Union Bank of Nigeria Limited V. Fajebe Foods and Poultry Farms & Anor (1994)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A. 

This is an application brought as per motion on notice dated 7th October, 1993 in pursuance of Section 18 of the Court of Appeal Act, 1976 seeking the following reliefs as amended-
“(1) An order for stay and or suspension of execution of the judgment of His Lordship Kuforiji, J., delivered on the 26th of July, 1993 pending the final determination of the defendant’s appeal to the Court of Appeal, Ibadan.
(2) An order restraining the plaintiff/respondents from taking further steps in the levy of execution and more particularly from disposing of or selling the defendant/appellant’s properties attached on the 7th day of October, 1993.
(3) An order releasing to the defendant/appellant its properties against which execution were levied on the 7th of October, 1993”

The judgment being sought to be stayed is in respect of two separate suits (AB/128/86 and AB/47/87) which were consolidated at the trial. The motion on notice was brought (in) pursuance of Section 18 of the Court of Appeal Act, 1976. It is supported by an affidavit, a further affidavit and a further and better affidavit, another affidavit by one Ola Animashaun is attached to the further and better affidavit. The respondents deposed to counter-affidavit and further counter affidavit. It is pertinent to mention, at this stage, that the appellant counter-claimed against the plaintiff in Suit No. AB/128/86. The learned trial Judge concluded his reserved and well considered judgment as follows:-
“The judgment of this court shall therefore be as follows:-
(a) In respect of Suit No. AB/128/86 judgment for the plaintiff against the defendant Bank for the sum of N2.55 Million.
The counter claim is hereby struck out.
(b) In respect of Suit No. AB/47/87 judgment is hereby entered for the plaintiffs against the defendant Bank in the following terms:
(1) Declaration that the exercise (of) the power of sale of the mortgage in respect of properties:-
(i) situated at Aiyetoro Road opposite Premier Grammar School Abeokuta covered by Certificate of Occupancy No. 00001492 and registered as No. 16/16/235.
(ii) situated at Akewe village off Aiyetoro Road, Abeokuta covered by Certificate of Occupancy No. 0001440 registered as 17/17/235,
both taken as security for loan facilities has not arisen.

(2) Declaration that the Publication by the defendant bank of an Auction Notice on page 10 of the Daily Sketch of the 18th day of May, 1987 in respect of the said properties and the pasting of the Auction Notices on the walls of the properties and in various parts of Abeokuta is improper, null and void.
(3) Judgment for 1st and 2nd plaintiffs against the defendant bank for the sums of N1 Million and N0.25 Million respectively as damages for libel.”

The applicant is dissatisfied with the decision of the lower court and has apparently appealed to this Court on two separate notices of appeal respectively dated 26/7/93 and 30/7/93. The former is attached to further and better affidavit deposed to by one Abayomi Bisuga on 4th August, 1993 while the latter is exhibited hereto affidavit deposed to on 8th October, 1993. I say the applicant has seemingly appealed because none of the notices of appeal bears a date of filing although settlement of records dated 27/9/93 is exhibited to the affidavit in support of the motion. It is, therefore, presumed that the notices of appeal have been filed since there can be no settlement of record before an appeal is brought.

The learned Senior Counsel for applicant after referring the Court to the various affidavit deposed to in support of the application proceeded to demonstrate the apparent injustice the refusal may work on the applicant. In showing that it is not equitable to refuse the application he told the Court that the judgment debt and costs inclusive is about N3, 000,000.00 in contrast to N1,000,000.00 loan the respondents took from the appellant which has escalated to N21, 000,000.00 which is still in their hands. It is also his contention that the respondents might not be in a position to refund judgment debt in event of their appeal pending in this Court succeeding. He cited the cases of Royal Exchange Assurance Nigeria Limited & Ors v. Aswani Textiles Limited (1992) 3 NWLR (Pt. 227) 1, 8 and Nigerite Limited v. Dalami (1992) 7 NWLR (Pt. 253) 288, 301. Before urging the Court to grant the application he referred to paragraphs 14 and 15 of an affidavit deposed to by one Mr. Sowunmi wherein the applicant is prepared to settle for a conditional stay of execution subject to payment of the judgment debt into an interest yielding account. This offer was rejected by the learned counsel for respondents.

