Chief Danjuma Achor & Anor V. Mahionu Aduku & Anor. (2005)

LawGlobal-Hub Lead Judgment Report

MARY PETER-ODILI, J.C.A.

In a motion on notice dated 29th July, 2004 the appellants/applicants prayed for the following reliefs:

1. An order staying the execution of the orders of High Court of Justice Ayangba in its judgment delivered on 4/3/2004 in suit No. AYHC/7/2001 pending the hearing and determination of this appeal.

AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance of this appeal.

The applicants premised the application on the following grounds:

(a) The lower court made an order restraining the 2nd appellant/applicant from recognising the 1st appellant/applicant as Ohioga-Atta.

(b) The lower court refused to grant this same application for stay of execution of its orders against the 1st appellant on 20/7/2004.

The application was moved on the 17/2/05 by Mr. Akubo, learned counsel for the applicants. He stated that the application is brought pursuant to Order 3 rule 3(1) and (3) of the Court of Appeal Rules, 2002 and s.16 of the Court of Appeal Act and under the inherent jurisdiction of court. That the application is praying for an order staying the judgment of the High Court Ayangba of 4/3/2004 in suit No. AYHC/7/2001 pending the hearing and determination of this appeal. That the application is supported by a 34 paragraphs affidavit with the annexures of exhibits A, B, C and D. There is also a further and better affidavit of 9/11/2004 and another one of 4 paragraphs of 4/11/2004.

Learned counsel said the main question is whether there is a valid appeal raising substantial issues of law for determination on appeal. That there is need for an applicant to show that there are special circumstances why the application should be granted in their favour. That the issue of special circumstance is very wide. Learned counsel said that in the instant case, the grounds of appeal as per exhibit C raise issues of law which are substantial, that is the issue of locus standi of the respondent to maintain the action before the trial court. That ground is a challenge to the jurisdiction of the court to hear and determine the matter before it which is a special circumstance. He cited the case of V.O.S. Olunloyo v. Adedapo Adeniran (2001) 14 NWLR (Pt.734) 699, (2001) FWLR (Pt. 73) 4 at 47 – 48; Vincent Standard Trading Co. Ltd. v. Xtodeus Trading C Co. (Nig.) Ltd. & Anor. (1993) 5 NWLR (Pt.296) 675, (1993) 6 SCNJ (Pt. 2) 282 at 299.

The learned counsel for the applicant further contended that the applicant’s ground 4 as contained in exhibit C raises another issue of law on appeal. That the other special circumstance by the Igala custom relating to the stool in question is that once an “Ohioga” is debeaded, he cannot be beaded again. That if the judgment of the lower court is executed, there cannot be a return to status quo. He referred to paragraphs 31 – 33 of supporting affidavit. Also that the other special circumstance is that by Igala custom, the stool cannot be left vacant and a regent cannot be appointed to take charge of the stool. He referred to the case of Odedeyi v. Odedeyi (2000) 3 NWLR (Pt.650) 655, (2000) 2 SCNJ 131 at 133.

Learned counsel concluded that the balance of justice in this application tilts in favour of 1st applicant because he is the incumbent “Ohioga Attah”. That the respondents have no interest in the stool.

He referred to paragraph 3(e) (6) of the further and better affidavit of 4/11/2004. That in the interest of justice, the application should be granted as the respondents have nothing to lose. He stated further that the contention of the respondents at the lower court that the reliefs 3 and 4 of the judgment are executory in nature and the respondents attempt at enforcing the positive order of the lower court.

He cited P.S. Yaro v. Arewa Construction Ltd. & Anor. (1998) 7 NWLR (Pt.558) 368, (1998) 6 SCNJ 1 at 1214. Learned counsel urged the court to discountenance the counter-affidavit.

