IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP, HON. JUSTICE A.A.I. BANJOKO JUDGE SUIT NO. FCT/HC/CV/1599/10 MOTION NO: FCT/HC/M/3716/10 FCT/H/G/15/M/75/10 BETWEEN: 1. WASUBI NIGERIA LIMITED PLAINTIFFS/RESPONDENTS 2. KOLA ABEJIDE & ASSOCIATES AND 1. PATHFINDERS GROUP. DEFENDANT 2. CHIEF JOHNNY IFEANYI UCHEAGA.... DEFENDANT/APPELANT/APPLICANT TOLU BABALAYE FOR THE PLAINTIFFS/RESPONDENTS CHIEF J. I. UCHAGA FOR THE 2 ND DEFENDANT RULING By way of Motion on Notice dated 14 th day of July 2010, which was filed on the same date, the Applicant is praying the Honourable Court for the following:- (1) An Order staying further proceedings in this case pending the determination of the Interlocutory Appeal filed by the 2 nd Defendant/Appellant/Applicant against the Ruling of this Honourable Court dated 29 th day of June 2010 dismissing the application of the 2 nd Defendant/Appellant/Applicant to have his name struck out from this case for not being a proper party in this case. (2) And for such further or other Orders as the Honourable Court may deem fit to make in the circumstance of this case. This application is supported by a five (5) paragraph affidavit deposed to by Benedetha Olah a Litigation Secretary in the Law Firm of the 2 nd Defendant/ 1
Applicant s Counsel, hereinafter called the applicant, and had attached two Exhibits marked Exhibits A and B and a Written Address which was dated the 14 th day of July 2010, filed on the same date. In opposition, the Plaintiff/Respondent, hereinafter called the respondent, filed a three (3) paragraph Counter Affidavit deposed to by one Toyin Adeyanju, a Litigation Secretary in the Law Firm of the Plaintiff s Counsel which had attached a Written Address dated the 30 th day of August 2010 and filed on the 1 st day of September 2010. In his Written Address Counsel to the Applicant formulated two issues for determination which are:- (1) Whether the Honourable Court has jurisdiction to stay proceedings in this case pending the Interlocutory Appeal (2) Whether the circumstance of this case warrants a stay of proceedings pending the Interlocutory Appeal. In arguing the first issue, Learned Counsel submitted that this Court has jurisdiction to stay the proceedings in this case pending the determination of the Appeal at the Court of Appeal. He stated further that if this Court refuses the Applicant this application, the Applicant can seek the stay of proceedings at the Court of Appeal and cited the case of EBOKA VS. EZEDEBE (1995) 3 NWLR (PART 384) @ 495. On the second issue raised, Learned Counsel set out the conditions upon which the Court must base its decision in the determination of this application. He stated that there must be a valid appeal against the decision and also that the appeal if successful, will dispose of the case. He further listed as conditions the issue of a challenge to jurisdiction, and the subject matter of the appeal and finally, whether the refusal to grant the application will prejudice the Applicant. Learned Counsel submitted that the applicant has filed a Notice of Appeal on three grounds of law against the decision of this Court dated the 29 th day of June 2010. He stated further that it is not the duty of the Court to determine the success or otherwise of the appeal but whether the appeal has been properly filed and that the grounds of Appeal are not merely frivolous. He relied on the case of UNITED SPINNERS LTD VS. CHARTERED BANK (2001) FWLR (PART 1) 143 RATIO 4. He contended further that an Interlocutory Appeal is filed with the leave of Court when the appeal is based on issues of facts alone and when based on issues of mixed law and fact. He stated that no leave of Court is required to file an appeal when the 2
appeal is based on the issues of law alone and relied on Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria and the case of METAL CONSTRUCTION (W.A) VS. MIGLIORE (1990) 1 NWLR (PART 126) 299 @ 315 PARAGRAPH B. Learned Counsel further argued that, the decision of this Court refusing the application of the 2 nd Defendant to have his name struck out in this matter was premised on the averment at paragraphs 4 (b), (d), (e) and (f) of the Statement of Claim of which no such averment exist in the Statement of Claim and that no such paragraphs as paragraphs 4(b), (d) (e) and (f) exist in the Statement of Claim. This is a serious error which undoubtedly forms a ground of law. He contended further that the Court has the duty to look at the pleadings filed by the Plaintiff to determine