3PLR – DANTATA & SAWOE CONSTRUCTION COMPANY LIMITED V. EGBE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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[BASED ON POLICY, PRACTICE AND PUBLISHING LAW REPORT, 3PLR, PROTOCOLS]
DANTATA & SAWOE CONSTRUCTION COMPANY LIMITED
V.
EGBE
COURT OF APPEAL
CA/K/207/M/92
WEDNESDAY 24TH FEBRUARY, 1993
3PLR/1993/38 (CA)
OTHER CITATIONS
4 NWLR (Pt. 287) 235
BEFORE THEIR LORDSHIPS:
OKAY ACHlKE J.C.A.(Presided)
MURITALA AREMU OKUNOLA J.C.A. (Read the Leading Ruling)
MAHMUD MOHAMMED J.C.A
REPRESENTATION
Victor Enenigi – for the Applicant
Eze Gabriedl Emelogu for the Respondent.
MAIN ISSUES
TORT AND PERSONAL INJURY LAW
HEALTHCARE AND LAW
PRACTICE AND PROCEDURE
– Stay of proceedings
– Legal rights of parties
MAIN JUDGMENT
MURITALA AREMU OKUNOLA [Delivering the Leading Judgement]
The appellant/Applicant herein Messrs. Dantata & Sawoe Construction Co (Nig) Ltd filed an application in this court dated 2nd October 1992 seeking the following orders:
- For extension of time within which to apply to stay proceedings in Suit No K/122/82 pending before Hon Justice Umaru alkali of the Kano State High Court.
- That all further proceedings in suit No K/122/82 pending before Kano State High Court presided over by Hon Justice Umaru Alkali be stayed pending the determination of the appeal filed by the appellant to the Court of Appeal.
- For such further or other order(s) as this court may deem fit.
The motion is supported by a three paragraph affidavit sworn to by one Peter Atoyebi, a litigation officer in the firm of Messrs. J B Majiyagbe, the appellant/applicant counsel Mr. Victor Enenigine relief on all the paragraphs of the appellant particularly paragraph 2(a) -(t) thereof. I shall set out the paragraph 2 of the said affidavit which read as follows:-
(a) That the respondent instituted this action against the appellant for damages for negligence.
(b) That both appellant and respondent filed and exchanged pleadings.
(c) That the respondent called P W 2 to testify as an expert on injuries he sustained while operating a boiler.
(d) That the dispute between the parties centres on the injuries allegedly suffered by the respondent.
(e) That P W 2 who was not an expert on burns, keloides, dermatology and plastic surgery testified on the injuries alleged.
(f) That it is necessary for the appellant to call an expert to testify on the injuries allegedly suffered by the respondent if they are to disprove negligence which the respondent alleges against them,.
(g) That the testimony of P W 2 was such that expert medical evidence was necessary to disprove it.
(h) That the appellant made several attempts to get a medical doctor without success.
(i) That as soon as a medical doctor who could testify was found the appellant sought leave of court to lead the medical doctor in evidence in defence to the respondent’s case.
(j) The court ruled against the appellants application for leave to lead the doctor in evidence and defend the suit. A copy of the ruling of 10/7/92 is shown to me marked Exhibit PA1.
(k) That the appellant appealed against the ruling of the High Court to the Court of Appeal. A copy of the application is shown to me marked Exhibit PA2.
(L) That the appellant filed an application before the lower court for leave to appeal and stay of proceedings pending the determination of the appeal.
(m) That the lower court refused the appellant’s prayer for stay of proceedings but granted the prayer for leave to appeal.
a copy of the ruling of the Court is shown to me marked Exhibit PA3.
(n) That leave to appeal is necessary as more than 15 days have elapsed since the ruling delivered by the lower court refusing stay of proceedings on 23/7/92.
(o) That the applicant applied for a certified true copy of the ruling appealed against 29/7/92, a copy of the application is hereby shown to me marked Exhibit PA4.
(p) That the copy of the ruling of the lower court was only made available tote applicant on 25/8.92 is shown to me marked Exhibit PA5.
(q) That by the ruling of the lower court, the appellant has lost the right to defend this suit and to contest the respondent’s case.
(r) That if the prayer for stay of proceedings is not granted the res of the appeal (The Appellant’s) right to defend the suit would be destroyed as the lower court would proceed with hearing the suit and deliver judgment in the suit without hearing the appellant.
(s) That the lower court has adjourned the matter to 7/10/92 for addresses by both parties and will proceed with this suit without hearing the appellant in its defence unless restrained by this Honourable Court.
(t) That the respondent would not be prejudiced by this application.
To the motion paper are attached the Notice of Appeal, the Revenue Collector’s receipt and other documents all marked Exhibits PA2 & Pa5. The respondent has also filed a four paragraph counter affidavit. The appellant/applicant also relied on same. The learned counsel to the appellant/applicant Mr. Eneigin gave a brief outline of the events leading to the present application. According to him, in the court below, the plaintiff/respondent had closed its case and the defendant/appellant had not opened its case yet the court adjourned the case and the defendant/appellant had not opened its case yet the court adjourned the case for judgment. He brought an application for leave for the defendant/appellant to enter into their defence and this was refused.
Learned counsel to the appellant/applicant contended that it is against that refusal to enter into their defence that they have appealed to the court of Appeal. He averred that that application for stay in the lower court was refused vide Exhibit PA3 attached to the motion paper. He contended hat the application here was brought over 15 days after their refusal of the application for stay in the lower court hence their need for leave of the court of Appeal for extension of time to make the application which constitutes the 1st prayer in the application.
On prayer 2 for of proceedings learned counsel submitted that they are seeking the staying order to preserve the Res of this appeal and their right to defend the suit. He cited Kigo (Nig) Ltd v Holman Brothers (Nig) Ltd (1980) 5-7 C 60 (1980) NSCC Vol 12 204p 205.
Learned counsel referred to paragraph 2(1) of the counter affidavit to support his earlier brief outline of the event leading to this application. Paragraph 2(1) reads thus:
“That this suit was filed in 1982 and that the plaintiff closed his case on 11th day of July, 1989”.
Learned counsel further explained that the case was adjourned for the first time for defence to open on 12/10/89 after which it was finally adjourned to 22/3/80 when the lower court adjourned for addresses. He contended that in the interim they sought for the present application. Learned counsel cited. Adigun & Ors v A-G(Oyo State) (1987) 2 NWLR (pt 56) 197 (1987) 1 NSCC VOL 18 (pt 1) 346 p 348 lines 5 end and S 33(1) 1979 Constitution. Learned appellant/applicants counsel moved in terms of his application and urged the court to allow the application.
By way of reply, Mr. Emelogu learned counsel to the respondent opposed the application. In doing so he referred to the four paragraph counter affidavit sworn to by one. Thomas Otene, the litigation secretary in the respondent’s counsel’s chambers filed herein. Mr. Emelogu relied on all the paragraphs of the counter affidavit particularly paragraph 2 of the counter affidavit to show that the defence was given three different opportunities to make their defence and that they failed in all cases. It was then, according to learned counsel to the respondent that the case was adjourned for addresses. Plaintiff addressed the court on 18/9/91 and the defence counsel was to address on 18/12/91 However, the case was from then adjourned for four times at the instance of the defence for address but no address was forthcoming hence the court on 26/3/92 adjourned case for judgment. However, on 10/4/92 the defence again sought for leave to address which the court granted but instead of presenting their address the defence brought the present application for stay of proceedings in the court of appeal. For purpose of clarity, I shall set out the said paragraph 2 of the said counter affidavit. Paragraph 2 of the A counter affidavit reads as follows:-
“2. That Eze Gabrief Emelogu of Counsel has informed me of the following facts which I verily believed to be true as follows:-
(i) That this suit was filed in 1982 and that the plaintiff closed his case on the 11th day of July, 1989.
(ii) That the Hon. Judge before whom the matter was pending was retired, and the case had to wait till another Judge was appointed to take it.
(iii) That at the close of plaintiff case on 11/7/89 the case was fixed for defence to the 12/10/89.
(iv) That on the said 12/10/89 the defence was not in court and so the case was adjourned to the 5/10/89
(v) That on 5/12/89 the defence was not ready and the matter was adjourned to 28/3/90 for defence and the Court made that the last adjournment.