Learned counsel for respondents is opposed to granting of all the reliefs sought which opposition is founded on a counter-affidavit and a further counter-affidavit. He contended that the power of this Court to grant a stay of execution seems taken away by or spent with the execution of the judgment. Counsel then concluded that applicant ought to have approached the court below and not this Court under Section 53 of the Sheriffs and Civil Process Law Cap. 117 of the Laws of Oyo State, 1978.

His contention on ousting of the competence or jurisdiction of this Court to act under Section 53 of Cap. 117 is founded on the case of Mr. Tokunho Onagoruwa & Anor v. Alhaja Taibat Adeniji (1993) 5 NWLR (Pt. 293) 317. He argued further that the applicant have not shown exceptional circumstances why it did not go to the High Court to seek the relief set out under Section 53 of the Sheriffs and Civil Process law and referred to the case of Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 172.

On the stay of execution he argued that the applicant is not entitled having not shown special circumstances. He contended that paragraphs 5, 6, 7, 9, 10 and 11 of affidavit deposed to by Bisuga offend against provisions of Sections 87 and 88 of the Evidence Act. He further contended that Exhibits A84 and A85 are form Co7 which merely state the directors and not the state of the first respondent’s account and for that reason not admissible. He contended further that respondents are in a position to refund the judgment debt should the appeal be decided against them and in favour of applicant. Finally, counsel submitted that the grounds of appeal or part thereof are incompetent.

Pausing here I propose to consider and resolve the objections raised by the learned counsel for respondents. On the competence of the grounds of appeal or some of them, the learned counsel for respondents failed to analyse any of the grounds with a view to showing that they are incompetent. In spite of this observation of mine, I have examined the grounds of appeal set out in notice of appeal dated 26th July, 1993 and they appear to me prima facie competent for the purpose of this court id est the Court of Appeal. I say for the purpose the Court of Appeal, in the circumstance of this case, because appeal lies to this Court from final decisions of the High Court as a court of first instance by virtue of Section 220(1)(a) of the 1979 Constitution of the Federal Republic of Nigeria, as of right irrespective of the nature of the grounds of appeal. An appeal from a final decision of a High Court as a court of first instance based solely on an omnibus ground could not be said to be incompetent. I have in the light of this provision of the Constitution examined all the grounds of appeal and they are of mixed law and facts for which no leave is required to canvass them in this Court. The learned counsel for respondents may be on a firmer ground if such grounds of appeal are directed to a decision of this Court, without leave of either this Court nor of the Supreme Court being first sought and obtained, on a further Appeal to the Supreme Court. So also would they be incompetent if they were filed without leave in respect of a further appeal from a High Court to this Court. The general ground otherwise referred to as the omnibus is although inelegantly couched cannot be said to be incompetent because the purpose of inserting the word “weight” in the general ground is to show that civil cases are decided on preponderance of evidence in contrast with criminal cases which are determined on proof beyond reasonable doubt. That the burden of proof in this appeal is on the preponderance of evidence is adequately conceded by the appellant in its omnibus ground with the insertion of the word “preponderance” therefore in the absence of the word “weight”.

The next line of objection by the learned counsel as to the applicant seeking relief under Section 53 of Sheriffs and Civil Process Law (supra) first in this Court; is an oblique one. I mean, in my candid opinion, he intended it to be in alternative to his earlier objection that this court cannot give remedy under the Sheriffs and Civil Process Law (supra) except the matter comes on appeal before it. I think he has in mind the provisions of Order 3 rule 3(4) of the Court of Appeal Rules, 1981.

Order 3 rule 3(4) provides as follows:-
“4. Whenever under these rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances which makes it impossible or impracticable to apply to court below.”
Clearly the purport of the sub-rule is that where there is a concurrent jurisdiction the application should first be made to the court below. It is only when it fails either completely or partially can such an application be renewed in this Court. Seeking a remedy or relief under Section 53 of Sheriffs and Civil Process Law first in this court without showing special circumstance is not proper. See the case of Kalu v. Odili (supra) cited by learned counsel for respondents. It supports the view that an applicant who fails to approach the court below must show exceptional circumstances which made it impracticable or impossible for him to seek the relief being sought herein in the court below. There is therefore some merit in this objection. But it is, to my mind, a phyrric victory as there is a point in favour of the applicant herein.