its jurisdiction and whether such jurisdiction is being challenged. He referred to the case of ADEYEMI VS. OPEYORI (1976) 9 10 SC 310 and submitted further that premised on the pleadings of the Plaintiff, the 2 nd Defendant has no case and the success of this appeal will determine the case of the 2 nd Defendant. Learned Counsel in his further submission stated that the critical issue in this case is the jurisdiction of the Court which is being challenged and which is premised on the non-issue of statutory notices to the 2 nd Defendant which robs the Court of its jurisdiction to entertain this case. He cited the cases of EKEJA VS. BANGUDU (1994) 3 NWLR (PART 334) PAGE 534 RATIO 3; MADUKOLU VS. NKEMDILIM (1962) ALL NLR (PART 4) 581; SULE VS. NIGERIA COTTON BOARD (1985) 2 NWLR (PART 5) 17 and EKPERE VS. AFORIJE (1972) 3 SC 113; GAMBARI VS GAMBARI (1990) 5 NWLR PT 152 PG 572 AT PG 589 PER ACHIKE JCA. He contended further that the 2 nd Defendant ought not to be a party in this matter and refusal to grant him this application will prejudice him, as he will be made to go through a rigorous trial in a case he ought not to have been joined as a party. Counsel acknowledged the fact that granting this application is at the discretion of the Court which must be exercised judicially and judiciously and finally prayed the Court to grant this application. Learned Counsel to the Respondent in his Written Submission also formulated two issues for determination which are:- (1) Whether or not the Applicant had fulfilled the requirements of the law to deserve the grant of stay of proceeding and 3
(2) Adopted the second issue raised by the applicant which is whether or not the circumstances of this case warrant a stay of proceedings pending appeal. Learned Counsel while addressing Issue One contended that, leave of Court is required to appeal against the decision of a Court when such decision relates to a question of fact or mixed law and fact. He argued further that the Applicant failed to seek the leave of Court before his purported appeal at the Court of Appeal since the decision of this Court vide Exhibit A annexed by the Applicant to his Motion relates to the question of joinder of parties in this matter, and is purely a question of fact. Learned Counsel submitted that failure to satisfy the requirement of law in Section 242 (1) of the 1999 Constitution by the Applicant nullifies Exhibit B which is the Notice of Appeal and the Court cannot rely on same, citing the case of ORURUO VS. UGWU (2007) 7 NWLR (PART 1033) 225. In regard to the Second Issue, Learned Counsel submitted that an application of this nature can only be granted on the existence of special and exceptional circumstances, particularly when the issue of jurisdiction is genuinely raised. The issue of jurisdiction must not be raised as a camouflage or magic wand to conjure a stay of proceeding. He stated further that the Applicant did not raise the issue of jurisdiction and neither did he contend or dispute the fact that this Court has jurisdiction to determine the issue of rent, recovery or premises and joinder of parties. He referred to the cases of I.G.P. VS. FAYOSE (2007) 9 NWLR (PART 1039) 263 and P.D.P VS. ABUBAKAR (2007) 2 NWLR (PART 1018) 303. He concluded this argument by stating that the applicant has failed to establish special or exceptional circumstances in this application. Learned Counsel further argued that in determining this application, the Court has to consider the essence of time and should not grant an application which is antithesis to the speedy hearing of the case. He submitted that the Defendants are in arrears of rent for second year from the inception of this case and therefore the Court must weigh the issue of time to arrive at the justice of this case. He referred to paragraphs 2 (d), (e), (f) and (g) of his Counter Affidavit and the cases of INAKOJU VS. LADOJA (2006) 18 NWLR (PART 1012) 666 and OKEM ENT. (NIG) LTD VS. N.D.I.C. (2003) 5 NWLR (PART 814) 495. He finally conceded the point that granting the application of this nature is at the discretion of the Court and he urged the Court to dismiss this application with cost. 4
