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NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date:25TH SEPTEMBER, 2014 Suit No. NICN/ABJ/55/2013 BETWEEN e – BARCS MICROFINANCE BANK LIMITED CLAIMANT AND 1. UKONU CHIKA GOODNESS 2. EKEADA IHUOMA KENTIKA DEFENDANTS 3. KINGSLEY AMAFIBE REPRESENTATION Victor Edem Esq for the Claimant. Olajide Owonla Esq for the 2nd Defendant. RULING The 2nd Defendant/Applicant brought a Motion on Notice under Order 30 Rule 1 of the National Industrial Court Rules 2007 and under the inherent jurisdiction of the court seeking for the following reliefs:- 1. An Order of this court staying proceeding in this suit before this Honourable Court pending the hearing and determination of the interlocutory appeal filed by the 2nd defendant/applicant challenging the Ruling of this court delivered on the 4th day of March, 2014. 2. And other Order or further Order as the court may deem fit to make in the circumstances of this case. The Motion is supported by a 4 paragraph affidavit deposed to Sunday Ategwu a Litigation Secretary in the law firm of Olajide Owonla & Co Solicitor to the 2nd defendant/applicant in this suit, with a written address. In response to the Motion on Notice for stay of proceedings the Claimant/Respondent filed a reply on point of law dated 20th May, 2014 and filed on 3rd July, 2014. On the 5th of June, 2014, the Applicant moved the Motion. The Applicant raised a lone issue for determination which is:- Whether having regard to the facts deposed in the Affidavit in support of this application, the Honourable Court can exercise her discretion in favour of the 2nd Defendant/Applicant and grant the application for stay of proceeding pending determination of the Interlocutory appeal. In arguing this Motion the learned for the Applicant submitted that it must be conceded that an order for stay of proceedings is not granted as a matter of course, but upon special, exceptional and compelling circumstances. It is also conceded that this type of application is not granted as a matter of cause or right but on the discretionary power of the court. See SOYANWO V AKINYEMI (2001) 8 NWLR (PT. 714) 95 AT 120. That in considering whether the court’s discretion should be exercised in favour of the 2nd Defendant/Applicant, the court will look at the factual circumstance of the case. See MICRO-LION INTERNAITONAL LTD V GADZAMA (2009) 15 NWLR (PT. 1162) 481 AT 487. The facts of this application are as enshrined in the Affidavit in support of this application. The learned counsel submitted the position of the law is that the court will favourably consider the application for stay of proceedings in a case where the continuation of this proceedings will destroy the subject matter or will foist upon the Court of Appeal a situation of helplessness on the court or will paralyse in one way or the other the Applicant’s constitutional right or render nugatory any order that the Court of Appeal could make on the matter or that the appeal has great merit and that to continue the proceedings in the meantime will be ruinous to the Applicant. See OLUNLOYE V ADENIRAN (2001) 14 NWLR (PT. 734) 699. He submitted that having regard to the Affidavit filed along with this application, the application has met most if not all of this pre-conditions. Counsel referred the Honourable Court to the provisions of Section 24 of the Court of Appeal Act (2010 Amendments) and to the provisions of Section 243(3) of the Constitution of the Federal Republic of Nigeria 1999 (as Amendment). He urged the Honourable Court to grant our application. The learned counsel for the claimant/respondent also responded formulated a sole issue for the court to determine to wit:- Whether the application is meritorious of the discretionary powers of the court being exercised in favour of granting it? The learned counsel submitted that it is settled law that an application of this calibre is not granted to a party seeking same as of right but on the discretion of the court. Such discretion, like every other discretion, is to be exercised judiciously and judicially. To merit the discretion of the court, the party seeking same must show special, exceptional and compelling circumstances why the application should be granted. See Soyanwo V Akinyemi (2001) 8 NWLR (Pt. 714) 95. Counsel submitted further that in order to consider an application for a stay of proceedings pending appeal, there must be a pending appeal which must be valid. A mere application for leave to appeal without a valid appeal cannot grant 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; and FRN V Abacha (2008) 5 NWLR (Pt. 1081) 635. That in the instant case, the Applicant only has a pending application for leave to appeal and a proposed Notice of Appeal. He therefore submitted that the instant case is clearly one of a mere application for leave to appeal without a valid appeal pending at the Court of Appeal and so cannot be used for a stay of proceedings of this Honourable Court. In conclusion counsel contended that the Applicant has failed woefully to disclose any special, exceptional or compelling circumstance for which her application