In reply, learned counsel for the respondents, Mr. Haruna stated that respondents filed two sets of counter-affidavits which were filed on 9/11/04 and 25/1/05 respectively. He stated that the application is incompetent having regard to the plaintiff/applicant’s claim before the lower court which was declaratory in nature. He referred to pages 10, 19 – 20 of exhibit A to the main affidavit which is the judgment of the lower court. Also reliefs (a) and (d) in paragraph 9 of exhibit D which constitute the main claim of the plaintiff before the lower court. That reliefs C and D are only ancillary or consequential.

He cited the cases of Tukur v. Government of Gongola State (No.2)(1989) 4 NWLR (Pt. 117) 517; Ajomale v. Yaduat (1991) 5 NWLR (Pt.191) 266, (No.2) (1991) 5 SCNJ 178 pp. 190 – 193. Learned counsel for the respondent referred the court to the definition of ancillary or consequential reliefs in the case of Momoh v. VAB Petroleum Inc. (2000) 4 NWLR (Pt.654) 534, (2000) FWLR (Pt. 5) 806 pp. 821 – 823.

Learned counsel stated that alternatively on the merit of the application that a notice of appeal raising substantial grounds of appeal does not automatically bring about a stay of execution. He cited the case of Momah (supra) p. 828.

Learned counsel for respondent said what is the paramount consideration in an action for stay is the preservation of the res.

That once the res is not in danger of destruction then there is no point in staying. See Ajomale v. Yaduat (No.2) (supra).

Learned counsel for respondent said what counsel for applicant called special circumstances were dislodged in counter affidavit and exhibits. That the matter of the beading and debeading was seriously canvassed at the lower court and a finding was made at page 5 of exhibit D. That it is not true that a beading cannot be done twice in Igala custom. He referred to paragraph 12 together with exhibits 1 and 1(a) to the counter-affidavit of 24/8/04. Also paragraphs 5 of the same counter-affidavit and paragraphs 7 and 8 thereof.

That exhibit 1(a) of the counter-affidavit of 24/8/04 shows that exhibit 1 was issued at the instance of 2nd applicant evidencing the debeading of the 1st applicant and when respondent applied to have the document, exhibit 1 certified, they refused, although they endorsed and so in the face of that refusal, the applicants cannot be heard to say the document was not certified. The learned counsel for the respondents said the balance of convenience is in their favour and that they have an interest which is why they went to the lower court and that the application should be dismissed.

In reply on points of law, learned counsel for the applicants stated that the court should discountenance the two cases cited by the other side namely Ajomale v. Yaduat (No.2) (supra) and Tukur v. Gongola State (supra). That the finding of beading and debeading of the lower court, this court is not bound to agree. He cited exhibit D. That exhibit I attached to the public documents offends S.97 (1)(e), (2)(c) Evidence Act and S.109(a)(b) and S. 112 Evidence Act. The document is inadmissible and the court should discountenance it.

It is necessary to restate some relevant paragraphs of the supporting affidavit deposed to by Chief Danjuma Achor, the 1st appellant/applicant on record which he deposed to on behalf of himself and the 2nd appellant/applicant. These relevant paragraphs are:

3. That the 2nd applicant was the 2nd defendant in suit No. AYHC/7/2001 filed by the respondents as plaintiffs then before High Court of Justice of Kogi State sitting at Ayangba.
4. That the 2nd applicant was the 2nd defendant in suit No. AYHC/7/2001.
5. That the judgment of the trial court i.e., High Court of Justice Ayangba was delivered on 4/3/2004 in favour of the respondents herein.
6. That myself and the 2nd applicant herein was dissatisfied with the judgment of High Court of Justice Ayangba hence instructed our counsel Adejo Oyibo Esq. to file a notice of appeal on our behalf
7. That a copy of the judgment of High Court of Justice, Ayangba is hereby attached and marked as exhibit A.
8. That I know as a fact that Adejo Oyibo Esq. of counsel filed a joint notice of appeal on behalf of the applicants herein containing only two grounds of appeal. The said notice of appeal is annexed and marked as exhibit B.
9. Subsequently, I debriefed Adejo Oyibo Esq. of counsel and briefed J. A. Akubo Esq. of counsel to handle the appeal to its logical conclusion.
10. That I know as a fact that J. A. Akubo Esq. filed another notice of appeal on 23/4/04 containing nine grounds of appeal filed on behalf of the applicants herein is herewith attached and marked as exhibit C.
11. That I know as a fact that Adejo Oyibo Esq. filed a motion on notice before the High Court of Justice, Ayangba seeking for an order staying the execution of its judgment.
12. That I know as a fact that the said motion on notice for stay of execution was argued before the lower court by J.A. Ajubo Esq. of counsel and the lower court delivered its ruling on 20/7/04 dismissing the application. The ruling of High Court of Justice Ayangba is herewith annexed and marked as exhibit D.
13. That I know as a fact that the lower court in its judgment made positive orders against.
14. That I know as a fact that after the judgment of the trial court, respondents took positive steps for me to be debeaded by the 2nd appellant/applicant who is the beading authority of the Ohioga -Attah Stool.
15. That I am the incumbent Ohioga Attah appointed and beaded by the Attah Igala since 1988 before suit No. AYHC/7/2001 was filed.
16. That as Ohioga – Attah – Igala, my main function is that of fortune teller to Attah-Igala, which function I have been performing since 1988 till date.
17. That Ohioga Attah-Igala has a Palace at Idah called Ohioga-Attah’s Palace and that is where I reside from 1988 till date.
18. That I know as a fact that by Igala Native Law and Custom, an Ohioga Attah-Igala cannot be beaded twice.
19. That since the inception of Ohioga Stool till date, there is no Ohioga-Attah was beaded and latter debeaded by Attah-Igala and subsequently beaded the same self person for a 2nd time that is  contrary to Igala custom relating to Ohioga-Attah stool.
20. That if the orders of the High court of Justice, Ayangba are not stayed, the respondents will move the trial court to direct the Attah-Igala i.e., 2nd appellant/applicant to debead me before appeal.
21. That none of the respondent is aspiring to be an Ohioga-Attah.
22. That ground two of the notice of appeal herein is a complaint against the finding of the trial that the respondents had locus standi to maintain the suit before it.
23. That on 22/7/04, J.A. Akubo Esq. informed me in his office at 12 noon who I verily believed to be true as follows-

(a) That exhibit ‘C’ herein attached raises substantial issues of law for determination on appeal.

(b) That the appeal is likely to succeed.

(c) That if the orders of the trial court are not stayed and I am debeaded, by Igala custom, I cannot be beaded again by Attah-Igala for a 2nd time even if I succeed in my appeal.

(d) That the judgment or order of this court will be rendered nugatory if my appeal succeeds and this application is not granted.

(e) That the respondents will not be prejudiced by the grant of this application.

(f) That it is in the interest of justice to grant this application.

(g) That none of the respondents seeks to be appointed as an Ohioga Attah-Igala by their reliefs in their joint statement of claim before the trial court.

30. That I know as a fact that none of the respondents can be appointed and beaded as Ohioga Attah-Igala because the 1st respondent was debeaded as Ohioga Attah-Igala for grave misconduct is not a member of Ohioga Clan in Idah.
31. That it is contrary to Igala Native Law and Custom for Ohioga Stool to be left vacant.
32. That if I am debeaded, the stool will become vacant.
33. That it is contrary to Igala Native Law and Custom relating to Ohioga Attah-Igala stool to appoint a regent to the Stool.

In counter-affidavit, the 2nd plaintiff/respondent, Umonu James Yusuf averred inter alia in paragraphs necessary for this process.

1. That I am the 2nd plaintiff/respondent in the above case/motion by virtue of which I am conversant with the facts of this case as deposed hereto.
2. That following the ruling of the trial court dismissing applicant’s motion for stay of execution, the 2nd applicant proceeded to comply with the judgment of the trial court delivered on 4th March, 2004 by debeading the 1st applicant.
3. That on 6th August, 2004, the 2nd applicant caused a notice to be issued confirming the fact that the 1st defendant was debeaded as the Ohioga Attah-Igala following the dismissal of the motion for stay of execution by the trial court in its ruling of 30th July, 2004.
4. That upon securing the notice of debeading aforesaid, I transmitted same to my counsel who instructed that I make twenty-five copies of the notice which were forwarded with an application to the appropriate officers under the 2nd applicant to have each of the twenty-five copies certified as true copies.
5. That I complied with the instruction of my counsel but the Secretary of Idah Local Government Traditional Council who issued the notice in compliance with the instruction of the 2nd applicant bluntly told me in his office within the palace of the 2nd applicant at Idah on 16th August, 2004 that he will not accede to the application of my counsel by certifying the documents but he proceeded to endorse the duplicate copy of the application. Attached herewith and marked exhibits ‘1’ and ‘1A’ are the said notice and the application of my counsel respectively.
6. That paragraphs 31 and 32 of applicants’ affidavit in support of this motion are not entirely true as the Auah Igala which office the 2nd applicant presently occupies has the powers to direct the Traditional liaison officer to the Ohioga Attah Igala Stool to take over the instruments of office from a debeaded Ohioga Attah Igala until a new one is appointed.
7. That the processes of appointing a new Ohioga Attah Igala where the previous one dies or is debeaded does not give room for the appointment of the new Ohioga Attah Igala on the same day of the death or removal of the previous Ohioga Attah Igala.
8. That it is within the discretion of the 2nd defendant to allow a regent or the traditional liaison officer to the Ohioga Attah Igala Chieftaincy stool called Ohiegba in Igala language to act in place of a deceased or debeaded Ohioga Attah 1gala until a new one is appointed and installed.
9. That apart from being the official oral diviner for the Attah Igala (fortune telling), the Ohioga Attah Igala is the immediate traditional ruler of members of the Ohioga Clan over whom he exercises certain powers such as presiding over ancestral worship by members of the Clan and acts as the traditional representative of members of the Ohioga clan in their dealings with the paramount traditional ruler of Igala people – the Attah Igala and Government bodies and agencies.
10. That it is sacrilegious in Igala native law and custom for a known thief like the 1st applicant to preside over ancestral worship of any Community – Igala land and act as the traditional representative or spokesman of such a community.

In a further and better affidavit, the appellant/applicant averred through Pauline David, the litigation Secretary of his counsel’s firm in the following relevant paragraphs:

3(e)(i) That the 2nd applicant did not debead him after the judgment of the lower court and he is still wearing the beads as the Ohioga Attah Igala and equally residing in Ohioga’s Palace till date.

The further counter-affidavit and the No.2 further counter-affidavit were more detailed of what was deposed in the counter-affidavit that restating them now would be in substance a repetition of the averments in the counter-affidavit and that would serve no useful purpose.

Learned counsel for the respondent had contended very strenuously that the application be not granted as the main order of the lower court was declaratory and the other orders being 3 and 4 were executory but merely ancillary to the main judgment orders as stated in reliefs 1 and 2. Learned counsel for the applicant had differed saying the situation cannot be so simply interpreted. The learned trial Judge S. T. Hussaini in his ruling on the motion for stay of the execution of the judgment seemed to be of the same line of thinking as learned counsel for the respondent and had held:

“It seems to me that learned applicant’s counsel deliberately chose (sic) to close his eyes on the other aspect of the judgment as it relates to orders (1) and (2). These are declaratory orders from which is derived the 3rd and the 4th. Mr. Akubo himself admitted that orders 1 and 2 being declaratory orders or judgment they (sic) cannot be stayed. Reliefs or orders No.3 and 4 ought to be taken in the like manner as ancillary to the main order i.e., 1 and 2.”

I cannot agree with this view and the reasons for coming to such a decision. It is trite that a declaratory judgment cannot be stayed. But that is not the position in this case as the trial court did not merely make his declarations and stopped there, he went further to make other orders which are executory, that is, reliefs 3 and 4.

These later reliefs or orders cannot be dismissed as ancillary to reliefs 1 and 2 which are declaratory, as treating reliefs 3 and 4 as ancillary would work an injustice which cannot be explained or justified.

For further clarification, I would refer to the judgment of the learned trial Judge which he concluded in this way:

“I make the following orders viz:-

(1) An order of Declaration that the 1st, defendant by Igala Native Law and Custom is unfit to be beaded as Ohioga of Okete Ohioga being an ex-convict.

(2) A declaration that the Installation or beading of the 1st defendant as Ohioga of Okete – Ohioga is contrary to Igala Native Law and Custom and is, therefore illegal null and void and of no effect whatsoever.

(3) Perpetual injunction is hereby ordered restraining the 1st defendant from parading himself about or holding himself out as Ohioga Okete Ohioga or otherwise performing the functions and or enjoying the benefit of the Chieftaincy Stool of Ohioga of Okete-Idah.

(4) Perpetual injunction is ordered restraining the 2nd defendant from recognising or in any way recognising the 1st defendant as the Ohioga Attah of Okete Ohioga, Idah.”

Having stated the relevant portions of the judgment of the lower court, it is clear that the application before us right now is competent and has to be considered within the context of its own peculiar circumstances in order that justice to parties are done and seen to be done and how it has been done. I am emboldened in this view having regard to the guiding principles in a long line of cases especially those of the Supreme Court in motions of stay of execution of judgment. See Alhaji Balarabe M. Abubakar V. Unipetrol Nigeria Plc. (2002) 8 NWLR (pt. 769) 242, (2002) 4 SCNJ 362 at 367 – 368, (2002) 4 SC (Pt. 11) 100 per Kutigi, JSC:

“I have to add in passing that every court of law has the duty to see that the res, the subject matter of litigation, is preserved.”

Bearing that warning in mind and co-relating it to the case at hand, I would venture to say that the subject matter in this case or the res is the stool or title of Ohioga Okete-Igala, therefore the beading or debeading becomes crucial. That makes it clear that the court must have it as a focal point in reaching a just decision in this application.

It is necessary to make the distinction between the present instant case and that of Yaro v. Arewa Construction Ltd. (1998) 7 NWLR (Pt.558) 368 at 378, (1998) 6 SC 41 at 51 per Kutigi, JSC where he held:

“But as rightly submitted by learned counsel for the respondents, there was no executory relief granted by the courts in respect of the property in dispute, the plaintiff/applicant’s claims having been dismissed in their entirety”.

Obviously, the case above stated cannot avail the respondent the circumstances therein being different with that in the case at hand.

I would further refer to some decided cases as guiding light. See Vincent Standard Trading Co. Ltd. v. Xtodeus Trading Co. (Nig.) Ltd. & Anor: (1993) 5 NWLR (Pt. 296) 675 at 686-688 held by the Supreme Court:

The following principles should guide the courts in applications for stay of execution:-

(a) The courts have an unimpeded discretion to grant or refilse a stay. In this, like in all other instances of discretion, the court is bound to exercise that discretion both judicially as well as judiciously and not erratically.

(b) A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice.

A discretion that is biased infavour of an applicant for a stay but does not adequately fake into account the respondent’s equal right to justice is a discretion that has not been judicially exercised.

(c) A winning plaintiff or party has a right to the fruits of his judgment and the courts will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is determined.

(d) An unsuccessful litigant applying for a stay must show “special circumstances” or “exceptional circumstances” eloquently pleading that the balance of justice is obviously weighed in favour of a stay.

(e) What will constitute these “special” or “exceptional circumstances will no doubt vary from case to case. By and large, such circumstances will involve 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 mailer 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 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.

(f) The onus is on the party applying for a stay pending appeal to satisfy the court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable.

(g) The court will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal.

(h) The chances of the applicant on appeal are important. If the chances are virtually nil, then a stay may be refused.

(i) 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.

(j) Whether if the appeal succeeds, the applicant will not be able to reap the benefits of the judgment on appeal?

(k) Whether the judgment is in respect of money and costs and whether there is a reasonable probability of recovering these back from the respondent if the appeal succeeds?

(l) 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. Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 136-137; Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Martins v. Nicannar Foods Co. Ltd. (1988) 2 NWLR (Pt. 74) 75 at 83 followed pp. 686 – 688 paras. C – D.

In Vincent Standard Trading Co. Ltd. v. Xtodeus Trading Co. (1993) 5 NWLR (Pt. 296) 675 at 686 per Ogundare, JSC:

“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 paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular, even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo. In Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266 at 291 para B.

The Supreme Court per Nnaemeka-Agu, JSC:

“for a ground of appeal to constitute a special circumstance which will necessitate a grant of stay of execution, it must arise in a type of decision where a stay can be granted and, in relation to the facts and circumstances of the particular case, be such that if it is decided in favour of the appellant some substantial injustice or some irreversible circumstances shall have resulted which would have made it more appropriate had a stay been granted.”

A stay of execution of a judgment of court may in appropriate cases, be granted on basis of balance of hardship, but not on mere convenience of one party. See Ajomale v. Yaduat (No.2) supra at p. 285.

From the facts displayed in the supporting affidavit, counter affidavit, further and better affidavit, further counter-affidavit and counter-affidavit No.2 and the annexures thereto, that there are substantial points of law on appeal or the danger of the destruction of the res are not in doubt. These among other facts of this case are the special, and unique circumstances for which a stay of execution is necessary. An array of decided cases buttress this point.

“The courts discretion to grant a 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 the parties and issues being in status quo until the legal issues are resolved”.

See V.S.T. Co. Ltd. v. Xtodeus Trading Co. (supra) per Ogundare, JSC at 688 paras. D – E.

In Atayi Farms Ltd. v. NACB Ltd. (2003) 4 NWLR (Pt. 810) p. 427 per Obadina, JCA at p. 458 paras. C – E:

“It is not always whenever a ground of appeal raises a difficult or recondite point of law that it constitutes a special circumstance for which a stay of execution can be ordered. Similarly, it is not in every case where the grounds of appeal raise arguable points of law that stay of execution will be ordered. Each case depends on its peculiar merit”.

In Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at 81 – 83. The Supreme Court held:

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 proved or established and for that 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.

In Fatoyinbo v. Osadeyi (2002) 11 NWLR (Pt.778) 384 at 394, (2002) 5 SC (Pt. 11) 1 at 6 per Kalgo, JSC:

“In any case, it is not in every case where the grounds of appeal raise arguable point or points of law that a stay of execution will be granted as each case will be considered on its own merit… But where as In this case, it is not demonstrated that the appeal involves substantial points of law necessitating matters to be kept in status quo until the appeal is determined, stay of execution will not be granted.”

The above warning by Kalgo JSC was factored in the full consideration of the application before us and the distinction between that case and the present one are glaring and so I would posit that the learned trial Judge had not adverted his mind to the danger of the application before him to stay the execution of his judgment as it is clearly essential that all facts and factors existing in this case be fully dealt with in the one appeal therefore necessitating the maintenance of the status quo and preservation of the res. See Odedeyi v. Odedeyi (2000) 3 NWLR (Pt.650) 655 at 659-660, (2000) 2 SCNJ 131 at 133 per Belgore, JSC:

“However ‘special circumstances’ though may include strong and substantial ground of appeal, this alone may not be enough. A strong and substantial ground of appeal does not necessarily mean the appeal may succeed; certainly the court must be wary of such ground so as not to prejudge the substantive appeal. In cases where the res, the subject matter of the appeal, is at the risk of destruction if a stay is not granted, or its nature may be altered as to make it irreversible to its original state … the court in its discretion will grant a stay of execution pending determination of the appeal”.

From the foregoing, I have had no difficulty in finding for the appellants/applicants and I therefore grant the application and order the staying of the execution of the orders of the High Court of Justice Ayangba in its judgment delivered on 4/3/2004 in suit No. AYHC/7/2001 pending the hearing and determination of the appeal. Accordingly, the application is hereby granted. I make no order as to costs.

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Other Citations: (2005)LCN/1712(CA)