Agip Nigeria Plc V. Udom Ossai & Ors (2016)
LawGlobal-Hub Lead Judgment Report
PETER OLABISI IGE, J.C.A.
On 30th day of July, 1998 the Respondents to the appeal herein instituted this action against the Appellant at Port Harcourt Division of the Federal High Court claiming as follows:
N15,000,000.00 (Fifteen Million Naira) special and general damages for the negligence of the Defendant on the fire outbreak of March 1998 at the Nde Ogwuma Oil well of the Defendant, situate at Oguta L.G.A, Imo State.
The matter suffered transfers from Port Harcourt Division of the said Court to Umuahia Division and eventually to Owerri Division of the Federal High Court on 27th October 2010 where the suit was given a new number FHC/OW/CS/10/2011.
At the end of trial in the suit judgment was delivered on 27th day of June 2014 by Honourable Justice F. A. Olubanjo who held:
Indeed, upon a critical examination and consideration of the evidence placed before me, I am of the view that 16 years after the fire incident caused by the Defendants negligence occurred, the Plaintiffs are entitled to their claims the value of which would have been greatly eroded due to the loss
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in purchasing power of the Naira over this period of time. See IGHRERINIOVO V. S.C.C. NIG. LTD (supra). The 1st, 2nd and 3rd Plaintiffs are each entitled to N5m (Five Million Naira) as general damages from the Defendant for losses incurred as a result of the fire incident caused by the Defendants negligence between March and April 1998. The Plaintiffs claim succeeds and judgment is for the Plaintiffs. That shall be the judgment of this Honourable Court.
The Appellant was aggrieved by the said judgment and has by her Notice of Appeal dated 27th June 2014 and filed in the Registry of the Court below on the same date, appealed to this Court contending that the judgment of the Lower Court was against the weight of evidence.
The Appellant filed an Amended Notice of Appeal dated 2nd March, 2015 on the same date in the Registry of this Court and pursuant to the order of this Court granted in that behalf on 3rd March, 2015 the Amended Notice of Appeal was deemed properly filed.
It is here relevant to say that earlier on 24th day of October, 2014 the Appellant filed Motion on Notice dated same date seeking for the following reliefs
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to wit:
1. AN ORDER OF UNCONDITIONAL STAY OF EXECUTION (whether by garnishee proceedings or by any other mode of enforcement or execution of judgment whatsoever) of the judgment of the Federal High Court, Port Harcourt Judicial Division Coram The Honourable Justice F. A. Olubanjo delivered on June 27, 2014 in Suit No. FHC/OW/CS/10/2011: Udom Ossai & 2 Ors. v. Agip (Nig.) Plc. pending the determination of this appeal.
2. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Respondents, whether acting by themselves or their agents, servants or privies or such other persons however described acting on their behalf, from enforcing, whether by way of garnishee proceedings, even where under a different suit number from Suit No. FHC/OW/CS/10/2011: Udom Ossai & 2 Ors. v. Agip (Nig.) Plc. or howsoever otherwise, purporting to enforce, or taking any steps or action in purported enforcement of the judgment of the Federal High Court, Port Harcourt Judicial Division Coram. The Honourable Justice F. A. Olubanjo delivered on June 27, 2014 in Suit No. FHC/OW/CS/10/2011: Udom Ossai & 2 Ors. v. Agip (Nig.) Plc., pending the determination of this
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Appeal.
3. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Respondents from taking any steps, instituting or continuing any action or settling any Court process that would impede or stultify the Applicants right to the relief(s) sought in the Notice of Appeal filed on June 27, 2014, pending the determination of the Appeal to this Honourable Court.
It is supported by Affidavit of 13 Paragraphs and with two Exhibits attached. The Respondents filed counter Affidavit of 13 Paragraphs sworn to in this Court on 4th day of December, 2014 with an Exhibit attached.
The Appellant on 2nd day of March, 2015 filed further Affidavit of 23 Paragraphs with an Exhibit attached in this Court.
It is also pertinent to state that the Respondents also filed a Motion on Notice in this Court on 4th day of December 2014. It is dated 15th day of September, 2014. The Respondents motion seeks for the following:
“1. An order directing the Appellant/Respondent to pay into this Hon. Court, within one calendar week, the said sum of Fifteen Million, Four Hundred and Fifty Thousand Naira (N15,450,000.00), plus 4% interest on same accruing from the
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date of the judgment of the Lower Court, i.e, 27th June, 2014, to be held in trust by the Deputy Chief Registrar of this Hon. Court in an interest yielding bank account maintained in the name of the said Deputy Chief Registrar, pending the determination of the substantive appeal filed by the Appellant in this Court of Appeal.
AND FOR SUCH FURTHER ORDER or orders as the Hon. Court may deem fit to make in the circumstance.
The Respondents motion was supported by a 9 paragraphed Affidavit with one Exhibit attached. The Appellant filed counter Affidavit containing 7 paragraphs against the Respondents motion. In view of the contentious nature of the two motions this Court ordered parties to exchange written addresses and the two motions were consolidated to be heard together. The two motions were heard on 19th day of April, 2016 when the Learned Counsel to the parties adopted their written addresses.
M. E. UGBETA ESQ. adopted and relied on the Appellants written address of 7th day of July 2015 and Reply filed on points of law in support of Appellants motion filed on 24-10-14.
CHIDI B. NWORKA ESQ. relied on the Counter
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Affidavit filed against Appellants motion sworn to on 4th December, 2014 and his written Address against the Appellants motion dated 20th July, 2015 and filed on 21/7/15. He urged the Court to dismiss Appellants motion for stay of execution.
