The court, in its ruling on Thursday, stated that when an appeal had been entered in an appellate court, it does not operate as a stay of proceeding in the lower court.
Counsel to the first defendant (Imuse), Austin Osarenkhoe, who had entered an appeal, urging the High court to stay proceeding through an oral application before the court in the suit filed by the Claimant, the Resident Electoral Commissioner of the Independent National Electoral Commission in Akwa Ibom State, Mike Igini.
He had demanded the sum of N5 billion as aggravated damages from Imuse for alleged libellous publications in three national newspapers against the Claimant before Edo 2020 Governorship election.
Justice Vestee Eboreimen dismissed the motion seeking to stop the hearing of the case after listening to the arguments of Counsels to parties in the suit.
The court held that an application for stay of proceedings ought to first be filed adding that, when an appeal has been validly entered, the application must be filed in the right format
Justice Eboreimen ruled that, “I have accordingly dismissed and discountenance the application of stay of proceeding orally moved by the first Counsel to the first defendant. I call on the Claimant to continue with his case.
Earlier, the defence counsel, Austin Osarenkhoe, submitted that on that ground of the appeal, the High Court should stay proceeding, pending hearing on the case at the appeal court.
He cited citations and authorities as well as referred to relevant rules of the court of appeal to buttress his argument.
But, the lenient senior counsel of the Claimant, Clement Onwuenwunor, objected to the prayers of the first defendant to stay of proceeding, arguing that the first defendant has not even filed the stay of proceeding on the case.
He referred to order 4 rule 11 of the Court of Appeal rules for 2021, and the Supreme Court ruling between Justice Walter Onnoghen (retd.) versus the Federal Government of Nigeria, with citations supplied and others.
He further argued that an appeal does not stand as stay of proceeding.
But in his reply on the point of law, Austin Osarenkhoe argued that order 4 rule 11 of the court of appeal which was referred to by his lenient colleague does not avail him.
Having given due consideration and recognition to the authorities cited, Justice Eboreimen said, “I am satisfied that the court of appeal rule is quite explicit…”
“An appeal even when it has been entered in an appellate court, does not translate to a stay of proceeding in the lower court”, he said.
The Judge, who relied upon already decided Supreme Court cases, said it is settled in law that an appeal does not operate as a stay of proceeding in the lower court.
Accordingly, the court said, “Clearly this court has granted no stay of proceeding because dependency of the motion to stay proceeding is the matter of fact and admissible evidence, adding that unless there is an order from an appeal court, the lower court does not stay proceeding on a case that had been entered in the appellate court.”
The court also dismissed the objection of the APC chieftain against the admissibility of video evidence sought to tender by the plaintiff.
In its ruling, the court, which admitted the video evidence, said it was germane and cogent for the plaintiff’s case.
The case which, however, commenced proper with the claimant (Igini) testifying in a statement on oath, admitted the photocopies of the published story from the press conference.
The court, however, adjourned the case to August 3 and 4 for continuation of hearing. It urged the plaintiff to put the second and third defendants on notice of the adjournment.