The point favourable to applicant which I have in mind is that it had earlier applied to the court below for a stay of execution which had been refused. The relevant ruling exhibited to the further and better affidavit deposed to by one Mr. Sowunmi. Having been refused it renewed its application in this court wherein it raised for the first time the question of protecting the property seized under the provisions of Section 53 of the Sheriffs and Civil Process law (supra). To ask the applicant to return to the court below to seek the second relief in respect of which it had not apply to and be refused by the court below may lead to a mere vicious circle. The quagmine it will find itself is in the sense that it might be impelled to withdraw the motion before this court which contained a prayer for a stay of execution to avoid being accused of abuse of court process. If it does the time of fifteen days allowed it to file application for stay of execution after refusal by the court below must have expired before the other application is disposed of in the court below. The problem of seeking extension of time to file or renew the application for stay of execution would roar its ugly head. In the meantime, the respondents could have completed the execution of the judgment. In the peculiar circumstance of this case which I have analysed above, the applicant should not in the interest of doing substantial justice be pushed into what may turn out to be a mere circus show.

The last of the obstacles respondents intend to place on the path of hearing the application on its merit is one concerning competence of this court to hear the relief sought under the Sheriffs and Civil Process Law at all. I agree with the learned counsel for the respondents that Section 53 of the Sheriffs and Civil Process Law (supra) did not confer this Court with jurisdiction to entertain the relief sought thereunder and that the same cannot be conferred by the principle of interpretation of ejus dem generis. However, I disagree with his postulation that on the strength of the dictum of Tobi, J.C.A. in Onagoruwa’s cases (supra) this court’s jurisdiction to entertain mattes under that law is thereby ousted. I am not surprised and no one conversant with the constitutional structure in the country which is federal would be surprised either. The Oyo State Legislature in a federal system such as ours is incompetent to legislate on matters reserved for federal and vice versa. If the Oyo State Legislature had or pretends to cloak this court, a court that is created by a federal legislation with jurisdiction such an exercise would have been in futility. It would have been null and void ab initio. See the case of Adamolekun v. Council of University of Ibadan (1968) NMLR 253.
This is by no means the end of the road. I think, If I may say, the federal legislature took over from where that of the state stopped by virtue of Section 16 of the Court of Appeal Act Cap. 75 of the Laws of the Federation of Nigeria, 1990. The ample provisions of that section squarely meet the circumstance of this application. The section empowers this Court to exercise the powers of the court of first instance as if the action before the court were instituted in this Court as court of first instance. Section 16 of Cap. 75 reads inter alia thus-
“16 The Court of Appeal may from time to time … and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal the court of first instance ….
I am strengthened in this view by the dictum of the Supreme Court in the case of Oshoboja v. Amuda (1992) 6 NWLR (Pt. 250) 850 at page 708 where Uwais, J.S.C. said:-
“There is no doubt that Section 16 has given the Court of Appeal amplitude of power to deal with any case before it on appeal. The power includes the jurisdiction of a court of first instance and in the present case the jurisdiction of the High Court. This is not in doubt whatsoever.”
The power under Section 53 is exercisable by the court of first instance both before and after judgment had been delivered. Consequently this court can do same. It is not the contention of the learned counsel for respondents that the power is not exercisable by the court below after judgment. It is ipso facto no longer open to him to contest this Court’s jurisdiction, on the strength of the authorities I have placed reliance upon, to entertain the relief being sought pursuant to Section 53 of the Sheriffs and Civil Process Law (supra).

Having disposed of all the preliminary issues, I am to consider whether or not the applicant has made out a case to justify the court granting the relief sought under Section 53 of Cap. 117. Section 53 reads as follows:-
“53. The court may, upon such investigation as aforesaid, make an interim order for the protection of any property applicable or available in discharge of the judgment debt, as it shall think expedient.”
The section allows court to make an interim order pursuant to an investigation. I am not aware of any investigation carried out by either this court or the court below nor have my attention been directed to one.

But the word “aforesaid” seems to say an investigation carried out in accordance with the provisions of Section 46, 47, 48, 49, 50, 51 and 52 of Cap. 117. All the sections to be complied with in carrying investigation as well as Section 53 are contained in Pt. 4 of Sheriffs and Civil Process Law (supra) which is titled “Judgment Summons”. There is no application for judgment summons by the judgment creditor to recover judgment debt from judgment debtor who has defaulted as prescribed in Section 45 of Cap. 117. In the absence of an investigation predicated upon a judgment summons an interim order of the type prescribed under Section 53 of the Sheriffs and Civil Process Law cannot be made. That relief is not made out and it is consequently refused by me.