After a careful consideration of the submissions of the Learned Counsel across the divide, as well as the processes filed, the sole issue for determination is whether this application is meritorious in view of the circumstances of this case and in the overriding interest of justice. It is trite law that the grant or refusal of an application for Stay of Proceedings pending the determination of an appeal is within the discretionary power of the Court, which ought to be exercised judicially and judiciously. See the case of OCHOR VS. OJO (2008) 13 NWLR (PART 1105) PAGE 524 @ 532. The exercise of this discretionary power is dictated by the facts and circumstances of a given case. Therefore discretion is said to be properly exercised when it is based on the facts and guided by the law or the equitable decision of the Court. See also the case of GENERAL & AVIATION SERVICES LTD VS. THAHAL (2004) 10 NWLR PAGE 50 @ 58. This discretion must not be exercised erratically but must take into account the competing rights of the parties to justice. The Applicant must show special or exceptional circumstances why the stay should be granted. The circumstances will of course depend on the facts of each case. The collateral circumstance for consideration is that a successful appeal should not be rendered nugatory. The onus is on the Applicant to show that in the circumstances of his case, it would be unjust and inequitable to refuse his application. See the following cases VASWANI TRADING CO. LTD VS. SAUALAKN & CO. (1972) 12 SC @ 77, OBEYA MEMORIAL SPECIALIST HOSPITAL & ANOR VS. AGF & 1 OR (1987) 3 NWLR (PART 60) @ 325 and SHODEINDE VS. TRUSTEES OF AHMADIYA MOVEMENT IN ISLAM (1980) 1 2 S.C. @ 163. In the case of NIKA FISHING CO. LTD VS LAVINA CORPORATION (2008) 6-7 S.C. PT II AT 200, it was held by NIKI TOBI J.S.C. that a Stay of Proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation in the trial on the basis of the merits of his case. Consequently, the Court s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue. The guiding principles for the grant or refusal of an application for a Stay of Proceedings are well defined and have been severally enunciated in many judicial decisions. A Court of law must consider the following questions:- (a) Whether there is a valid and competent appeal pending 5
(b) (c) Whether the Applicant has shown by credible evidence that there are special and exceptional circumstances involved for consideration to warrant the grant of the application and Which of the competing rights and balances of convenience of the rights of the parties would support the grant. See SARAKI VS. KOTOYE (1992) NSCC 23 PART 111 @ PAGE 331; SHODEINDE VS. TRUSTEE OF AHMADIYA MOVEMENT IN ISLAM (supra); KIGO (NIG.) LTD VS. HOLMAN BROS (NIG) LTD (1980) 5 7 S.C. 60; AKILU VS. FAWEHINMI (No.2) (1989) NWLR (PART 102) and DINGYADI VS. INEC (2010) S.C. 32 I have carefully considered the depositions as contained in paragraphs 3(a), (b), (c) and (d) of the Applicant s supporting affidavit and note that the Applicant has filed a Notice of Appeal against the Ruling of this Court dated the 29 th day of June 2010 refusing the application to strike out the name of the 2 nd Defendant from the substantive case. Exhibits A is the Ruling appealed against and Exhibit B refers to the Notice of Appeal filed at the Court of Appeal. The applicant had argued that the Ruling of this Court disclose a very serious error of law which cannot be corrected by the Court on its own. Looking at Exhibit B which is the Certified True Copy of the Notice of Appeal, the Applicant referred to page 4 and 5 of the Ruling as a serious error in law stating that such paragraph as paragraphs 4, 4(b), (d) (e) and (f) does not exist in the Statement of Claim. I have carefully looked at the said Ruling comparing and contrasting same with the Statement of Claim in this case and noted that there was a typo-graphical error therein. The correct position of the Court was a reference to paragraph 4 of the Statement of Claim and paragraph 4(b), (d), (e) and (f) of the counter affidavit of the Plaintiff/Respondent to the application striking out the name of the 2 nd Defendant. It can be seen that the said error, which was a typographical slip commenced in page 4 at the 5 th paragraph with the following line From the Statement of Claim at paragraph 4 and also at paragraphs 4 (b) (d) (e) and (f).. the words and also at shows that something was to follow otherwise it would have simply been at paragraph 4 at paragraphs (b) (d) (e) and (f). It should be noted that a Judge can amend his Judgment whether enrolled or not where there is a clerical slip or where the Order does not express the meaning of the Judgment or Order intended by the Judge. This is known as the slip-rule-principle. See MAKANJUOLA VS. BALOGUN (1989) 3 NWLR (PART 108) PAGE 192; NKOH VS. P.I.E. COMPANY LTD (1990) 1 NWLR PART 129 PAGE 697; BAKARE VS. APENA (1986) 4 NWLR (PART 33) PAGE 1. It should be further noted that the exception to the general rule that a Judge is functus officio after pronouncing judgment, is the power granted by the 6