Nworka Esq then moved Respondents motion dated 15/9/2014 but filed on 4th December, 2014. He relied on the written Address in support of the motion which is dated 3rd June 2015 and filed on 7/7/2015. He adopted and relied on it in urging this Court to grant Respondents application.
M. E. UGBETA Esq. relied on the Counter Affidavit of the Appellant against the Respondents motion and his written Address dated and filed the 5th day of August, 2015.
I have earlier on reproduced the motion filed by the Appellant, AGIP (NIG) PLC on 24th day of October 2014. After stating the brief summary of the antecedent of this case and the motion filed by Appellant. M. E. Ugbeta submitted an issue for determination of Appellants application viz:
Whether from the totality of the materials placed before this Court the Appellant is not entitled to a stay of execution or injunction
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pending the determination of Appellants appeal now before this Court.
The Learned Counsel stated the conditions an Application for stay of execution or injunction must satisfy and he stated four and relied on the cases of NIKA FISHING CO. LTD. V. LAVINA CORPORATION (2008) 16 NWLR (PART 1114) 509 at 540 – 542 and AKILU V. FAWEHINMI (NO.2) (1989) 2 NWLR (PT. 102) 122. He submitted that the Appellant has in existence a competent appeal or leave to appeal. That having regard to the Amended Notice of Appeal filed on 2/3/15 the Appellant are by grounds 1, 3, 4 and 5 questioning the entire proceedings at the trial Court as well as the judgment delivered on 27/6/14. He relied on the cases of:
(1) LATISCO PETROLUEM (NIG) LTD & ANOR V. U.B.N. PLC (2009) 3 NWLR (PART 1127) 22 at 45
(2) TSA IND. LTD VS. KEMA INV. LTD (2006) 2 NWLR (PT. 964) 300 and
(3) A. G. RIVERS STATE V. IKENNA BEST (NIG) LTD (2005) 3 NWLR (PT 911) CA 1 at 19.
On balance of convenience, the Appellant opined that by the facts shown in Paragraph 12 of the supporting Affidavit balance of convenience is in Appellants favour. That the Respondents will lose
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nothing if the Application is granted.
On whether the Appellant has shown exceptional circumstances the Appellant relied on the cases of VASWANI V. SAVALAKH & CO (1972) 1 ALL NLR (PT. 2) 483 and BALOGUN V. BALOGUN (1969) 1 ALL NLR 349 at 351.
He relied on Paragraphs 12 – 14 of his written address that if execution of the judgment of Lower Court is not stayed and the appeal succeeds, it will be impossible to return to status quo and that the decision of this Court will be rendered nugatory.
For what amount to exceptional circumstances Learned Counsel to Appellant relied on AJOMALE VS. YADUAT (NO. 2) (1991) 5 NWLR (PT. 191) 266 at 291 B per NNAEMEKA AGU, JSC.
He urged this Court to note that grounds 3, 4 and 5 of the Amended Notice of Appeal shows exceptional circumstances existing to warrant the grant of stay of execution. He relied on the case of MARTINS V. VICANNAR (1988) 2 NWLR (PT 74) 75 at 85 and the SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD V. AMADI (2011) Vol. 5 – 7 (Pt. 1) MJSC 1. He urged this Court to grant the application.
In response to the above submissions CHIDI B. NWORKA Esq. relied on the
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Counter Affidavit of Respondents, and submitted that all the Appellant is doing is to extend its frustration it imposed on Respondents for 17 years. That there is nothing in the Appellant/Applicants application to grant the Appellants motion. That the application reveals itself as an abuse of Court process. That the Affidavit in support is legally incompetent and are full of unsubstantiated and unfounded opinions and beliefs. That it is unreasonable for the Deponent to equate a farmer as an automatic pauper who would not be able to refund N15 Million if Appellant should win the appeal. That Respondents have showed in their Affidavit that their yield in one year in a few years would cover the judgment sum. That the Affidavit in support offends S.115 of Evidence Act.
He relied on the cases of JOSIEN HOLDINGS V. LORNAMEAD 1995 1 SCNJ 133 at 144 and A – G ADAMAWA V. AFG (2006) ALL FWLR (PT. 299) 1450 at 15 of.
That it is not inconsistent with the law to examine grounds of appeal in considering application for stay of execution and or injunction pending appeal and that stay of execution or injunction would be refused where it turns
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out that the appeal is a frivolous one.
That the application constitutes an abuse of Court process if the facts and circumstances of this case are closely examined, and that the motion demonstrates a mala fide intent or ploy to simply frustrate and oppress the judgment Creditors/Respondents. He relied on the case of GLOBE MOTORS HOLDINGS LTD VS. HONDA MOTORS CO. LTD. (1998) 5 NWLR (PART 550) 373 at 381 – 382.
He urged the Court to dismiss the Appellants application. In reply on points of law the Learned Counsel to the Appellant contended that the Affidavit in support of the motion did not offend Section 115 of the Evidence Act 2011.
Now coming to the Respondents motion for payment into this Court the judgment debt of N15 Million, the Learned Counsel to the Respondents/Applicants nominated two issues for consideration of the Application of the Respondents to the appeal namely: –
1. Whether the Judgment Creditors are entitled to the interest now claimed
2. Whether it is in accord with the law, equity and justice to order the Judgment Debtor to deposit the judgment debt into Court.