(vi) That as the defence was still not ready on 22/3/90 the Honourable Court adjourned the case for addresses to the 4/9/90 the defence having lost three chances to defend the suit.
(vii) That plaintiff’s counsel, Eze Gabriel Emelogu addressee the court on the 18/12/91.
(viii) That on the said 18/12/91 the defence was not ready and the case was adjourned to the 20/1/92 for their Reply.
(ix) That fresh hearing Notice was served on the defence counsel for them to come and address court on 10/2/92 and still the defence did not turn up on 25/3/92. That this was four times the defence could have replied but failed.
(xi) That on 25/3/92 the case was fixed for Judgemnt.
(xii) That on the 10/4/92 the defence filed an application praying the court to allow the defence to address the court.
(xiii) That the plaintiff’s counsel did not oppose the application and the case was slated for addresses instead of Judgment to the 29/5/92.
(xiv) That by an application dated 25/5/92 the defence instead of coming to address the court applied to be allowed to call its defence.
(xv) That the Honourable Court found no merits in the application which was strongly opposed and so refused it.
- That Eze Gabriel Emelogu has further informed me and I verily believed him to be true as follows:-
(i) That in the appeal filed by the appellant, he is now asking for a stay of proceedings of this case which was filed in 1982 and asking that the matter be transferred to another Judge for trial.
(ii) That the appellant/applicant’s conduct in handling this mater lacks seriousness and constitutes a mockery of the judicial process.
(iii) That no reasonable trial court will grant the application to defend at this stage in the circumstances of this case.
(iv) That the appellant does not want this suit to come to an end.
(v) That the applicant has not shown that the trial court acted in any bad faith in refusing to grant them leave to defend judging from the circumstances of this case.
(vi) That the appellant has admitted that the case suffered several adjournments and to stop the proceedings now and order retrial before another Judge will further protract the limitation and badly prejudice the plaintiff/respondent.
(viii) That courts orders are not to be made in vain.
(ix) That it is not true that the defence was not given enough time to defend the suit but that the defence was in culpable default all through and are acting mala fides.
(x) That costs will not adequately compensate the plaintiff in view to the present application of the applicant for this case filed since 1982.
(xi) That the Honourable trial court has further adjourned this mater to the 7th day of December, 1992 and will proceed to Judgment if the applicant refuses to address in reply.
(xii) That the applicant may exercise his right of appeal after Judgment to the Court of Appeal in place of the present application of stay of proceedings and order for a transfer to another court.
Learned counsel to the respondent referred this court to the prayers in the present application and the reliefs sought in the notice of appeal filed herein. In the former, appellant/applicant is asking for stay and in the latter they are seeking for retrial in paragraph 4 of page 2 of the Notice. Counsel explained that the delay in trial was due to the retirement of a former Judge handling the case and the taking over by another judge which made hearing to commence in 1988.
On fair hearing, learned counsel to the respondent submitted that where a man is given three chances to defend and address and he refused in each case, can such a person complain of fair hearing? He said they failed in the affidavit to mention that they have been given three chances on each occasion. In the supporting affidavit, learned counsel asserted that the appellants have not shown why the case should be transferred to another court.