Rules of Court to correct clerical errors and accidental omissions in a Judgment even after it has been delivered and formerly entered. Under the various Rules of Court relating to amendments clerical mistakes in Judgments or Order, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court or a Judge in Chambers on Motion or Summon without an appeal. See Order 24 Rule 7 of the Rules of this Court. Aside from the Rules, the Court has an inherent power to vary its own Orders so as to carry out its own meaning and to make its meaning plain. A Court has inherent power to amend its own Judgment to reflect its correct intention when it discovers that the Judgment as drawn up does not correctly state what it actually decided and intended. See PEARLMAN (VENEERS) S.A. (PTY) VS. BERNARD BARTELS, (1954) 3 ALL E.R. 639, C.A. (U.K); UNION BANK OF NIGERIA PLC VS. IBHAFIDON (1994) 1 NWLR (PART 318) 90 and ANYAORAH VS. ANYAORAH (2001) 7 NWLR (PART 711) 158 @ 175. LORD WATSON in HATTEN VS. HARRUS (1892) A. C. 560 held that where an error of that kind has been committed, it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the Order which the Judge obviously meant to pronounce. The correction ought to be made on Motion and it is not a matter for rehearing. In the light of the above principle, paragraphs 5 of page 4 of the Ruling which is Ground One of the Applicant s appeal in the Notice of Appeal is found to be a clerical mistake which can be corrected under the inherent power of the Court. The intended and correct position of Court s pronouncement is that from the Statement of Claim at paragraph 4 and also at paragraph 4 (b), (d) (e) and (f) of the Counter Affidavit to the application to strike out the name of the 2 nd Defendant from this suit, the Respondent had averred to the fact that the 2 nd Applicant lives with his family at the boys quarters of the demised property which he also uses as his office. Paragraph 4(b), (d) (e) and (f) of the Counter Affidavit of the Plaintiffs/Respondents dated the 21 st day of May 2010 to the application of the 2 nd Defendant to strike out his name dated 13 th day of May 2010 refers. Having critically considered the said Ruling where the Court held that from the above reasoning, it is clear that there is a controversy between the parties for which evidence has to be led at the trial and for the Court to properly determine the issue in controversy. Both parties have not satisfied the Court as to the residency or otherwise of the 2 nd Applicant in the property in question. The Court also held in its Ruling that 7
from the processes filed, it was clear that the 2 nd Applicant signed the tenancy agreement, and this makes him a nominal party who is necessary for the just determination of the issues raised in the substantial trial. The issue regarding the satisfaction or otherwise of the statutory notices will also be dealt with at the trial of the case and is somewhat premature at this stage. I have also considered paragraph 2 (c) and (d) of the Respondent s Counter Affidavit, and find that this application is calculated to waste the time of the Court. The Notice of Appeal dated the 12 th day of July 2010 has not been disposed off till now, which is an indicator that the Applicant is not diligent in prosecuting the appeal. In the light of the above, I am convinced and satisfied that the issues in the ground of appeal do not necessarily terminate the continuation of the case before this Court and being interlocutory in nature can be conveniently dealt with in an appeal against the final judgment of this case, if need be. The grounds are not fundamental in nature to warrant a stay of proceedings in this case, and I find no such compelling reasons in the deposition to justify the grant of an Order of stay in this case as no compelling evidence was presented of any special or exceptional circumstances. An application of this nature is a serious interruption on the right of the Plaintiff to have the case speedily deposed of. The balance of convenience as well as the interest of justice demands that this application be refused as unmeritorious, and is accordingly refused and dismissed. Parties are urged to concentrate on the substance of the case before the Court. HON. JUSTICE A.A.I. BANJOKO JUDGE 8