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The misnomer in use of interim applications

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 interim applications
Judicial symbol for justice

By Rilwan Balogun

PERHAPS, because of the political calculation in view of 2023 general elections, there have been moves, intrigues and permutations,  but rather surreptitiously, by political gladiators in Nigeria essentially to  manipulate the course of justice for personal aggrandisement. Though, 2023 is still over 1000 days ahead, the reason for these cynical permutations is not unconnected to the fact that, in every skewed democratic process, electoral victories are not won by accident.

Specifically, the recent political crisis raging in Nigeria, particularly, in the ruling All Progressives Congress, APC, triggered interest in interim applications and orders that have and most likely will be further abused by litigants.

The attitude of parties to litigation before Nigerian courts paradoxically defies equity in their bid to seek equitable remedy. Interim injunctions or orders are meant to be granted by a judge to prevent a threatened breach that could pervert the course of justice or render the order of the court barren.

Interim applications, as the names imply, are mid-way applications made to the court with a view to preserve the res pending the determination of the substantive suit or substantive appeal as the case may be. They are made by means of motion either on notice or ex parte, in the course of proceedings, so as to keep matters as status quo and preserve the res, pending the hearing and determination of the substantive appeal or until a named date.

The hurdles that need be crossed for any of these orders to be granted are often similar; if not the same, however, the confusion seems to lie in the fact that interim orders are meant basically for the preservation of res. The nature of the res, or perhaps circumstances of the res itself, is what needs to be considered before applying for any. Unlike stay of execution and injunction pending appeal, stay of proceedings is mostly, but crookedly deployed, so as to waste inordinate time of the court and opposing party involved, in the applicant’s insipid bid to pervert the administration of justice.

For instance, in Dike Geo Motors ltd & Anor v. Allied Signal Inc. 7 Anor where  the case was delayed for about seven years (1998-2005) as a result of the order of stay, in the exercise of right of appeal. Condemning this attitude, the Court of Appeal admonished that sections 241- 2 of the constitution which deal with the right of appeal should not be allowed to override, overshadow and/or render ineffective section 36(1) of the Constitution which guarantees the right to fair hearing within a reasonable time(see also the admonition of Ogbuagi, JSC in Umeamadu v A.G Anambra [2008] 9 NWLR pt. 1091, 175 at 196-197).

In the recent decision handed down by the Supreme Court in Udeogu v FRN (FRN V Orji Uzo Kalu & 2 Ors), which borders on a matter that could be brought under an interlocutory decision at the lower court but rendered nugatory the whole adjudication that lasted for 12 years, the apex court held that, where a judge is promoted to an upper court, it is constitutionally trite to declare such judge functus officio of any matter he might be handling prior to his elevation.

While nullifying section 396(7) of the Administration of the Criminal Justice Act, 2015, (ACJA, 2015) the Supreme Court held that the fiat given by the then president of the Court of Appeal was inconsistent with sections 250(2) and 253 of the 1999 Constitution of the Federal Republic of Nigeria. The Supreme Court in its wisdom staunchly lampooned the audacity of the National Assembly in speaking through section 396(7) of the ACJA, 2015, which states that “….notwithstanding the provision of any other law to the contrary….” Justice Ejembi Eko, JSC, in his lead judgment, while declaring the ACJA, 2015 as not existing in corpus juris of the Laws of the Federation of Nigeria, came down heavily and stated that “…. the ACJA 2015 in its 495 sections, does not define ‘law’, or any other law or the any other law to the contrary, that its provision in section 396(7) purports to override”.

It appears “any other law to the contrary” includes any written law or statute, including the 1999 Constitution, as amended that contradicts section 396(7) of the ACJA! The National Assembly, in view of the supremacy provision of the Constitution, in section 1 thereof, could not have intended that audacious insubordination to the Constitution, or state of absurd foolhardiness of legislating into section 396(7) of the 2015: that the provision would also override any provision of the Constitution to the contrary of section 396(7) ACJA”.

This writer is of the view that, the Administration of Criminal Justice Act 2015, ACJA 2015, is instrumental in reducing delay of justice perpetrated by some counsels to litigants which they do through the abuse of application of stay of proceedings and interlocutory appeals. The brawny application of section 306 of ACJA, which prohibits stay of proceedings, has made the court to adjudicate, timely, more criminal proceedings, especially ones involving high profile cases. These applications have been used to, adversely, to drag the court into a merry-go-round with the adverse party and the three tiers of the court.

Therefore, this writer canvasses that it is a very sad day for our judicial system and indeed, our democracy, because this decision has dragged our legal jurisprudence a century backward, and thus gagged us between the confine of mediocrity, which defies judicial activism and as one which places sheer technicalities above substantive justice. This is because such technicality should not be allowed to fly in the face of substantive justice and could at best be raised at the appeal court as an interlocutory issue and such should have been determined with efficient expediency.

READ ALSO: Ize-Iyamu, Oshiomhole will face defeat Sept 19 – Osagie

Aside the spurious and delay tactics, interim applications of stay of execution and injunction pending appeal are also used interchangeably. Regrettably, however, though similar in many ramifications, they differ. The reason for this mistaken application is perhaps due to the fact the two are appropriately concerned as  post judgement applications, necessarily one that is sought after the determination of a substantive suit by the court.

It has severally been held that where the court merely declines jurisdiction in a matter or gives a purely declaratory judgement, application for stay is inappropriate(see Okoya v Santili [1990] 1 NSCC vol. 21 p. 36). In addition to this above, this writer is of the opinion that where the res of the suit borders on title to an office; as in the Oshiomole’s case, the appropriate application to make ought to be an injunction pending appeal and not stay of execution as widely misreported and adopted by the public.

This can be justified, because the legal declaration of one, as a bona fide holder of an office is a right to title, which is declaratory in nature and not executory.

It must be elucidated that, in executory judgment, there must be something, mostly physical, one involving performance of an action or inaction, directed to be done or undo, for example, demolition of building, withholding of money, etc.

The fact in Oshiomole’s case, before the court was similar to the case of Shodeinde v. Registered Trustees of the Ahmadiyya Movement in Islam, because in that case, it was the legal determination of the suspension and membership of a person, which ipso facto, is a matter that goes to the title of a person as a holder of an office.

Oshiomole’s bid to restore his membership as a party member and at large his title as the chairman is declaratory in nature and not executory. This is because, it is until when this is determined in his favour or not, that is when he would be able to activate his legitimate power, a fortiori, as a chairman.

Poignantly stating hypothetically, if A was a member of Nigerian Society of Engineers, and by virtue of which he was an elected chairman. Where A is stripped of the office as a chairman, the proper interim application to file in the course of the suit challenging his right as a chairman is an injunction pending appeal.

This is because, the root of the matter is built on whether A still has the title or not. The courts have however, ruled in plethora of cases that where the res is anchored on an issue relating to title, either to an office or a property, the appropriate application to file and order to seek is declaratory to wit; injunction pending appeal. In Yaro v. Arewa Construction limited where the claim of the applicant against the respondents was essentially for declaration of title to a property located and known as Plot 188/189, Club Road, Kano.

After dismissing the appeal in the lower courts, and further appeal to the Supreme Court, which was brought as an application for “an order staying execution of the judgment delivered by the Court of Appeal on July, 1996, pending the hearing and determination of the appeal lodged in this honourable court”. Learned counsel for the respondent argued that, there was nothing to stay in the judgment of the Court of Appeal.

Agreeing with the counsel’s submission, the Supreme Court held inter alia that “…. an order of stay of execution can only be made in respect of executory judgment or order and not otherwise. Therefore, there cannot be a stay of execution of a judgment or order which does not admit any execution but merely declares a legal status or right or proclaims the existence or otherwise of legal relationship” per. Kutigi, JSC at 381.

In the Shodeinde’s case where the plaintiff’s claim was that they alone are the lawful representatives of the Ahmadiyya Movement, and so, entitled to all lands and property belonging to the Movement was dismissed. On appeal to the Supreme Court, it was that the application would not be granted only to the extent that, the application being an original motion, ought to be brought, first, before the trial court and not overboard to the Court of Appeal.

But, it is clear, as it was shown in a pronouncement of the learned justice that had it been brought before the trial court first, there is every possibility that it could be feasibly granted.

No doubt, all these are cases of claim of right to title, which this writer canvasses, vehemently, that are rooted more in declaratory orders rather than executory because, there is nothing physical to be done or undo. Conclusively, it is time we faced up to the reality of what the purports of enactments are, especially where the concept of substantive justice in the real sense would be bastardized.

The court, though, tend to be more protective of the res, irrespective of the misapplication of interim orders, as in the decision held in Shell Petroleum Development Company Limited v Amadi and by the enormous power of sections 15 and 17 of the Court of Appeal Act and sections 22 and 24 of the Supreme Court Act, however, much more would be achieved to tackle, frontally, the issue of delay in the adjudication, that is seriously defeating the essence of justice.

Specifically, it’s strongly canvassed that, when the reason for the injunction pending appeal or stay, whatsoever, relates to issue that will or likely nail the coffin of the whole trial, i.e one that transposes to final judgment, utmost expediency should be deployed to adjudicate on such issue, because we cannot as a nation be moving one step forward, thousands step backward as in the Kalu’s case. This, indeed are sad days for our dear country.

Balogun, a Lagos based legal practitioner and human rights advocate, wrote via: rilwanbalogun60@yahoo.com.

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