omorogbe (1993) 6 NWLR Pt 300 (pg 531) para A. That a right of Appeal is of two nature: a) Appeal as of right b) Appeal with leave of Court. That these two rights of appeal are also recognized in section 9(2) of the National Industrial Court Act, 2006. It provides that only an Appeal relating to Fundamental Rights can be lodged by an Appellant AS OF RIGHT. That the inference or conclusion to be drawn from the above provisions is that any appeal touching on a ground of Appeal that is not related to a Fundamental Right must be with leave of this Court or the Court of Appeal where leave is refused by this Court. That leave ordinarily means “permission”. That leave to appeal is a statutorily mandatory condition before Applicants can file exhibit “Mee1” and “Mee1a” which subject matter does not relate to Fundamental Rights. Leave thus becomes a condition precedent to the exercise of the right of Appeal. To the claimant, until leave is sought and obtained, the right of Appeal created by Section 9 of the National Industrial Court Act 2006 cannot operate in Applicants favour. In Odunze V. Nwosu (2007) 13 NWLR PT 1050 PG 28 PARAS D-G, the Court held as follows: A Notice of Appeal being an initiating process in every appeal process is so crucial in the appeal process, as a writ of summons is in ordinary civil action… Once the Notice of Appeal in vitiated in anyway, the appeal becomes incompetent and liable to be struck out. Where a Notice of Appeal as in the instant case is defective or incompetent in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but to strike it out”. That since the application for stay is premised on the existence of an appeal and the appeal is invalid and or incompetent, this application has no foundation upon which to stand. An application for stay cannot stand on a non existent appeal. Appeal which is incompetent is no appeal. Refering to BWAI v. UBA PLC (2002) 4 NWLR PT 758 PG 713 PARA F-G. Where the Court cited with approval at pg 713 para B the case of Adio V. A.G Oyo State (1990) 7 NWLR (pt 163) 448 where the Court held thus: “Since the Applicants did not obtain leave before filing the original grounds of Appeal, the grounds are incompetent. Applicant cannot build on nothing”. That this Court in Suit No: NIC/4/2000, Mix & Bake Flour Mill Ltd V. National Union of Food, Beverages & Tobacco Enterprises (NUFBTE) delivered judgment in that Suit on 2/4/2004. The Appellant brought an application for stay of execution. On 14/6/2005, a panel of this Court presided over by the President of this Honourable Court, Justice Adejumo held as follows: “Appeals are not permitted in respect of decisions of the National Industrial Court except for of Fundamental Rights. This is by virtue of Decree 44 of 1999 which amends section 20 of the Trade Dispute Act Cap 432, Law of the Federation of Nigeria 1990. What this means is that a party seeking stay of execution of judgment at the Court must convince the Court that the appeal lodged at the Court of Appeal relates in fact to a breach of his Fundamental Rights. In the instant case, the Notice of Appeal did not disclose in substance that the Fundamental Rights of the Applicant has been breached. Application for stay refused. That section 9(2) of the National Industrial Court Act 2006, does not restrict Appeals that are not related to Fundamental Rights but mandatorily requires Appellant to appeal As Of RIGHT ONLY in relation to complaints touching on breach of fundamental rights covered by Chapter IV of the 1999 Constitution (as amended). That all other rights of Appeal outside Chapter IV of the 1999 Constitution must be with leave. That the Applicants have failed to obtain leave, and so the motion for stay is incompetent. To the claimant, the purported Notice of appeal marked exhibit “Mee1” and “Mee1a” states clearly that the Appeal is against a ruling delivered by this Court on 18/11/2010. That the ruling is an interlocutory ruling and the purported appeal therefrom is also an interlocutory appeal. That the purported notice of appeal set out 6 grounds of appeal. A perusal of the grounds of Appeal shows that none of the grounds falls within the fundamental rights in Chapter IV of the 1999 Constitution (as amended) so as to enable Applicants to Appeal as of Right by virtue of section 9(2), of the National Industrial Act. That the grounds filed by the Applicants therefore relates to the specie of grounds of Appeal for which leave is anticipated by section 9(2) of the National Industrial Act, 2006. The grounds are not even the type of grounds contemplated by section 241 of the 1999 Constitution (as amended) from which applicant claim to derive a constitutional right of Appeal but on grounds covered by section 242 (1) which are grounds of mixed law and facts. The claimant submitted further that the Applicants have in grounds 1, 2 and 3 of exhibit Mee1 and Mee1a deliberately and mischievously refused to acknowledge the express conferment of jurisdiction in Trade Union matters in this Court. Applicants by this application seek to achieve the aim set out in paragraph 6 of the Respondents Counter Affidavit. That this Court must resist such attempt. That in Bamaiyi V. State (supra) @ pg 63 para D-E, the Court stated: “That the issue of jurisdiction is a fundamental and crucial one is never in doubt. Where the issue of jurisdiction forms the basis of the appeal upon which an application for stay hinges, there comes an almost irresistible temptation to grant the order being canvassed. Grounds of Appeal in such situations are conceded to be raising substantial and arguable issues such that the effort to stay proceedings passes the first hurdle by virtue of the said ground. See Kotoye V. Saraki (1993) 5 NWLR (pt 296) 710. Where, however interlocutory appeals involve unnecessary delay over issues which can as well be taken after the final decision and without any parties thereto made a victim of the effect of the avoidable delay for which the pursuit of interlocutory right of appeal is well known for.” At pg 63 para C, the Court held “Where the appeal upon which an application for stay of proceedings is anchored is an interlocutory one, as in the instant case, the Courts have persistently remained hesitant in granting stay on the basis of such appeal, … although applicants has by involving the right of appeal against the lower Court’s interlocutory order, exercised a legitimate options such a right has to be curtailed where in its enjoyment, the applicant would trample on the rights of others”. In conclusion, the claimant submitted that on the facts and the law this application lacks merit as this Court lacks jurisdiction to entertain it as – 1) There is no valid Notice of Appeal upon which an application for stay of proceedings can be founded. 