The other reliefs sought by the applicants are a stay of execution pending the determination of the appeal brought by the applicant which is still pending in this court and an order for injunction. The ability of the court to grant either relief revolves round the same principles: Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266.
The principles for making an order for a stay of execution appear settled by a long line of cases. The case of Vaswani Trading & CO. v. Savalakh Co. (1972) 12 SC 77 is easily the locus classicus. The Supreme Court per Coker, J.S.C. set down the principles as follows at page 81 of the report-
“When the order or judgment of a lower court is not manifestly illegal or wrong, it is right for a court of appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary is to be proved or established and for this reasons the Court of Appeal and indeed any court, will not make practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. See in this connection the observations of Bowen L.J. in The Annot Lyle (1886) 11 p. 114 at 116)… where it is stated that the circumstances or conditions for granting a stay should be special or strong we take 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 helplessness 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 to appeal, or generally provide a situation in which whatever happens to the case and in particular even if appellant succeeds in the Court of Appeal, there could be no return to the status quo.”
The learned author of the practice and procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, Aguda at paragraph 44.29 page 535 of the first Edition of the book noted the following principles:
“In considering whether or not to grant a stay pending on appeal, the Court will take into consideration the following points:
(a) The chances of the applicant on appeal, If such chances are virtually nil, then a stay may be refused: Vaswani Trading & Co. v. Savalakh & Co. (1972) 12 SC 77; Wey v. Wey (1975) 1 SC 1. See also Olusesan Shoge v. Latifu Musa (1975) 1 NMLR 133, and Odufuye v. Fatoke (1975) 1 NMLR 222.
(b) The nature of the subject-matter in dispute; whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case: Dr. T.O. Dada v. The University of Lagos & Ors (1971) 1 University of Ife 344; Utilgas Nigerian & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 SC 105; (1974) 1 All NLR (Pt. 2) 47.
(c) Whether if the appeal succeeds, the applicant will not be able to reap the benefit of the judgment on appeal. See Wilson v. Church (No.2) (1878) 12 Ch. D. 454, 458.
(d) Where the judgment is in respect of money and costs whether there is a reasonable probability of recovering these back from the respondent if the appeal succeeds: Lawrence Ogobegu Ebegbuna v. James Omotunde Gbegbuba (1974) 3 WACA 23.
Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting his appeal: Nwajekwu Emefisi & Ors v. Michael Mbanugo & Ors. (1970-71) 1 ECSLR 100. A stay may be ordered in respect of the sum payable, whilst an order for the payment of the costs to the counsel for the successful party is made on his giving an undertaking that he personally would refund the sum of money in case the appeal succeeds. See Wilson v. Church (No. 2), ante.”
In granting a stay of execution, the court exercises a discretionary power which must be exercised judiciously and judicially. One of such instances which warrant both the issue and the parties abiding till the determination of the legal issues is when the judgment creditor as in the instant application alleges impecuniosity on the part of the judgment creditor. The learned trial Judge in rejecting the application concluded as follows:
“In effect, while to grant this application will surely spell the doom of the business of the judgment creditor – what with the constantly depreciating value of the national currency – the naira – the fear of the judgment debtor regarding the loss of the res should the result of the appeal be in their favour and the success rendered nugatory would appear to me to be unreal and unjustified, the judgment debtor being still in possession of most of the documents of the assets of the judgment creditor – assets which would continue to appreciate.”

This conclusion appears to be unmindful of the case presented through affidavit evidence by both parties. It is the case of the applicant that the respondents are insolvent as it had never filed statutory annual returns with the Corporate Affairs Commission since its inception in 1979.