On issue one, Chidi B. Nworka
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Esq. for the Respondents submitted that the interest claimed is as of right and the Respondents are entitled to it as of right which a final judgment confers on the person in whose favour it was awarded. He relied on the cases of:
1. HIMMA V. ALIYU (1994) 6 SCNJ (PART 1) 87 at 94.
2. UDOH V. ORTHOPEDIC HOSPITALS (1995) 7 SCNJ (PT. 2) 436 at 454.
3. OLATUNJI VS. OWENA (2008) 4 SCNJ 2014 at 282.
That interest should be payable whenever money is wrongly withheld from the one who is entitled to it. He cited and relied on the case of:
1. BERLIENT V. KACHALA (1995) 12 S.C.N.J. 147 at 161 – 162.
2. DANIEL HOLDINGS V. UBA (2005) 7 S.C.N.J 243 at 254.
3. IFEGWUV. U.B.N. PLC (2012) ALL FWLR (PT. 602) 1676 at 1704.
Nworka Esq. stated that the Judgment Creditors are also entitled under statute to earn interest on Judgment debt. He relied on Section 17 of the Judgment Acts, 1838 which he said is to the effect that every judgment sum attracts an automatic interest of 4%. He relied on the cases of:
1. BERLIENT V. KACHALA (1995) 12 S.C.N.J. 147 at 164 AND
2. DANIEL HOLDINGS V. UBA (2005) 7 S.C.N.J 243 at 254.
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Under issue 2 Nworka Esq. for the Respondents relied on the Supreme Court decision in AKINNOLA (1994) SCNJ (PART 1) 30 at 46 – 48 to submit that a party who is aware of a judgment of a Court of competent jurisdiction against him whether valid or invalid cannot be allowed to disobey or discountenance it unless and until such judgment or order is duly set aside by a Court of competent jurisdiction.
That rather than comply and obey the order of Court, the Appellant resorted to an appeal and a motion for stay of the judgment. That the motion filed by Appellant is obviously one intended for no other reason than to deprive the judgment creditors of the fruits of their success. That a judgment debtor cannot be allowed to retain judgment debt to the detriment of the judgment creditor relying on the cases of:
1. UNION BANK V. ODUSOTE BOOKSTORES (1994) 3 SCNJ 1 at 22
2. FBN PLC V. IMASUEM & SONS LTD 2006 ALL FWLR (PART 292) 47 at 62 -63
3. MOBIL PRODUCING (NIG) UNLTD V. UDO (2008) ALL FWLR (PT. 421) 951 per OMOKKRI JCA.
That such malicious conduct of judgment debtors should persuade this Court that justice of this situation
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requires that this application be granted, so that the judgment sum will be secured. That that has been the reason why the practice of Courts have been to order that the money be paid into Court for safe keeping for delivery to the eventual victor.
He urged the Court to grant the application.
In response to the above arguments on Respondents motion for payment of judgment debt to Court the Learned Counsel to the Appellant, the Respondent to the application, M. E. Ugbeta Esq. relied on the Appellants Counter Affidavit and distilled one issue for resolution of the Respondents motion namely: –
Whether the Judgment Creditors/Applicants have made out a case for the grant of the reliefs sought.
The Learned Counsel to Appellant/Judgment debtor submitted that the Respondents/Applicants have failed to furnish cogent and valid grounds in support of their relief for payment of interest on the judgment sum and an order of Court directing that the judgment sum be paid into Court.
That a careful examination of the motion shows that Applicants have not satisfied the preconditions for the grant of the application to enable this
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Court to exercise discretionary powers to grant their application as the sole reason according to Learned Counsel to the Appellant, upon which Respondents urged their application is their misconstrued perception that it is unjust and dangerous to leave a judgment sum in the custody of the judgment debtor. That the settled position of the law is that where the Court is called upon to exercise its discretion same should be exercised judicially and judiciously and that the Court must consider all relevant fact and circumstances surrounding the application. He relied on the case of EBONG V. IKPE (2002) 17 NWLR (PT. 797) 504 at 513 and C.B.N. V. OKOJIE (2002) 8 NWLR (PART 768) 48 at 53.
He said the Court should take into consideration all previous attempts by Appellants to forcefully wrestle the judgment sum from the Appellant/Respondent including commencement of a garnishee procedure in total disregard for the pendency of the instant appeal. He relied on paragraph six of the Counter Affidavit. That Applicants have thereby disqualified themselves from the grant of equitable relief sought as they must come to Court with clean hands. He cited and relied on the
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case of ANURUBA V. E.C.B. LTD (2005) 10 NWLR (PART 933) 321.
That Paragraphs 6 and 7 of the Affidavit in support of Applicants application are based on sentiment and a misunderstanding of the Constitutional right of a litigant to seek judicial redress on appeal. That the Respondents/Applicants want the Court to release judgment sum to them without first determining the Respondents appeal. That a Court is not swayed by sentiments in judicial deliberation relying on D.P.M.S. LTD V. LARIMIE (2000) 3 NWLR (PART 655) 138 at 157 B.
That the Respondents/Applicants have not disclosed sufficient reasons to justify the grant of their application. That they also failed to show by their Affidavit that they are entitled to interest. That the Court should discard the instant claim for interest. He relied on IFEGWU V. UNION BANK (2011) 16 NWLR (PART 1274) 55.
That it is curious the Applicants are asking this Court to vary the judgment of the Lower Court and award interest in their favour where same was not awarded by the Court below.
That this is contrary to the position of the law that a party seeking to challenge the judgment of a Court may approach
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the Court by way of an appeal or cross appeal to vary the judgment of the Lower Court and that it renders the Respondents motion incompetent. He also relied on IFEGWU V. UNION BANK supra 584 E. per Ariwoola JCA. He urged this Court to refuse the application.
Now the Learned Counsel to the Respondent had argued with respect to the Affidavit in support to Appellants motion filed on 24th October, 2014 that all the paragraphs particularly Paragraph 8 thereof offend the provisions of Section 115 of the Evidence Act, 2011 and that they ought to be struck out.
The question is when can it be said that an Affidavit contains extraneous matter by way of objection, prayer, legal argument or conclusion
The test to be adopted in discerning whether an Affidavit runs counter to provisions of Section 115 of the Evidence Act 2011 (formerly Section 87 of the Evidence Act 2004) can be found in the case of ISHAYA BAMAIYI VS. THE STATE & ORS (2001) 8 NWLR (PART 715) 270 at 289 C – F where UWAIFO, JSC put it lucidly as follows:
I think the legal position is clear, that in any affidavit used in the Court, the law requires, as
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provided in Sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true and shall not contain extraneous matter by way of objection, or prayer or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it in the form of evidence which a witness may be entitled to place before the Court his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It
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therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence, while conclusions should not be drawn by witness but left for the court to reach.
Thus it is settled that where an affidavit indulges in deposing to extraneous matters, legal or speculative conclusions instead of stating the hard facts the tendency is that such affidavits or part of its paragraphs may be struck out.
It is now necessary for me to reproduce the impugned paragraphs of the Affidavit in support complained about. They read as follows:
I, MICHAEL IWUOHA, Adult, male, Christian, Nigerian citizen, Legal Practitioner of No. 206B, Aba Road, Port Harcourt hereby make oath and state as follows:
“1. I am a Legal Practitioner and an Associate in the Law Firm of Aluko & Oyebode, Counsel to the Applicant in this application and I have the authority and corporate mandate of the Applicant to depose to this Affidavit on its behalf. I also have the consent of our Law Firm to depose to this Affidavit.
2. I am aware by virtue of my
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aforementioned position that on June 27, 2014, the Federal High Court, Owerri Judicial Division delivered its judgment in Suit No. FHC/OW/CS/10/2011: Udom Ossai & 2 Ors v Agip (Nig.) Plc. in favour of the Respondents herein. A copy of same is attached as Exhibit A.
3. Dissatisfied with the said judgment, the Applicant promptly field a Notice of Appeal against same. A copy of the Notice of Appeal filed by the Applicant against the decision of this Honourable Court is herewith attached and marked as Exhibit B.
Special circumstances warranting the grant of this application
4. That the Applicant has good, substantial and arguable grounds of appeal as can be gleaned from Exhibit B attached and is keenly desirous of prosecuting the appeal to a logical conclusion.
5. I believe that it is desirable and necessary that a stay of execution of the said Judgment is granted by this Honourable Court in order not to render nugatory the outcome of the Applicants appeal before the Court of Appeal should the appeal go in favour of the Applicant.
6. The judgment sum is substantial and I know that the
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Respondents are not in any position to repay the said sum to the Applicant in the likely event that the Applicant succeeds in its appeal.
7. That I reasonably believe that if the judgment sum of N15,000,000.00 (Fifteen Million Naira) together with costs of N450,000 (Four Hundred and Fifty Thousand Naira) is paid to the Respondents who are subsistent farmers, they will quickly proceed to apportion the money amongst themselves and in the likely event that the Applicant succeeds in its appeal, the Applicant will be left with a barren victory.
8. That the grant of this application will ensure that the subject matter of this appeal is not destroyed and also that this Honourable Court is not foisted with fait accompli.
9. The Applicant has a Constitutional right of appeal which it is keen on exercising and thus it is imperative that the Respondents are not allowed to do anything to stultify the exercise of such right by the Applicant.
10. Based on the facts in the proceeding paragraphs it would be fair, just and equitable if the reliefs sought by the Applicant are granted by this Honourable Court.
11. That it is in the interest of justice to
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grant this application as the Respondents will not suffer any hardship or injustice if the application is granted.
12. That the balance of convenience is in favour of the Applicant. Whereas the Applicant will be unable to recover the judgment sum if this application is refused and the Applicant succeeds in its appeal; the Respondent will still be able to recover the judgment sum in the event that this application is granted and the appeal is unsuccessful.
13. That I make this oath conscientiously believing same to be true and in accordance with the Oaths Act, Cap 01, Laws of the Federation of Nigeria, 2004.”
I am of the view that the above paragraphs of the Affidavit in support of Appellants motion do not run foul of Section 115 of the Evidence Act. The Deponent to the Affidavit as one of the Legal Practitioners to the Appellant deposed to facts within his knowledge. It is interesting to note that the Learned Counsel to the Respondent Chidi B. Nworka Esq. argued that the Affidavit in support of the Appellants motion is not legally competent and that all the paragraphs are of the unsubstantiated and unfounded opinions and
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beliefs of the deponent and legal arguments, yet the Counter Affidavit of the Respondents Paragraphs 2 thereof stated that:
That Paragraphs 1 – 3 of the Supporting Affidavit are correct. To me a careful and cumulative reading of the entire paragraphs of the Affidavit in support shows they do not offend the provisions of Section 115 of the Evidence Act. I call in aid the case of MR. D. O. ORJI VS. ZARIA INDUSTRIES LTD & ANOR (1992) 1 NWLR (PART 216) 123 at 151 A – G per OMO, JSC who said:
S. 86 of the Evidence Act which they are said to offend provides that:
An affidavit shall not contain extraneous matters, by way of objection, or prayer or legal argument or conclusion (Italics mine). That Court below (Per Achike, J.C.A.) concluded that:
I think the bulk of the paragraphs mentioned above appear to offend Section 86 of the Evidence Act.
Counsel for the Appellant in his brief has submitted that the paragraphs do not in any way offence against Section 86 of the EVIDENCE ACT. They can at best be treated as facts within the Appellants knowledge.
With
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the possible exception of Paragraph 22, I think, with due deference to the views expressed in the lead judgment, that his submission is well taken, and that the learned trial judge was wrong in holding that the other paragraphs offended against the provisions of Section 86 of the Evidence Act. It is my view that a mere conclusion, which is a statement of fact, within the knowledge of a deponent, does not offend against Section 86 of the Evidence Act. It is offensive if it is a legal argument or a legal conclusion.
I will now consider the two motions on the merits. I like to place on record that what the application of the Appellant seeks to do is for an unconditional stay of execution of the monetary judgment of N15 Million adjudged in favour of the Respondents by the Federal High Court Owerri Division on 27th day of June 2014 pending the final determination of Appellants appeal to this Court while the Respondents prays this Court to direct the payment of the aforesaid judgment sum and interest thereon into an interest yielding bank account to be maintained in the name of the Deputy Chief Registrar of this Court. In other words the judgment
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creditors are seeking for a conditional stay of execution of the said judgment.
Now a stay of execution has been defined and explained by the Supreme Court in the case of: T. S. A. INDUSTRIES LTD VS. KEMA INVESTMENT LTD (2006) 2 NWLR (PART 964) 300 at 313 G H to 314 A per Ogbuagu, J.S.C, who said:
What is a stay of execution It is now firmly settled that it is an interim order and does not possess the attribute of finality. In the case of Chief Shodeinde & Ors. Vs. The Registered Trustees of the Ahmadiyya Movement in-Islam (1980) 1 – 2 SC 16 (2011) FWLR (Part 581) 1065, it is stated that, is nothing more than one for suspension of rights i.e. the right which a Court had declared in favour of a Respondent and of course the preservation of property pending the determination of an appeal from a judgment in respect of that right and/or property. A stay merely arrests further action by the Court itself in the suit. It only prevents the Plaintiff or beneficiary of the judgment or Order, from putting into operation, the machinery of the law i.e. the legal process of warrants of execution and so forth. See also the
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cases of Alhaji Umaru Tukur Vs. Govt. of Gongola State (1989) 9 SCNJ 1072 73 (1989) 4 NWLR (part 117) 517 and Chief Kalu Igwe & 2 Ors. Vs. Chief Okuwa Kalu & 2 Ors. (1990) 5 NWLR (part 149) 155 at 164 C.A. per Kolawale, JCA, (of blessed memory)
The Court hearing an application for stay of execution of the Courts judgment must operate and act on relevant principles in considering whether to grant or refuse a demand by the judgment debtor for stay of execution of a judgment. The principles are abounds in numerous decisions of the apex Court in the land. Suffice to refer to the case of PROFESSOR V.O.S. OLUNLOYO VS. ADEDAPO ADENIRAN (2001) 14 NWLR (PART 734) 699 at 709 F – H to 110 A – C per KUTIGI JSC later CJN who said:
Now, it is settled that a stay of execution will only be granted if and only if, the Court is satisfied that there are special or exceptional circumstances to warrant doing so, because the principles of law is that a judgment of a Court is presumed to be correct and rightly made until he contrary is proved or established. Courts will not therefore make the practice of depriving a
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successful litigant of the fruits of his success (See for example Martins Vs. Nicannar Foods Co. Ltd. (1988) 2 NWLR (Part 94) 75; Shodeinde Vs. Registered Trustees of Ahmadiyya Movement-In-Islam (1980) 1 – 2 SC 163; Vaswani Trading Co. Ltd. Vs. Saralaki & Ors. (1972) 12 SC 77. A discretion to grant or refuse a stay must therefore take into account the competing rights of the parties. See Okafor & Ors. Vs. Nnaife (Supra). And where there is a pending appeal as in situation herein, the special circumstances which have received judicial approval are when execution would:
(a) Destroy the subject matter of the proceedings.
(b) Foist upon the Court a situation of complete helplessness; or
(c) Render nugatory any order or orders of the appeal Court.
(d) Paralyze in one way or the other the exercise by litigant of his Constitutional; right or appeal or,
(e) Provide a situation in which even if the appellant succeeds in his appeal, there would be no return to the status quo. See generally Vaswani Trading Co.Vs. Savalakh & Co. (Supra) Deduwa Vs. Okorodudu (1974) 6 SC 21 Kigo (Nigeria) Ltd. Vs. Holman Bros. (Nig.) Ltd. (1980) 5
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7 SC 60; Nwabueze Vs. Nwosu (1988) 4 NWLR (Part 88) 257.
An Applicant for stay of execution must therefore show positively vide materials placed before the Court that he is entitled to put on hold the execution of the judgment sought to be stayed given in favour of the victorious party or winner in an action.
He must point out and prove the risk he stands to suffer if execution of the judgment is carried out because the judgment of a Court is presumed correct until it is set aside or overturned by an Appellate Court. See also C.B.N. V. S.H AHMED (2001) 11 NWLR (PART 724) 369 C – D. A Court will not grant a stay of execution of a judgment that will tantamount to enabling an Applicant/Judgment Debtor to gain undue advantage and thus making him to obtain the very reliefs which he had lost in the action as a result of the judgment sought to be stayed.
It is now pertinent to say that the only issue for consideration on the application is whether this Court can grant the stay of execution sought having regard to the materials placed before this Court in form of Affidavits evidence.
I have already reproduced in full the Affidavit
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in support of the Appellants application for unconditional stay and order of injunction.
It is also apposite here to refer to Paragraphs 5, 7 and 8 of the Respondents Counter Affidavit which are as follows:
5. That the facts and circumstances of this case are as follows:
(i) That sometime in 1998, there was a fire out break at the Appellants Oil Well located at Nde Ogwuma, Oguta, which fire ranged on for one full month before the Appellant could put it off.
(ii) That the said fire destroyed the Respondents farm land, fish ponds, farm produce, cash crop and equally cost the Respondents severe health damages for which Respondents and their family members were hospitalized for a while.
(iii) That the Appellant negligently allowed this fire to rage for over two months before putting off the fire, and commenced the payment of compensation to various families and farm settlement affected by the fire outbreak.
(iv) That the Appellant callously refused to visit the Respondents farm land and farm settlement; it equally refused to pay any compensation to them despite pleas and demands by Respondents
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in person and through their lawyer.
(v) That Respondents then filed a suit at the Lower Court in 1998 seeking for damages for injuries caused to their health and farms land etc by the negligence of the Appellant.
(vi) That the Appellant dragged out this case for sixteen (16) years at the Lower Court as a result of several interlocutory applications and Appeals at the instance of the Appellant.
(vii) That at the Sixteenth (16th) year the Appellant brought a motion to amend its statement of defence by adding a new fact; that upon the refusal of the application by the Lower Court on the ground that same was overreaching, Applicant brought yet another interlocutory appeal, and motion for stay of proceeding which again, delayed the matter for several months.
(viii) Appellant later abandoned the said Appeal and filed another application to strike out its own statement of defence on the ground that same was not signed by a legal practitioner.
(ix) That all the several applications were aimed at delaying the hearing of the case and frustrating the Respondents.
(x) That the Appellant through one of their Counsel Innocent Ekpen, Esq. on one
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of the days we came to the Lower Court for the matter, boasted to my hearing that the Respondents will not collect the judgment sum during their life time.
(xi) That true to that boast, one of the Respondents died during the pendency of this suit and had to be substituted with his son.
(xii) That after several delays the Lower Court eventually determined the matter and in its final judgment, found for the Respondents and awarded damages and cost against the Appellant on 27/6/14.
7. That when we waited for several weeks for this said motion to be served on us without success, my Chambers through one of my colleagues, one Stanley C. Chukwu, Esq. on the 12/9/14, went to the registry of the Lower Court and collected the said motion which was fixed for hearing to 27/10/14.
8. That upon the receipt of the said motion, the Respondents filed a counter affidavit, and a motion praying that the judgment sum be paid into Court in an interest yielding account. A copy of the motion, we filed at the Lower Court is Exhibited RSI herein.
The Respondents Counter Affidavit evoked a 23 Paragraph further Affidavit in support of
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the Appellants motion out of which Paragraphs 16, 18, 19, 20 and 21 are relevant to the consideration of the Appellants motion. They are as follows:
“18. That by an ex-parte application for a garnishee order nisi filed by the Applicants/Judgment Creditors on 8 October, 2014, the Applicants prayed the Lower for the following orders:
i. Fifteen Million, Four Hundred and Fifty Thousand Naira (15,450,000) being judgment debt and cost obtained against the Judgment Debtor vide the Judgment of this Honourable Court of 27th June, 2014
ii. 14% of the above Judgment sum being the mandatory statutory interest under Section 17 of the Judgment Acts 1938, a statute of General Application and under Order 23 Rule 5 of the Federal High Court Rules 2009 respectively.
iii. 25% of the above judgment sum being the legal cost of prosecuting this garnishee proceeding.
19. In its ruling delivered on 20 November, 2014, the trial Court refused the application and adjourned the suit sine die to await the determination of the appeal pending before this Honourable Court. A certified true copy of the enrolled order of the ruling is hereto attached as
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Exhibit Agip 1.
20. That by the clear order of the trial Court the proceedings for the enforcement of the judgment have now been adjourned to await the determination of this appeal as a mark of respect to this Honourable Court.
21. That in view of the order of the trial Court directing the stay of further proceedings in the enforcement suit filed before it, it will not be prudent for this Honourable Court to direct the Appellant to pay the judgment sum into this Court.”
I will say straight away that Paragraph 21 of the further Affidavit is preposterous, outlandish and contemptuous and a disrespect to this Court. The Lower Court did not in its order dictate to this Court how to exercise its discretion. It only adjourned sine die. What the said Paragraph 21 deposed to is a gross misrepresentation and contemptuous misconception of the order of the Lower Court.
The Exhibited enrolled order of the Lower Court dated 20th November, 2014 exhibited to the further Affidavit contained only the following as orders in the Motion Ex-parte:
IT IS HEREBY ORDER AS FOLLOWS:
(1) That this application is hereby refused.
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(2) That this matter is adjourned sine die until the Court of Appeal decides the appeal
Upon the entry of the appeal in this Court, this Court is fully seised of the entire proceedings. No party to a proceeding can dictate to this Court when it is prudent to make an order. Paragraph 21 of the further Affidavit is hereby struck out for being a brazen affront to this Court.
I agree with the submission of the Learned Counsel in this matter that the Court must in the determination of application for stay of execution and injunction exercise its discretion judicially and judiciously based on all the materials placed before it and the surrounding circumstance of the case.
Apart from the supporting Affidavit, the Counter Affidavit and the Further Affidavit the Court must also bear it in mind the Notice of Appeal filed in this appeal. The Notice of Appeal consists of thirteen grounds which without their particulars are as follows:
Ground No. 1
The trial Court erred in law when it failed to determine the preliminary objection filed by the Appellant on 21 June, 1999 before proceeding to enter judgment in favour of the Respondents in the
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suit.
Ground No. 2
The trial Court erred in law when it substituted the original 3rd Respondent, Anthony Agorua, with the present 3rd Respondent and proceeded to award judgment in favour of the 3rd Respondent.
Ground No. 3
The trial Court erred in law when it failed to hold that the failure of the Respondents to plead the particulars of negligence and prove same with credible evidence was fatal to the case of the Respondents and disentitled them to the grant of the reliefs sought.
Ground No. 4
The trial Court erred in law when it held that the doctrine of res ipsa loquitur applied to the case of the Respondents.
Ground No. 5
The trial Court erred in law when it relied on the common law principle of res ipsa loquitor and thus reached the erroneous conclusion that the Appellant was negligent when the Respondents did not prove negligence.
Ground No. 6
The trial Court erred in law when it held that the fire which alleged caused damaged to the Respondents started at the Akri 9 Oil Well.
Ground No. 7
The trial Court erred in law when it held as follows:
I do not hold the same view as
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Defendants Counsel that the failure of the Plaintiffs to tender in evidence the letter dated 21st April 1998 which they wrote to invite the Defendant to inspect their farmlands, or the letter dated 18th May 1998 written by their lawyer is fatal to the Plaintiffs case.
Ground No. 8
The trial Court erred in law when it attached weight to Exhibits C and D and relied on same to hold that the Respondents farms and fish ponds were affected by the fire incident, thereby occasioning miscarriage of justice.
Ground No. 9
The trial Court erred in law when it accorded weight to Exhibits A1 to A13 and relied on same to hold that the Respondents farms and fish ponds were affected by the fire incident, thereby occasioning miscarriage of justice.
Ground No. 10
The trial Court erred in law when it held as follows:
I am also satisfied with the Medical Reports Exhibits E1 to E3 (sic), which, as explained by PW3, the Medical Practitioner prove that the Plaintiffs and members of their families suffered from health complications as a result of the fire incident caused by the Defendants
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negligence.
Thereby occasioning miscarriage of justice.
Ground No. 11
The trial Court erred in law when it held that it could not rely on the evidence of DW1 because he was employed after the fire incident occurred and had no skill in oil exploration.
Ground No.12
The trial Court erred in law when it awarded the sum of N15,000,000.00 (Fifteen Million Naira) to the Respondents as general damages for the losses they allegedly incurred as a result of the fire incident.
Ground No.13
The trial Court erred in law when it awarded the sum of N150,000 (One Hundred and Fifty Thousand Naira) to the each of the Respondents as costs.
The major contention and the backbone of the Appellants application among other grounds are that the Respondents will dissipate the judgment sum if paid over to them and it may be impossible for Appellant to retrieve the money if she succeeds on appeal and that the appeal has reasonable chance of success.
I have calmly read all the processes filed pertaining to the application for unconditional stay and injunction. I am of the view that because what is at stake in this application is
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a monetary judgment there must be special or exceptional circumstances positively shown by the Appellant to warrant the exercise of discretion of this Court in her favour. See INTEGRATION (NIG) LTD VS. ZUMAFON (NIG) LTD (2014) 2 SCM 187 at 195 I to 196 A – D per PETER ODILI, JSC who said:
Again to be said in line-with the decision of the Supreme Court in Utilgas Nigeria & Overseas Co. Ltd v Pan African Bank Ltd (1974) NSCC 393, is that though the Courts including the Apex Court have a wide discretion in granting or refusing an application for stay of execution of a judgment already delivered but such discretion should be exercised judiciously and it would be so exercised where it is demonstrated that the appeal involves substantial point or points of law necessitating that the parties and the matters be kept in status quo until the legal issues are resolved.
It must not be lost sight of in all these that at the root of it all is the basic fact that a party to obtain a stay of execution of a judgment against a successful adversary must show substantial reasons to justify the denial of that successful party of the fruit of his judgment
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by the Court. To state the above differently is to emphasize that a judgment that is executory should have no hindrance from the delivery of the judgment to the effecting of the order or restrain the immediate execution of that judgment some special circumstances or unique occurrence must exist to hold back the hand of the Court. See Balogun v. Balogun (1969) ALL N-LR 341.
I am of the view that the Appellant has not demonstrated or shown special exceptional circumstances to warrant the exercise of this Courts discretion in her favour. In the result the Appellants Motion On Notice dated and filed on 24th day of October, 2014 for an order of unconditional stay of execution of the judgment of the Federal High Court delivered by OLUBANJO J. on June 27th 2014 and for order of interlocutory injunction pending the determination of the appeal herein is dismissed with N30,000.00 (Thirty Thousand Naira) costs in favour of the Respondent to the Appellants aforesaid application.
The same principles of law that are applicable to application for unconditional stay of execution govern the Respondents MOTION ON NOTICE for an order
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directing the Appellant/Respondent to pay into this Honourable Court within one calendar week the sum of N15,450,000.00 plus 4% interest accruing from the date of judgment.
The Learned Counsel to the Appellant strongly opposed the application as earlier stated and also challenged the proprietary of the Respondents inviting this Court to award interest in their favour when the Lower Court did not award any interest on the judgment sum.
It is the law that a claimant who wants interest to be awarded to him in any sum claimed either on prejudgment interest or post judgment must specifically claim same on the writ of summon and plead facts to support the prejudgment interest in his statement of claim. The claimant must lead credible evidence of his entitlement to prejudgment interest on the amount claimed from the date of accrual of action and if he is entitled to more percentage of interest than prescribed by the Rules of Court after judgment the claimant also has a duty to plead and prove it. A claimant does not need to claim post judgment interest as provided in the Rules of Court before same could be awarded in his favour by the trial Court.
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See:
(1) HIMMA MERCHANTS LTD VS ALHAJI INUWA ALIYU (1994) 5 NWLR (PART 347) 667at 676 F – H to 677. A – D per ONU, JSC
(2) G.F.K. INVESTMENT LTD VS NIG TELECOMMUNICATON LTD (2009) 15 NWLR (PART 1164) 344 at 379 C G per OGBUAGU JSC who said:
As to the issue on award of interest, it need be stressed that a Judgment debt, is a debt or damage or other monetary award, which has been pronounced upon by a Court of competent jurisdiction. It begins, when the Court has pronounced on its judgment in favour of the plaintiff. Interest on a judgment debt, is therefore, interest after adjudication. It cannot be before that incident. So to award interest on the judgment debt from the date of accrual of the cause of action, is a contradiction in terms. So said this Court in case of Ekwunife v. Wayne (West Africa) Ltd. (1989) 5 NWLR (Pt. 122) 422; (1989) 12 SCNJ 99 @ 118.
In England, Section 17 of the judgment Act, 1838, is the Statutory Authority to award interest on a judgment debt. In this Country, the various High Court Rules of each State make provision for the power to award interest as in the instant case under Order 38 Rule. It
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is mandatory or obligatory that interest thereunder, must be claimed on the Writ or pleaded in the statement of claim. So, it is different from when it is claimed as a right. The implication of the words unless otherwise ordered by the Court, is that the discretion given to the Court to order otherwise as appears in the said rule, is limited to the rate of interest. But before a Court can depart from this power and award interest at the rate different from that provided in the Rule per annum, under a discretion envisage by the opening clause of the rule, there must be facts and/or circumstances, to justify such a course. See the case of Wayne etc. v. Ekwunife (supra) at 120.
By Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009 a Judge has discretion to direct payment of interest not exceeding ten percent per annum to be paid upon any judgment.
I have in respect of prayer 1 on the Respondents Motion perused the grounds for the application, the Affidavit in support and the Counter Affidavit of the Appellant and the impressive submissions of Learned Counsel to the parties concerning the application of the
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Respondents.
This Court must take into account the competing interest of the judgment creditors and that of the judgment debtor in the grant or refusal of the application. See the cases of:
(1) INTEGRATION (NIG) LTD VS ZUMAFON (NIG) LTD (2014) 2 SCM 187 at 199 G – H. per ARIWOOLA JSC who said:
It is settled law that a stay of execution of a judgment will only be granted by the Court, if it is satisfied that there are special or exceptional circumstances to warrant doing so. The reason being that a judgment of a Court of law is presumed to be correct and rightly given until the contrary is proved or established. The Courts have refused to make it a practice of depriving a successful litigant of the fruits of his success in Court. See Martins Vs. Vicannar Food Co. Ltd (1988) SC 429; Shoderinde Vs. Trustees in Islam (1981) 2 SC 165; Vaswani Trading Co. Ltd. Vs. Savalakh & Ors (1972) 12 SC 77, Amadi & Ors vs. Chukwu & Ors (Pt 12) 12 SCM 18.
(2) NIGERIAN NATIONAL PETROLEUM CORPORATION VS BCA CONSULTING ENGINEERS (2004) 2 NWLR (PART 858) 484 at 503 A – D per GALADIMA J.C.A now JSC who said:
The last of
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this illuminating passage point out that in money judgment the Court can only allow the judgment debtor who has applied for stay of execution pending appeal to retain the judgment debt if and only if the judgment creditor consents thereto. This is not the case in the instant case. It is now well settled that the competing interests of the creditor and judgment debtor shall be regarded as of paramount importance in granting an application for stay of execution of judgment. In this regard I am inclined to hold that the Applicants application for an unconditional stay of execution of the judgment of the Lower Court is unmeritorious and should be dismissed.
I am therefore of the firm view that it is appropriate to incline to the grant of the Respondents application for conditional stay of execution of the judgment sum. The Respondents application succeeds.
Consequently, the Appellant AGIP (NIG) PLC shall within seven (7) days from today pay into this Court the aforesaid judgment debt in the sum of N15,000,000.00 (Fifteen Million Naira) and the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) being cost awarded to the
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Respondents as Claimants at the Lower Court into this Court to be held in trust by the Deputy Chief Registrar of this Court, in an interest yielding bank account at a reputable bank within Owerri metropolis pending the determination of the appeal lodged by the judgment debtor against the said judgment.
The party who eventually wins the appeal shall be at liberty to collect or recover the judgment debt with the accrued interest at the conclusion of the appeal lodged. No order as to costs.
Other Citations: (2016)LCN/8923(CA)
