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

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

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