To show that the first respondent is solvent one Jonny Chete, its General Manager averred as follows in the counter-affidavit –
“5. That the value of the fixed assets (landed properties and machineries) of the 1st plaintiff/respondents located at Akewe village, off Aiyetoro Road Abeokuta, Ogun State is more than the judgment awarded to the plaintiff/respondent in this case.
9. That the P.W.3 Odu – stated in his report which is part of the record in this case that the assets of the 1st plaintiff/respondent are worth over N5.5 Million.
10. That the value of the mortgaged properties of the 2nd plaintiff/respondent, the Title of Deeds of which are still in the possession of the 1st defendant/applicant is more than the judgment debt awarded in favour of the plaintiff/respondents.
11. That I know as a fact that the plaintiff/respondents are not indebted to anybody and also not insolvent.
12. That the plaintiff/respondents are desirous of using the judgment sum if paid as working capital) so as to fully employ and utilize the fixed assets of the plaintiff/respondents and would be in a position to repay the judgment debt if the appeal eventually succeeds.
(italics mine)

Paragraphs 8 and 9 which deal with the same assets were not substantiated. The appeal is not yet entered. The record of proceedings is not in this court hence it is impossible or impracticable for me to ascertain the value of the assets. Paragraph 11 to my mind means nothing: it is neither here nor there. Paragraph 12 is an admission of applicant’s averment that the res could be destroyed and thereby renders their appeal nugatory in event of their appeal succeeding in this Court. Not only that the first respondent is required to establish its solvency independently of the res. The res which it wants to put at risk by further investing, a situation applicant is resisting, is not part of first respondent’s assets. The title Deed deposited is there for a purpose to secure the agricultural credit loan and not judgment debt. If the judgment debt were to be paid to the first respondent and the appeal succeeds it would tantamount to additional loan. Is there evidence, apart from the speculation of the learned trial Judge that the property would appreciate, that the appreciation would be sufficient to cover the judgment debt as well as the agricultural credit loan the primary reason for putting the applicants in possession of the Deeds?

I can think of no better evidence from which insolvency of a limited liability company can be inferred than that it failed to comply with a statutory requirement to file annual returns since its incorporation in 1979. This piece of affidavit evidence has not been denied in this Court. I am not unaware of paragraph 11 of the counter-affidavit deposed to by the same Johnny Chete in opposition to the application for a similar execution in the court below. It reads:-
“11. That the plaintiff/respondent temporarily stopped filing its annual returns when the defendant/applicant wrongfully withheld its working capital.”

Implicit in this assertion is that the respondents had hitherto been filing returns on behalf of the first respondent until the applicant stopped its working capital. Does it not behove the respondents to produce some of the previous returns filed with the Corporate Affairs Commission?
The burden to prove is on the party who asserts and in the circumstance of this case the respondent did: See Section 135 of the Evidence Act Cap. 112 of the Laws of the Federation, 1990.

I have done all these to demonstrate that the respondents had not shown that it is in a position to refund the judgment debt in event of a successful prosecution of the appeal. The applicant’s fear that its appeal may be rendered nugatory if the res which is the judgment debt is not preserved appears justified.

Finally, my hands are further strengthened by Section 15 of the Agricultural Credit Guarantee Scheme Fund Act on which the learned trial Judge found as follows:
“But perhaps more importantly is the fact that the loan facilities were granted and perfectly understood to have been granted under the Agricultural Credit Guarantee Scheme Fund Act which provides as follows:
“15. All legal proceedings of a civil nature arising from the failure of any borrower to repay a loan granted by a bank and guaranteed under this Act or arising from any matter pertaining to any guarantee given pursuant to this Act shall be instituted and conducted by or against the Board.”
I am of the view that the Defendant bank could not properly institute any legal proceedings for the recovery of the fund provided under the Scheme.” (Italics mine)
And if I may add so also it is incompetent to defend any legal proceedings of civil nature arising from a borrower’s failure to repay a loan so granted. The two actions of the respondents which the learned trial Judge acceded to directly flow from the default of the respondents to repay the loan which the first respondent borrowed from and lent to it by a bank, Union Bank of Nigeria Limited. If the learned trial Judge is correct in striking out the applicant’s action for the reasons given does equity not demand that she should have considered applying the old adage of what is good for the goose is good for the gander? I do not propose to go any further into the matter because application such as this must not decide issue or issues in the appeal. It appears a question of competence of the two suits instituted by the respondents may call for determination on appeal.

There is a potent question raised by the respondents’ counsel to the competence of this Court to stay execution of judgment which had been executed or levied. I think in certain circumstances such as when issuance of a writ of execution or attachment amounts to an abuse of the process of the court or overreaching the other party, execution that has been carried out can be set aside.