2) The grounds of Appeal filed by Applicants not being matter within the fundamental Rights guaranteed in chapter V of this 1999 Constitution requires leave of this Court and same has not been sought and obtained before Applicant filed the Notice of Appeal. 3) The Records of Appeal allegedly compiled by Applicants is totally defective as the Ruling of this Court appealed against is not part of the Records. 4) The special circumstances relied upon by Applicants is the transmission of the Records of Appeal to the Court of Appeal which transmission is incompetent as Applicant did not seek leave of this Court to transmit the said Records. The Claimant then urged this Court to strike out this application as it is incompetent and lacks merit. In reply on points of law, the applicant submitted that while it concedes, that the absence of a valid and competent appeal knocks off the bottom of an application for stay of further proceedings, however state that ex facie an appeal has been filed via the lodging of a Notice of Appeal and the only Court that can pronounce on the validity or otherwise and competence or otherwise of the appeal so lodged is the higher Court which the said appeal lies to. That the said Notice of Appeal not being a document of this Court, its validity or otherwise can only legally be pronounced upon by the Court of Appeal. The applicant urged the Court therefore to discountenance Respondents’ Counsel argument on this point as the authorities cited by Respondents’ Counsel are inapplicable here as in all those cases referred to by Respondents’ Counsel it was the higher Court that the appeal lay to and not the lower Court that the appeal arose from that pronounced on the validity of the appeal. On the submission by the claimant that the records of appeal is incomplete, the applicant replied that, ex facie the records of appeal as compiled by the appellant are sufficient for the purposes of the appeal and for the purposes of this application and so urged this court to discountenance the claimant’s submission. We have carefully gone through the written addresses of both parties in respect of this application and all the authorities cited. This court delivered a ruling on the 18th November, 2010 on a preliminary objection filed by the respondent/applicant wherein this court dismissed the said preliminary objection of the applicant and assumed jurisdiction to hear this matter. The applicant/defendant dissatisfied with the said ruling filed an application in this court dated 25th November, 2010 and filed on 26th November, 2010 praying for an order staying further proceedings in this court pending the hearing and determination of the said appeal at the Court of Appeal. The issue in dispute is an intra union dispute relating to elections and tenures of offices in which the applicant argued in its preliminary objection that this court has no original jurisdiction on the matter. An issue which this court dismissed. The applicant in this application has urged this court to grant a stay of proceedings. The respondent on the other hand has opposed the motion for stay of proceedings arguing that this court should not grant the stay as there is no pending appeal. Having gone through all the authorities cited by the applicant, one thing is common that is there must be a valid appeal to warrant a stay of proceedings. All the authorities cited agree that before a stay of proceedings can be granted, there must be a pending appeal which is valid. A mere application for leave to appeal without more cannot ground a stay of proceedings. See Ochor v. Ojo & Others (2008) 13 NWLR (pt. 1105) 524, Nika Fishing Co. Ltd v. Lavina Corp. (2008) 16 NWLR (pt 1114) 5-9, FRN v. Abacha (2008) 5 NWLR (pt. 1081) 635 and this Court’s ruling in Abdul Shaibu v. Noble Drilling (Nigeria) Ltd, Suit No. NIC/LA/09/2009 a ruling delivered on 13th January, 2011. Regarding this case, there is yet no substantive appeal at the Court of Appeal. What is exhibited is just a notice of appeal which is a mere intention to appeal. There is yet no evidence that the appeal has been entered, there is no appeal number nor a hearing date from the Court of Appeal as the case may be. Also, the applicant has not disclosed any special circumstances to warrant a stay. The applicant has an opportunity its defence at a proper trial. The applicant has also not shown what harm will occasion them if stay is not granted. In any event the applicants are the ones presently occupying the office which is the subject matter of this suit. The Balance of convenience, courts are enjoined to take into account the competing rights of the parties to justice. It is our considered view that if stayed, it is the claimant that will suffer greater hardship given that the offices are presently still being occupied by the Respondent/Applicant that is seeking for a stay for as long as the appeal last. In our considered view, the applicant/respondent will not suffer any injustice if the proceedings proceeds as they are the ones in office. The applicants are the ones who are in possession of the res that is the disputed offices in this case. It is our view that the purpose of this application is to delay and unnecessarily prolong the proceedings so that the applicants can continue to enjoy the disputed offices which they are already occupying and also to waste the time and energy of the court. We therefore hold that there is no appeal pending against the ruling of this court delivered on 18th November, 2010 both in law and in fact and therefore nothing to stay. This application lacks merit and is hereby dismissed. The matter shall proceed to hearing. Ruling is entered accordingly. ……………………………….. Hon. Justice F. I. Kola-Olalere Presiding Judge …………………………………….... .…………………………………. Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge