Comrade Benson Ekasa v Comrade Menele Ziadam Nzidee

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 14 May 2020
• Respondent: Comrade Menele Ziadam Nzidee
• Appellant: Comrade Benson Ekasa
• Docket Number: NICN/ABJ/337M/2019
• Counsel: REPRESENTATIVE: Chinyere Moneme, Esq; counsel for the 1st claimant
• Court: National Industrial Court (Nigeria)

1. The 2nd Defendant/Applicant brought a Motion on Notice dated and filed on the 8th day of November, 2019. The motion on notice was brought pursuant to Order 64 Rules 8(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the Inherent Jurisdiction of this Court, praying the Honourable Court for;
a. AN ORDER OF COURT granting stay of execution of the judgment delivered by the Honourable Court on 25th October, 2019 pending the determination of the Appeal against the said judgment.
b. AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances pending the hearing and final determination of the substantive suit.
2. The Motion on Notice was supported by a 10 paragraph affidavit and an 8 paragraphs further affidavit both deposed to by Chika Eze, a Legal Practitioner in the law firm of Dr. Arthur Nylander, SAN, the Solicitors to the 2nd Defendant/Applicant in the suit. In paragraphs 3 and 4 of the affidavit in support of the motion on notice, the deponent claimed to have attached exhibits A, B and C, to the affidavit. However, those exhibits were never attached as claimed. This may have been what necessitated filing of further affidavit wherein the said exhibits were attached.
3. Chika Eze, Esq; counsel for the 2nd Defendant/Applicant in oral adumbration relied on all the paragraphs of the affidavit in support and the further affidavit together with all the exhibits attached therein. Counsel also adopted the written address filed along with the application as his argument. In the written address a sole issue was formulated for determination, to wit:
‘’Whether this 2nd Defendant/Applicant is entitled to the prayers sought in this application?

4. In arguing the sole issue for determination, counsel to the 2nd Defendant/Applicant argued that the Court had both statutory as well as inherent jurisdiction to grant this application. Counsel relied on Order 64 rule 8(1) of the rules of this Honourable Court and the case of OGUNREMI V DADA (1962)ALL NLR 663, COKER V ADEYEMO (1965)1 ALL NLR 120, SODEINDE V THE REGISTERED TRUSTEES OF AHMADIYA MOVEMENT IN ISLAM (1980) 1-2 SC 163. in support of his contention.
5. Counsel argued that the in determining grant or refusal of stay is at the discretion of the court which must be exercised judicially and judiciously. It is not exercised at the whims of the court. In support of this argument counsel relied on several decisions in the cases of KIGO NIG. LTD V HOLMAN BROTHERS LTD (1980) 5-7 SC 60, VASWANI V SAVALAKH (1972) SC 1, BALOGUN V MUYODE ENT. LTD (2008) 3 FWLR (Pt.77) 383; BALOGUN V BALOGUN (1986)1 ALL NLR 346 and MOBIL OIL LIMITED V AGADAIGHO (1988)2 NWLR 383 where the Court held that it will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. Counsel submitted that the Honourable court is duty bound to avoid a situation where their judicial firmament is exposed to anarchy by reason of conflicting decisions emanating from the trial and appellate court.
6. Counsel contended that applying the principles of law enunciated in the cases cited above to the facts of this application, the grounds of appeal in exhibit B raises arguable and substantial ground of appeal. it is also submitted that grounds of appeal are not prevolous they raised serious and recondite points of laws in its appeal that ipso facto will succeed.
7. It is also argued that taking into consideration paragraph 5 (a-g) of the affidavit in support refusal of this application will foist upon the court, a situation of complete helplessness. There cannot be a return to status quo because grave injury would have been unleashed of the members of the 2nd defendant/applicant and the public in general other than the temporary restrain from imposing the the 2nd claimant/respondent as the National president of the 2nd Applicant. There is no gainsaying this fact, as the 1st to 3rd defendants have already express this that cannot be redress through award of damages. While the respondent will loose nothing. Counsel urged the court to grant stay as in the interest of justice.
8. The 1st Claimant/Respondent filed a 33 paragraphs counter affidavit and Written Address in opposition to the motion on notice dated and filed 8th November, 2019 by the 2nd Defendant/Applicant. The counter affidavit was deposed to by one Benson Ekasa, the 1st claimant/Respondent in the suit. Attached to the counter affidavit are CTC of ruling striking out application for stay of execution, exhibit CMB1, copy of ruling of 25/10/2019, exhibit CMB2, and notice of appeal in...