The appellant appealed timeously against the decision of the court below and applied for an order of stay of execution in the court below. That application was disposed of on 5th October, 1993 by the learned trial Judge who refused same. On 7th October, 1993, barely two days after refusal of the application for a stay of execution and before the applicant could apply to this Court, a writ of attachment had not only been issued but had also been executed with military precision in complete disregard of the provisions of Section 18 of the Court of Appeal Act (supra). Section 18 of Cap. 75 provides that:-
“18. An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.” (Italics mine)
Notwithstanding that the applicant had 15 days after the refusal by the court below to renew its application in this Court by virtue of Order 3 rule 3(3) of the Court of Appeal Rules, 1981 the respondents stultified that right. Inspite of this, the applicant remained undaunted. It still went ahead to file its motion of stay of execution dated 7th October, 1993 the very day their property were being attached, on 8th October, 1993. The respondents’ conduct to my mind constitutes abuse of court process and must not be allowed to stand. The respondents should have abided by the expiration of the period of grace given to the applicant. The respondents’ pre-emptive strike is not only deliberate but also offensive as well as being irregular; it is intended to over-reach the applicant. The Supreme Court in considering Section 24 of the Supreme Court Act which is in pari materia with Section 18 Cap. 75 in Vaswani Trading & Co. (supra) at pages 82 – 85 said thus
“… the court, and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the court to assume that role. In Sanni v. Odesanya (supra). In circumstances not dissimilar, this Court ordered the setting aside of the writ of possession already executed and returned the parties to the original statue quo pending the determination of the substantive motion for stay of execution. In circumstances which are comparable the West African Court of Appeal once observed as follows:-

“In our opinion there is substance in the point raised by counsel for the appellants. In view of the fact that there was an appeal pending in a suit involving ownership of the land which is the subject of the present suit the proper course for the learned trial Judge to have adopted would have been to adjourn the case pending determination of the appeal, with liberty to either side to apply for the hearing to be continued. To do otherwise would work an injustice to the appellants in the event of their appeal No. B of 1949 being successful, as they could not them renew their claim in the present suit.” (See per Foster-Sutton, p. in Shekoni v. Ojoke (1954) 14 WACA 504).

In the present case there is no doubt that the writ was executed and possession wrestled from the applicants whilst their motion to this Court for a stay of execution was pending and awaiting a date to be assigned by this Court for the hearing of the application. It is true and correct to observe that the Notice of Appeal filed would not operate as a stay of execution and Section 24 of the Supreme Court Act makes this more clear: but it is equally correct to point out that the section does not prescribe in favour of any execution being carried out during the pendency of an appeal. Indeed, by its provisions it postulates that during the pendency of an appeal the Supreme Court has got the jurisdiction to accede to an application for a stay of execution conditionally or otherwise. The section does not give any licence, directly or indirectly, for the issue and execution of any processes which may ultimately be offensive. The section simply delimits the scope of the statutory position of the parties after the filing of a Notice of Appeal. Clearly therefore to employ this section as a springboard for the issue and process of an inopportune execution would be an abuse of the process of the court. Speaking of the altitude of the courts to an abuse of process. Lord Blackburn said in The Metropolitan Bank Ltd. etc. v. Pooley (1885) 10 A.C. 210, at p. 220:-
“But from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse…”
(See also Logan v. The Bank of Scotland No.2 (1906) 1 KB 141) we think that in the circumstances of the present case, the action of the respondents constitutes an abuse of the process of the court.”
I am bound by this decision and respectfully follow it.

In the result, the application for stay of execution succeeds and is accordingly granted. I therefore make the following orders:-
(a) The judgment of Kuforiji, J., delivered on July 26, 1993 is hereby stayed pending the determination of the appeal presently pending in this court, and
(b) Release of applicant’s property against which Writ of Attachment were levied or executed on 7th October, 1993 including all the vehicles removed from its promises, subject of course to the applicant investing the judgment debt in an interest yielding account at its Abeokuta Branch with the title ‘Deputy Chief Registrar’ and deposit evidence of such investment with the Deputy Chief Registrar. Court of Appeal, Ibadan, within fifteen days hereof.

I make no order as to costs so as not to further compound the respondents’ problems.

Other Citations: (1994)LCN/0180(CA)