Arch Daniel Obaro V. Dantata & Sawoe Construction Company Ltd. (1997)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
This is an appeal against the reserved and considered ruling of Bage, J., delivered on 19th October, 1995 granting an order for a conditional stay of execution of the judgment delivered on 20th July, 1995 ill the Federal Capital Territory High Court. The appellant herein who was incidentally the plaintiff in the court below per his final amended statement of claim claimed against the respondent herein a total sum of N417,500.00 being special and general damages arising from negligence of the respondent. After hearing of the case, the learned trial Judge awarded to appellant a sum of N165,000.00 as special and general damages together with costs assessed at N2,000.00. The respondent herein being unhappy with the judgment filed a notice and grounds of appeal against the decision on 24th July, 1995. On the same day, he filed a motion on notice praying for stay of execution of the judgment which application was argued or canvassed on 14th September, 1995. The plaintiff is dissatisfied with the ruling of 19th October, 1995, staying the execution of the judgment delivered on 20th July, 1995. In the notice of appeal, learned counsel for appellant adumbrated three grounds of appeal. The grounds read as follows:-
- The lower court erred in law in making an order directing the defendant/judgment debtor/Applicant to pay the judgment debt and costs to the Chief Registrar of the court within one month, or at all, when:
(a) there was no such prayer before him;
(b) in law, the court, not being a father Christmas, cannot grant a relief not sought by either party before him;
(c) he did not give the parties a hearing in respect thereof; and
(d) order 46 rule 2(2) of the High Court Rules on which he relied is no authority for arbitrary and capricious exercise of judicial discretion; by reason of that error deprived the plaintiff/judgment creditor/respondent (the appellant herein) of the fruit of his victory in the case.
- The lower court erred in law in failing to exercise his discretion to grant an order for stay of execution (albeit conditionally) judiciously and judicially, in that:
(a) the court having held that the affidavit in support of the application offends the provisions of the Evidence Act and therefore useless, there was no material whatsoever before him on the basis of which he could judiciously and judicially exercise any discretion to grant the application (whether conditionally or otherwise);
(b) in law the court can only exercise its judicial discretion on the basis of material properly placed before him and not capriciously or arbitrarily.
(c) the only ground for the application for stay of execution was that “the grounds of appeal (filed) raise substantial and arguable points of law”; which grounds of appeal the learned trial judge held did not raise any “serious or recondite issue of law.”
(d) it was never alleged that if the judgment debt and cost were paid to the judgment creditor/respondent (appellant herein) it might be difficult or impossible to recover same from him if the appeal succeeded; and
(e) indeed the appellant (herein) categorically asserted in his counter affidavit that he would have no difficulty in refunding the judgment debt and cost in the unlikely event of the appeal being successful; which assertion was never refuted by the respondent herein.
- The judgment is against the weight of the evidence.”
The learned counsel for both parties in compliance with the provisions of order 6 of the Court of Appeal Rules filed and exchanged briefs of argument. In the respective briefs, issues calling for determination were identified. The only issue framed in the appellant’s brief read as follows –
“Having regard to the relief sought in the application for stay of execution, the affidavit evidence before the court and the findings of the learned trial Judge, whether the learned trial Judge properly exercised his judicial discretion in granting the application for stay of execution, albeit conditionally?”
The respondent who was the applicant in the court below identified the issue set out immediately here under in its brief –
“whether the trial court in this case exercised its discretion properly by granting a conditional Stay of execution of its judgment.”
At the hearing of the appeal, learned counsel for appellant adopted and relied on the appellant’s brief. He further elucidated on the brief. Similarly the respondent’s brief was adopted and relied upon by its counsel who also briefly replied to oral submissions of learned counsel for appellant.
Both counsel in the respective briefs recognized that the ruling of the learned trial Judge granting a conditional Stay of execution is an exercise of discretion by the court which should exercise it judiciously as well as judicially and not capriciously. See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Arojoye v. United Bank for Africa Limited (1986) 2 NWLR (Pt.20) 101, 111. It is equally true that exercise of discretion by the lower court would not be set aside on appeal except it is demonstrated that it has been exercised arbitrarily or illegally; without due regard to all necessary considerations or with regard to unnecessary factors; or in bad faith or relying upon wrong principles. See National Bank of Nigeria Limited v. Guthrie Nigeria Limited (1993) 3 NWLR (Pt. 284) 643, cited in the respondent’s brief of argument.
It is pertinent, at this stage to consider whether the court below in exercise of its discretion acted in an arbitrary manner or relied upon wrong principles as was being contended by the learned counsel for appellant both in his oral and written submissions before us. In this connection, learned counsel for appellant cited the case of S.T. Fakoya & others v. Adeniyi Taiwo (1991) 8 NWLR (Pt.413) 374. He commends to us the judgment as laying down the principles which should guide a court in its consideration and determination of an application for a stay of execution. At pages 380-1 this court per Salami, J.C.A., said-
“The principles governing granting of a stay of execution or injunction pending appeal are very well settled in the locus classicus case of Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77 where 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 be proved or established and for this reason the Court of Appeal and indeed any court, will not make a 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, LJ., in The Annot Lyle (1886) 11 P.114 at 116). 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 helplessness or render nugatory any order or orders of the Court of Appeal or paralyze, 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.” (Italics mine)
At page 535 paragraphs 4-29 of the first edition of Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria the learned author, Dr. Aguda noted a number of applicable principles governing granting of a stay of execution. The principles read as follows –
“(a) The chances of the applicant on appeal: if the chances are virtually nil, then a stay may be refused: Vaswani Trading Co. v. Savalakh and Co. (1972) 12 S.C. 77; Olusesan Shoge v. Latifu Musa (1975) 1 NMLR 133; W.A.C.A. 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 & others (1971) 1 U.I.L.R. 344 and Utilgas Nigeria & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S.C. 105.
(c) Whether if the appeal succeeds the applicant will not be able to reap the benefit of the judgment or appeal. See Wilson v. Church (No.2) (1879) 12 Ch.D. 454
(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 Ogbobogu Ebegbuna v. Janet Omotunde Ebegbuna (1974) 3 WACA 23.
(e) 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 Emejisi and others v. Michael Mbanugwo and others (1970-71) 1 E.C.S.L.R. 100.”
The instances given by the learned author is by no means exhaustive. Another instance when an application for a stay of execution can be granted is when the ground of appeal raises a substantial point of law which warrants the issue and the parties abiding the determination of the legal issues. In Vaswani’ s case (supra) the Supreme Court opined that it would consider granting a stay of execution where the grounds of appeal filed do raise vital issue of law and there are substantial issues to be argued on them”. Also in Balogun v. Balogun (1969) 1 All N.L.R. 349, 351 the Supreme Court held that where a ground exist raising a substantial issue of law is to be determined on appeal in area in which the law is to some extent recondite and where either side could have judgment in his favour a stay of execution must be granted. There was an attempt to confine this exceptional circumstance to matrimonial causes in the case of Okafor v. Naife (1987) 4 NWLR (Pt.64) 129, 130. But the departure from the case of Balogun v. Balogun (supra) in the case of Okafor v. Naife was short lived because the Supreme Court seized the advantage of the case of Martins v. Nicannar Food Co. Limited (1988) 2 NWLR (Pt.74) 75 to explain off the departure. Nnamani, J.S.C., at page 84 of the reports further restored the authority of Balogun’s case when he said:-
“……………. I think this court was swayed in Nnaife’s case by the fact of that case which involved continuous acts of trespass. In a case in which a substantial point of law, such as on jurisdiction, does arise Balogun’s case would still have full force. These cases have been followed by myriads of cases in this court and other courts. See Utilgas v. P.A.B. (1974) 10 S.C. 105; Kigo Nig. Ltd. v. Holman Brothers Ltd. (1980) 5-7 S.C. 60 and El Khalil v. Oredein (1985) 3 NWLR (Pt.12) 371 C.A…” (Italics mine)
It is necessary now to examine the case made out by the respondent to justify the discretion of the court being exercised in its favour. The exceptional circumstance established or excuse proffered by the respondent in its quest for a stay of execution can be found in paragraphs 5 and 6 of the affidavit in support of the motion. It was averred on behalf of the applicant by one John Ambi, litigation secretary, in the firm of Cosmic Chambers, Solicitors to the respondent herein that it had appealed the decision giving rise to the application for a stay of execution. Exhibited to the affidavit are the copies of the receipt issued to the respondent on filing the notice and grounds of appeal as well as the notice and grounds of appeal. Paragraph 6 of the said affidavit reads thus –
“That I was informed by Valentine Ogar Esq. counsel to the applicant and I verily believe him that the grounds of appeal raised substantial and arguable points of law.”
The excuse put forward for grant of stay of execution is based on substantial point of law as in the case of Balogun. The only excuse advanced for seeking the relief was considered by the learned trial Judge who was clearly not impressed by the reason advanced by the respondent. The learned trial Judge, therefore, had no difficulty in rejecting the case after properly directing himself in the following terms-
“The court on its own part has examined the submission of counsel on both sides. The issue of grant of a stay of execution of judgment of the court is a discretionary power given to the Judge. As to how the court is to exercise the said discretion, this position has been carefully set down by Nnamani. J.S.C., of blessed memory in the case of Martins v. Nicannar Foods Co. Ltd. supra referred to by both counsel. My Lord said:
“The court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating that the parties and issues being in status quo until the legal issues are resolved.”
I have looked at the application before (sic) the grounds of appeal thereto. I have not seen where it involves a substantial point of law. There is also no serious and recondite issue of law in the grounds of appeal attached to the affidavit in support of the motion.”
The respondent has not appealed against this finding therefore it subsists. The learned trial court having found as set out in the above passage ought to have refused the application for stay of execution because the finding tantamounts to the parties and issue not being in status quo ante bellum to warrant the issue abiding the outcome of the legal issues. Inspite of this startling finding in respect of the respondent’s only excuse the learned trial Judge went ahead to find as follows-
“Having placed the defect of the affidavit in support of the application as a background, and also considering the fact that the right of appeal is fundamental and short comings on the part of counsel should not ordinarily constitute a bar to such an exercise by applicant. The court considered justice must be done to the case. Justice is a two edged sword. It should be done to both parties. The court has decided by virtue of Order 46 rule (2) of the HCCPR FCT 1991 to allow the condition that the judgment debt plus all the costs shall be paid by the applicant to the Chief Registrar of this High Court who shall pay it into an interest yielding account”
Clearly, the learned trial Judge, respectfully did not only quibbled but also blunder. Order 46 rule 2 sub-rule (2) of the High Court of the Federal Capital Territory (Civil Procedure) Rules No. 56 of 1989 does not set out the exceptional circumstances or grounds under which a stay of execution can be granted. The order cited in support of the decision of the court stipulates the procedure for bringing an application for stay of execution and court discretion to either grant or refuse same and where court is mindful of granting a stay of execution the nature of stay it could grant, whether conditional or otherwise. Order 46 rule 2 sub-rule (2) reads as follows –
“(2) An order for stay may be made subject to such conditions, as shall appear just, including the deposit in court of any money adjudged due to any party in the judgment appealed from”
The learned trial Judge, in the circumstance of this case, would appreciate that it is not just to lock up the fund to which the appellant is prima facie entitled to after he had carefully weighed the competing interests of the parties and found that the only ground on which the appellant’s case rested crumbled like a pack of cards. The discretion of the court would be exercised in favour of respondent herein only where there is exceptional circumstance justifying the exercise of the power because a successful litigant is entitled to the fruits of his victory and a stay of execution would not be granted if the result of granting it would operate to deny or deprive such a party of the fruits of his success. That is the justice of this case any other thing is arbitrary or unjust. The respondent woefully failed to show that it was entitled to a stay of execution. I agree with learned counsel for appellant that the court can only exercise its discretion on materials properly placed before the court. See Williams v. Hope Rising Voluntary Society (1982) 2 S.C. 145, 152 where Idigbe, LS.C. quoted with approval the dictum of Edmond Davies LJ., in the case of Revici v. Prentice Hall Incorporated & others (1969) 1 All E.R. 772, 774 that-
“Prima facie if no excuse is offered no indulgence should be granted.”
It is apt, at this stage, to commend to the learned trial Judge the admonition of Eso, J.S.C., that-
“a stay of execution is never to be used as substitute for obtaining the judgment which the trial court has denied him,.” See Nnaife’s case (supra) at 138.
The respondent herein did not contend in the trial court that the appellant is impecunious and he would be unable to refund the judgment debt in event of the appeal succeeding. Notwithstanding the appellant copiously showing that as an architect often year standing and in an unlikely event of the appeal succeeding he would have no difficulty in refunding the proceeds of the judgment of the court below, the question of impecuniosity was not an issue before the court below. That court rightly, in my view, did not decide the issue apparently because parties did not join issue on it before it. This court is primarily a court of appeal and not a court of first instance it can, therefore, not express an opinion on a matter the trial court carefully avoided however attractive the matter may appear to be. In the circumstance, that question is not capable of forming an issue in this court consequently all the argument canvassed thereon in the briefs are hereby discountenanced by me.
I disagree with the submission of learned counsel for appellant that the court is not father christmas and cannot grant or award a relief that was not asked for. The argument is not only irrelevant it is equally not apt. The conditional order of stay of execution made by the trial court, is supported by the provisions of order 46 rule 2(2) of the trial court’s civil procedure rules recited earlier in this judgment. It is clear from the enactment that the trial court in its absolute discretion can order a conditional or unconditional stay once it is satisfied with the excuse or exceptional circumstance canvassed by the applicant. In other words, in my respectful opinion, an applicant for a stay of execution does not have to ask for the variants of the relief separately.
The appeal succeeds and it is allowed by me. The decision of the court below in respect of the stay is hereby set aside hence the respondent’s application is hereby dismissed. The judgment debt and costs invested in an interest yielding account by the Chief Registrar of the court below should be withdrawn and paid to the appellant. There is an order as to costs which is assessed at N800.00 in favour of appellant.
Other Citations: (1997)LCN/0293(CA)
