Joseph Edet Wey Vs Anne Bassey Wey (1975)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

In this application the prayer is for “an Order granting a stay of execution of the Order made by the High Court of Lagos State on 8th June, 1974 for the payment by the Petitioner/Applicant to the Respondent of N2,000.00 lump sum and N150.00 monthly until the determination of the appeal in the matter”.

Chief Williams, learned counsel for the applicant, drew our attention to the fact that, although during the trial the learned trial Judge awarded the respondent the sum of N90 as alimony pendente lite, there is nevertheless no evidence of it in the record of appeal. That there was such an award was confirmed by Mr. Sofola, learned counsel for the respondent, who, however, pointed out that there was some reference to the matter in a portion (at bottom of p.2 and top of p.3) or the copy of the judgment attached to the Further Affidavit of the applicant.

He, of course, agreed that the reference was not specific enough. Chief Williams submitted that there are two parts of the Order which are the subject of the present application: one relates to the payment of a lump sum of N2,000 which the applicant should make into court, and the other is in respect of the maintenance of N150 monthly. Learned counsel prays the court to stay execution of the N150 payable to the respondent monthly, since there has been no protest against the trial Judge’s award of monthly N90 pending suit: there is no appeal against this part of the Order. He maintains that under Section 70(1) and (2) of the Matrimonial Causes Decree, the award of an alimony takes into consideration the same criteria as does the award of maintenance. In reaching the figure of N90, all relevant particulars of both parties were taken into account by the learned trial Judge.

If it be objected that the later award of N150 should be regarded as a variation of the earlier award, he would concede that the court has power so to vary an award but should only do so in the light of new facts. He also contends that the applicant has no funds with which to pay the lump sum of N2,000 and that its payment be stayed until the applicant receives his arrears of salary under the Udoji Salary Review Commission’s Report and the Federal Government White Paper thereon, or until any of other windfall should come into his hands; the payment of the Udoji arrears had been promised for the next month or two. He submits further that, until the appeal itself is disposed of, the payment of the N150 monthly be stayed and the applicant be allowed to continue to pay the original interlocutory award of N90 monthly.

Mr. Sofola opposes the application which he submits has no substance because the earning capacities of the parties and their conduct towards each other were not examined by the learned trial Judge when the N90 was awarded in the first place. It is his case that the final award of N150 supercedes the interlocutory award of N90, the latter having thereby ceased to apply. He further argues that the applicant’s affidavit does not say that, if the money were paid now to the respondent, she would not be able to refund it should she lose the appeal eventually. Learned counsel refers us to a portion of our judgment in Vaswani Trading Co. v. Savalakh Company (1972) 12 S.C. 77, at p.81 (last paragraph) where we emphasized the fact that the grant of a stay of execution of a judgment should only be made in “very special circumstances”. We there pointed out, however, what is meant by this phrase as follows:

“When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject-matter of the proceedings or foist upon the court, especially the Court of Appeal, a situation of complete hopelessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.”

We do not, therefore, agree that such is altogether the case under the present application. We cannot entirely disregard the fact that the lower court already granted a stay of execution and that the applicant has come to this court in order to try to obtain better conditions for the payment of both sums.

On the whole, we think that the justice of the case would be met if we made the following order.

“It is hereby ordered that the maintenance of N150 a month payable by the applicant to the respondent should stand, but that the N2,000.00 lump sum be stayed on condition that the applicant produce a bondsman for that amount and that as soon as the applicant comes into the expected funds the amount of N2,000.00 should be paid to the respondent or as ordered by the trial Judge.”

Other Citation: (1975) LCN/2127(SC)