Kopek Construction Limited V. Johnson Koleola Ekisola (1998)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A,
The appellant/applicant applied to this court by a motion on notice filed on 29/10/97 for the following order
“An order staying the execution of the judgment of Honourable Justice T.O. Adeniran of High Court of Justice Oyo State sitting at Ibadan Judicial Division delivered on May 30, 1996 on more favourable terms and conditions pending the determination of the appeal in this Honourable court in respect thereof.”
AND for such further or other orders as this honourable court may deem it fit to make in the circumstances.”
The appellant/applicant against whom judgment was entered in favour of the respondent by the lower court for the sum of N20m. (twenty million naira) had earlier applied to the said lower court for a stay of execution. In its ruling dated 2/10/97, a conditional stay was granted by the lower court upon a condition (or term) that the appellant and its Director Chief (Dr) Raymond Zard should jointly deposit with the Chief Registrar an irrevocable bond for the whole sum of the judgment debt (i.e. the N20m.) to be guaranteed by a highly reputable bank pending the determination of the appeal. The appellant was not satisfied with the condition imposed by the lower court and hence it applied to this court for the variation of the said condition as in the above prayer.
In moving the application, the learned counsel for the appellant/applicant Chief A. Delano (SAN) leading Mrs. O. Babayemi and E. Uweja reiterated the prayer in the motion paper which is for an application to vary an earlier order of stay of execution earlier granted by the lower court so as to make an unconditional order of stay or to impose the conditions or terms that are more favourable to the appellant/applicant. The learned senior advocate submitted that this court has the jurisdiction to make the variation sought for under its general and inherent powers. Reference was made by the learned counsel to Exhibit TU2 attached to the motion paper which is the ruling of the lower court containing the condition or terms for its grant of the earlier application for stay of execution which is as stated above. The cases of Bisi Oyeti v. Afolabi Soremekun (1963) 1 All NLR 349 at 359; Royal Exchange Ltd. & Ors v. Aswani Textile Ltd (1992) 3 NWLR (Pt. 227) I at p. 10; Union Bank Ltd & anon. Thomas Industries Ltd. (1996) 3 NWLR (Pt. 435) 189 at p. 194 were also cited in support of the submission. Reference was also made to the facts averred in the 3 affidavits filed by the applicant in support of the application and it was submitted that the special circumstance relied upon by the applicant is that if the applicant is made to pay the judgment debt which is a colossal amount (i.e. N20m), its business would be crippled. Learned counsel also submitted that the respondent will not be able to repay or refund the judgment debt in the event of the appellant’s success in the appeal and the judgment of this court will thereby be rendered nugatory. See Fawehinmi v. Akilu (1990) 1 NWLR (Pt. 127) 450 at p.471; and Orient Bank of Nigeria Plc v. Bilante Interbatuibak Ltd (1996) 5 NWLR (Pt. 447) 166 at p.185 cited by the learned Senior Advocate in support of the submissions. Reference was also made to Exhibit TU5 which is the notice of appeal, and it was submitted that the grounds of appeal therein are substantial and recondite. We were finally urged by the learned counsel to grant the application and vary or review the terms imposed by the lower court by either making an unconditional order of stay or making it conditional only upon the undertaking made by the applicant’s Director to pay the judgment debt if their appeal fails.
The learned counsel for the respondent R.O. Ayoola (Mrs) in reply to above submissions declared her opposition to the application. She referred to the 35 paragraphs counter-affidavit she filed in respect of her opposition and relied on all the paragraphs particularly (paragraphs 13-35 thereof). She submitted that the applicant has no chance of success in the appeal as its grounds of appeal are not recondite or substantial (vide Exhibit TU5). The learned counsel also submitted that the condition imposed by the lower court in its earlier order of stay is not unfavourable or onerous to the applicant. We are therefore urged not to interfere with the condition imposed by the said lower court in exercise of its discretionary power which was said to be done judicially and judiciously. We were also urged by the learned counsel not to deprive the respondent who was a successful party from enjoying the fruit of his success in the litigation in which judgment was given in his favour. It was further argued by the learned counsel that since the lower court did not order the payment of the whole or part of the judgment debt to the respondent, but only ordered for a bond to secure its payment by the applicant, the condition imposed by the said lower court was in order to maintain balance in the interest of both parties and was reasonable in the circumstances of the case. Thus it was argued that the question of the impecuniousity of the respondent does not therefore arise. We were also urged by the learned counsel for the respondent that if we are inclined to grant the applicant’s application and review or vary the order of stay by the lower court, the proper order to be made is that the judgment debt should be paid to the respondent. The learned counsel then referred us to the cases cited in the list of authorities she earlier filed (which contains some 15 cases or authorities) in support of her submissions. In particular she relied on cases nos. 2-5 in the list which can be reproduced as follows:
- Meny v. Nickalls (1873) L.R. 8 Chancery Appeal 205 at p. 206;
- Cooper v. Cooper (1875-76) 2 Ch. 492
- Morgan v. Elford (1976-77) 4 CH. D 352; and
- Hansard v. Lethbridge (1892) TLR 179.
It was contended by the respondent’s counsel that in this type of cases involving a liquidated sum of money as a judgment debt, it is the practice of the appellate court (i.e. this court) to order for the payment of the said judgment debt into the court pending the determination of the appeal. The learned counsel for the respondent finally urged us to hold that the applicant has failed to make out a case for a more favourable condition{s} for stay and to leave (undisturbed) the condition for stay as imposed or made by the lower court in its earlier order of stay.
I have considered the above submissions of learned counsel for the parties in the application. There is no doubt that this court has the jurisdiction and the discretion to vary the earlier order of the lower court for stay of execution under certain circumstances at the instance of the appellant/applicant who initially applied for an order of stay at the lower court. The respondent also may if not satisfied with the order of stay or the conditions imposed by the lower court in the earlier application appeal against it to this court for a possible variation. In either case, it is a matter for the discretion of the court which must be exercised judicially and judiciously- See C.G.F.C.S.P.A v. Nigerian Ports Authority& Anor (1972) 12 SC 107 at p.111; Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129 at p.136: First Bank of Nigeria Ltd v. Doyin Investment Nigeria Ltd. (1989) 1 NWLR (Pt. 99) 634 at p.640 in addition to the authorities cited by the learned counsel for the applicant. In the present application, it is the appellant/applicant who is not satisfied with the condition(s) imposed by the lower court and has thus applied for its variation. The complaint is that the said conditions is or are onerous or unfavourable to it and therefore requests for its variation to a less onerous term or terms and which will also be more favourable in the circumstances of his case. Consequently the pertinent question or issue in resolving the application is to review the condition imposed by the lower court and decide on whether or not it is onerous or unfavourable to the applicant. In doing so, the cardinal requirement under the principles of justice is to duly consider the respective and competing rights or interests of both parties in the application with a view to maintaining a balance in their positions and doing substantial justice to them. This is in accord with the need for a judicious exercise of discretion in dealing with an application for stay of execution – See Okafor v. Nnaife (supra); First Bank of Nig. Ltd. v. Doyin Investment Ltd, (supra); Akilu v. Fawehinmi (No. 2)(1989) 2 NWLR (Pt. 102) 122 at p.173.
Now the condition(s) imposed by the lower court in its ruling of 2/10/97 as can be seen at the end of Exhibit TU2 (pages 6-7 thereof) can be reproduced as allows:
“In the overall circumstances of this case 1 would and 1 grant the applicant’s application for a stay of execution provided of course the applicant and Chief (Dr.) Raymond Zard should deposit jointly with the Registrar on irrevocable bond of N20,000,000.00 (Twenty Million naira) as guarantee from a highly reputable bank until the determination of the appeal. “From the above conditional order of stay, one of the factors to consider is that the judgment debt involved in the case is the colossal sum (liquidated) of N20m. According to the facts deposed in the supporting affidavit, the respondent will not be able to repay or refund the said sum in the event that the appeal in this court, succeeds and this subsequent judgment will be rendered nugatory. I will agree that this is a ground which can ordinarily be considered in the grant of stay – see Phoenix Motors Ltd v. Omokeowa (1986) 3 NWLR (Pt. 30) 523 at pp. 526 – 527; Deduwa & Ors v. Okorodudu (1974) 1 All NLR (Pt. 1) 272 at p.274; and Wilson v. Church (No.2) (1879) 11 Ch. D. 576. However in the present case although there are depositions in both the supporting affidavit (paragraphs 10(a) -(c) thereof) and in the 2nd affidavit in support sworn to by Chief (Dr.) Raymond Zard (paragraphs 13(a) & (b) thereof) to the effect that the respondent who could not pay an earlier mortgage loan of about N153,000.00 would if given the judgment sum of N20m be unable to repay in the event of the appellant/applicant’s success in the appeal. It is my humble view that this deposition and the argument of the learned counsel in support thereof are misconceived. This is because as the above order clearly shows, the judgment debt is not ordered to be given to the said respondent. Even the applicant is not ordered to pay any money at all from the sum of the judgment debt but only to enter into an irrevocable bond for the guarantee of the payment of the said judgment if its appeal fails. For this reason, I am of the opinion that the order of the lower court or the condition imposed by it is not onerous appellant/applicant. It is also relevant here to note the depositions made by or on behalf of the applicant in paragraph 7 of the supporting affidavit which show that it is a very viable company and a going concern with numerous movable and immovable assets valued at over N500m (five hundred million naira) in the least estimation. It also has or maintains over 600 paid employees. Such a viable and prosperous company should even be able to deposit the sum of N20m if ordered to do so without being stilled or grounded as they claim in paragraph 12 of the said supporting affidavit. Thus the applicant appears to be approbating and reprobating in its deposition in the supporting and other affidavits.
From my above observations, it is clear that the appellant/applicant has not proved any exceptional or special circumstance to warrant the variation of the conditional stay earlier granted by the lower court. It is pertinent to state the trite law at this juncture, that an applicant who has been granted a conditional stay by the lower court has a more onerous burden of proving that the conditions or terms imposed by the said lower court are onerous and they thus deserve to be varied. This is in addition to the earlier burden or hurdles he has passed at the said lower court when he asked or sought for its exercise of discretion in his favour which was or has been conditionally granted- See Sentinel Assurance Co. Ltd v. S.G.B.N. Ltd. (1992) 2 NWLR (Pt. 224) 495: Ratisco (Nig.) Ltd v. Societe-General De Surveillance S.A (1990) 6 NWLR (Pt. 158) 608; and Ladipo v. Aminike Investment Co. Ltd. (1998) 4 NWLR (Pt. 546) 496 at p. 502. Thus in the present case in my view the applicant has not discharged the onerous burden as required and has not proved that the conditional stay ordered by the lower court deserves to be varied. Furthermore, I have seen the grounds of appeal filed by the applicant which in my view are far from being substantial or recondite as they are required to be in an application for stay of execution – See Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75. The 13 grounds filed by the applicant (including the omnibus grounds) are quarrelling or complaining about evaluation of evidence by the learned trial judge and his award of damages. These are common grounds which raise normal or regular questions to be decided as opposed to substantial or questions where the law is recondite. See Balogun v. Balogun (1969) 1 All NLR 349 and Phoenix Motors Ltd. v. Omokeowa (supra at p.527 of the report).
In the case of respondent in the present application on the other hand, he has a subsisting judgment in his favour which apart from the conditional stay order of the lower court will entitle him to immediate payment of the judgment debt (i.e. the fruit of his success in the litigation). Even by the order of conditional stay by the lower court, the judgment debt (or any pan thereof) will not accrue to the said respondent, rather, the applicant is only ordered to deposit a bond of bank guarantee. I think this conditional order of the lower court is not only fair but was more favourable to the applicant than 10 the respondent. It is also the practice in the appellate courts in this type of application where the judgment debt is a liquidated sum of money to order its payment into an interest yielding account pending the determination of the appeal. This will secure the interests and reduce the fear of both parties pending the determination of the appeal. Whoever wins will at the end of the day take the proceeds (i.e. the principal sum of the judgment debt together with the accrued interest). The suggestion of the applicant that its Director Chief (Dr.) Raymond Zard will give an undertaking is not enough remedy in the circumstances of the case and will not maintain the balance between the parties in the case because there is no guarantee of honouring the undertaking. Besides, there will be no interest accrued under the undertaking and the respondent may at the final determination of the appeal end up not recovering the judgment debt and or the interests thereto. Hence there is nothing to secure or guarantee the undertaking. In the final analysis and in view of my above considerations, there is no merit in this application and it has failed. It is consequently refused and dismissed. The conditional order of stay made by the lower court is hereby affirmed. I also hereby award costs of N2,000.00 in favour of the respondent.
Other Citations: (1998)LCN/0438(CA)