I have considered the affidavits and the counter affidavits for and against this application. I have also considered the addresses of counsel in this application. It appears that the main issue raised by both counsel is whether or not there is a special circumstance in this case to warrant the granting of the applicant’s prayer for stay of proceedings in this application. I shall examine this poser through the affidavit evidence, the submissions of the counsel on both sides and the prevailing law. To my mind the prevailing law has been settled by the Supreme Court in a number of cases. Being an exercise of judicial discretion, it is trite that the exercise of such discretion related to the granting or refusal of an application for stay of proceedings will depend on the peculiar facts of each case as presented to the judge who will take into account what the justice of the case demands. This principle applies to both the court from which an appeal lies and the one to which an appeal lies for both courts have a duty to preserve the res for the purpose of ensuring that the appeal if successful is not rendered nugatory. This principle of the law was succinctly summarised by the Supreme court in Kigo (Nig) Ltd v Holman Bross (Nig) Ltd & anor (1980) 5-7 S C 60; NSCC 204 p 209 lines 39 end and p 210 lines 1-4 per Eso JSC (as he then was) as follows:-
“When a party is appealing, and leave to appeal to this court has been granted him, either by the Federal Court of Appeal or this court, he possesses an undoubted right of appeal and this court has a duty to see that the appeal if successful, is not in vain (See Wilson v church (No 2) (1879-80) 12 Ch D 454 as per Cotton L J) That in my view, generally, constitutes an appropriate case for the court to exercise its jurisdiction. I have used the word generally advisedly, for there would be cases where to grant a stay would inflict greater hardship than it would avoid, notwithstanding the right of appeal in the applicant. There could also be cases where the appeal filed, even after leave has been obtained, is frivolous. Surely, in cases like these, it could not be said that the exercise of its jurisdiction by the court, seised of the appeal, would be appropriate. It follows, therefore, that though the court has jurisdiction to preserve the res, once the matter is on appeal, the exercise of the jurisdiction, being a matter of the discretion of the court, would depend on the facts and circumstances in each case. And this is more so for this Court, being the court of last recourse. For once this court is seised of the appeal it is in a good position to determine whether or not the appeal is frivolous, whether or not the circumstance is such that the exercise of its discretion in regard to granting a stay would cause greater hardship than none”.
It can be seen that the emphasis in the principle governing the exercise of jurisdiction or discretion for granting or refusing stay inherent both in the Kano High Court as well as this Court lies in the well known legal dictum that the Court does not act in vain thereby vesting in each of them the duty to preserve the res in action once an appeal was lodged against their decision. thus, it is clear that the Kano High Court could exercise its inherent power as soon as an appeal was filed against its decision as laid down by the Supreme Court in Y P O Shoedeinde & Ors v The Registered Trustees of Ahmadiya Movement in Islam (1980) 1-2SC 163 and the cases considered in that decisio to wit: Dada v Ogunremi (1962) 2 SCNLR 417; (1962) 1 ALL NLR 663; Vaswani Trading Co v Savalakh & Co (1972) All NLR (pt 2) 483; Wislon v Church (No 1(1879) 11 Ch D 576; Re Eninford Properties (1974) Ch 261; andler &Ors v Duke & Ors (1932) 3 Dom L `fsR 210
In my view the learned trial Judge was in error when he refused the appellant/applicant/s prayer for stay of proceedings in the court below.
It is appropriate at this juncture to examine the need or otherwise for the exercise of our jurisdiction to stay further proceedings in the instant case. It is clear that the gravamen of this case lies in the enforcement of the appellant/applicant’s right to defend the suit in the lower court. It is not denied by either party that if stay of proceedings is not granted in this case, the trial High Court will proceed with the matter and deliver judgment. It is my view that once judgment is delivered in the case the appellants right to defend the suit, a constitutional right which constitutes the Res in this case will have been destroyed. This court still has the power to preserve the res in this case As put by Mc Phillips J C A in Andler v Duke (1932) 3 DLR 210 p 220 which was approved in Shodeinde and Kigo’s cases supra,
“It is merely a preservative order from time immemorial exercised by all courts”.
To my mind, both e Kano High Court as well as this court have power once the appeal was filled here against the decision of the Kano High Court to grant stay of proceedings in the kano High Court if only to preserve the res and I so hold.
In the light of the foregoing authorities, I have no hesitation in coming to the conclusion that this is an appropriate case for this court to exercise its discretion in its undoubted jurisdiction to stay further proceedings. Consequently, pending the determination of the appeal filed herein, further proceedings in the action now pending before the Kano High Court shall be stayed.
Costs of N500 are hereby awarded in favour of the respondent against the applicant.
Achike and Mohammed JJCA concurred
{Nigerian Cases Referred to}
Dada v Ogunremi (1962) 2 SCNLR 417
Enekebe v Enekebe (1964) 1 All NLR 102
Holman Bros (Nig) Ltd v Kigo (Nig Ltd (1980) 5-7 S C 60
Shodeinde v Reg. Trustees of Ahmadiya Movement In Islam (1980) 1-2 SC 163.