should succeed. The Applicant does not have a valid appeal pending before the Court of Appeal. What is pending there is a mere application for leave to appeal. He accordingly urged the court to dismiss the application with cost in the interest of justice. Having considered the submissions of counsel, the issue for the court to determine is whether the relief sought by the 3rd defendant/applicant can be granted. The exercise of jurisdiction to stay or refuse to stay proceedings, its simply a matter of discretion. It depends on all the facts and circumstances of each case. Some of the guiding principles laid down by the courts in granting or refusing stay of proceedings include the followings:- 1. There must be a valid and competent pending appeal. Where there is no competent pending appeal there is both in law and in fact nothing to stay. The court will therefore not consider an application for stay of proceedings in respect of an invalid appeal. See Olawunmi & Ors V Alhaji Mohammed & Ors (1991) 4 NWLR (Pt. 186) 576. Where an appeal is filed out of time as in this case, it is incompetent and therefore invalid. A court of law will not consider an application for stay in respect of an incompetent or invalid appeal – National Bank Nigeria Ltd V NET (1980) 3 NWLR (Pt. 31) 667. 2. The application for stay will be granted where special and exceptional circumstances exist. This is a unique or exceptional which is additional to the ordinary state of affairs. 3. The court will consider the competing rights of both applicant and the respondent to justice. 4. The court of law will be most reluctant to grant an application for stay of proceedings if it will cause greater hardship than if the application is refused. The question of hardship is a matter of fact which can be decided from the competing affidavit evidence. 5. The pending appeal must be arguable. This is decided by considering the grounds of appeal filed. 6. The court of law will grant stay of proceedings in order to preserve the res for the response of ensuring that the appeal if successfully not rendered nugatory where the issue of jurisdiction is involved in the pending appeal the court should grant an application for stay of proceedings. 7. Where an application for stay will unnecessarily delay and prolong proceedings it will not be granted. 8. The court has a discretionary power to exercise in a matter and it must be exercised judicially and judiciously. It is worthy of note that there is no competent appeal filed by the 2nd defendant/applicant on which to hinge the present application for stay of proceedings. The application before the Court of Appeal is a Proposed Notice of Appeal in which the applicant is seeking the leave to appeal against the Ruling of this court delivered on the 25th of September, 2013. There is no guarantee that the application of the 2nd defendant/applicant for leave to appeal will be granted by the Court of Appeal. In fact there is nothing before this court to stay. In the case of Amadi V NNPC (2000) 6 SC (Pt. 1) Pg. 66; the Supreme Court observed the delay of interlocutory appeal to the substantive suit and directed that a point of jurisdiction should not be taken in the course of proceedings. That any aggrieved party can appeal on both issue of jurisdiction and the Judgment on merit in the proceedings. The reasoning of the Supreme Court on this issue is very sound being that interlocutory appeals course unnecessary delay. The Supreme Court said that the counsel owed it a duty to have reduced the period of delay in determining cases in our court by avoiding unnecessary preliminary objection so that the adage justice delayed is justice denied may cease to apply to the proceedings in our court. A court will not be swayed by mere reason of jurisdiction to fold its hand and grant stay of proceedings. This will be granted where the court is fully satisfied and convinced that there is really a genuine issue of jurisdiction involved in the matter sought to be stayed. In the instant case, there is no doubt that there is no genuine issue of jurisdiction raised. I must say also that the applicant has not shown special and exceptional circumstance supporting the application to justify the grant of the application. Finally, the issue of jurisdiction can be raised at any stage of the proceedings even in appeal. It is also in the view of the court that after considering the competing rights of parties the grant of stay of proceedings will cause greater hardship than if the application is refused and so the court is reluctant to grant the application for stay. The question of hardship is a matter of fact which can be deduced from the competing affidavit evidence. In the instant case, the claimant will suffer greater hardship if the stay of proceedings is granted as it will prolong the matter, it is important that the matter be heard and dispensed with immediately. In the circumstance therefore, the application of the 2nd defendant/applicant for stay of proceedings fails and is hereby dismissed. The matter will proceeds to hearing. Ruling is entered accordingly. _______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE