Chief Mene Kenon & Ors V. Chief Albert Tekam & Ors (1989)

LawGlobal-Hub Lead Judgment Report

OMOSUN, J.C.A.

This is an application by the defendants/appellants asking for the following prayers:

1.An order that the judgment of the High Court of Rivers State, Bori to wit; the order of perpetual injunction restraining the appellants/applicants be stayed pending the final determination of the appellants’ appeal to the Court of Appeal.

OR

An order suspending the operation of the order of perpetual injunction restraining the appellants made by the High Court of Rivers State, Bori on 11th July, 1988.

2. An injunction restraining the plaintiffs/respondents either by themselves, their servants, agents or privies from with or otherwise interfering in any manner whatsoever with the enjoyment by the appellants of the land in dispute in this case pending the final determination of the appeal, against the judgment of the High Court of Rivers State, Bori delivered on 11th July, 1988. Chief Mene Kenon, the 1st defendant/applicant deposed to an affidavit in support of the motion. He says he has the authority of other applicants to depose to the affidavit. He said on 11th July, 1988, the Bori High Court dismissed their claims in suits No. PHC/9/70 and PHC/113/72 (consolidated).

The said court granted the claims of the respondent and made an order of perpetual injunction against the appellants Ex “A” is a certified true copy of the judgment. They are dissatisfied with the judgment and have appealed against it. Ex “B” is the notice and grounds of appeal. He said the applicants have been living on the land in dispute. Their farms are on the land in dispute. The applicants have no other place to go and live and farm apart from the land in dispute. Paragraph 9 of the affidavit says:

“9.That the applicants are afraid that if the respondents are not restrained by injunction and the order of perpetual injunction made against them is not suspended, the respondents are likely to enter the land in dispute thereby interfering with the enjoyment by the applicants of the said land.”

He stated that the applicants have paid the damages of N500.00 and costs of N400.00 to the respondents. He said an application for stay of execution was made to the court below but it was refused.

There is a counter-affidavit deposed to by the 5th plaintiff/respondent on behalf of himself and other respondents. He admitted paragraphs 1, 2, 3, 4, 10, 11 & 12 of the applicants’ affidavit. He denied paragraphs 5, 6, 7, 8 and 9 of the applicants’ affidavit. He deposed that the judgment of the court is tied to the respondents plan where the area granted to the appellants by the respondents is marked “thick black.” He said that the appellants’ village NWEBIARA is within this area verged “thick black.” That is where the appellants have their residential buildings and farms. He said the respondents are not claiming the said portion from the appellants being an absolute grant from the respondents’ ancestor to the appellants’ ancestor. He said the appellants are not in possession of the area in dispute verged “yellow” in the said plan known as “NOMABON”, “NWEBENTE” and part of “GBORO” as it was their act of trespass that gave rise to this action. He said the respondents have been in exclusive possession of the land in dispute from time immemorial. Their farms and buildings are on the land. They will suffer greater hardship if the application is granted. Paragraphs 12 & 13 of the counter-affidavit are reproduced below:

“12. That the respondents will be prevented from continuing farming on their land and they will also be prevented from living in their residential buildings built on the land which the Honourable court has held rightly to belong to them.

13. That our solicitors told me and I verily believe that the appellants have not shown special circumstances to warrant the grant of their application from their notice and ground of appeal relied upon and also from the facts they are relying upon because the respondents have no intention whatsoever to interfere with the peaceful enjoyment of the appellants’ land known as Nwebiara village which does not form part of the land in dispute.”

He deposed further that the application is brought in bad faith to prevent them from enjoying the fruits of their successful litigation. In his submissions Mr. Omowole said that there are substantial grounds to be argued on appeal. He submitted that the balance of convenience is in favour of the applicants. The grounds of appeal are to be examined microscopically. He cited Agba v. Okogbue (1988) 4N.W.L.R. (Pt.91) 747 at page 753. He said ground 1 raises substantial issues of facts to be canvassed on appeal. He said stay of execution can be granted where there are substantial facts to be canvassed. He said that ground 2 raises the issue of the learned Judge’s failure to visit the locus in quo. He said the trial Judge accepted the respondents’ version of the area in dispute without visiting the locus in quo.

This he submits raises a doubt as to the correctness of the decision. On ground 3 he submits raises the issue of evaluation and perception of evidence of the lower court. The substantial points to be decided are whether the decision is against the weight of evidence and the failure of the effect of the learned trial Judge to visit the locus in quo. He urged that the status quo be maintained. He submitted that equity and fairness are the basis of a stay of execution and emphasised that the balance of convenience is in favour of the applicants. He said applicants will suffer untold hardship if the application is refused. To refuse to grant the application is to debar the applicants from exercising their constitutional right to appeal. He urged us to grant the application.

What are the submission on the other side. They are these. The applicants must show special or exceptional circumstances that the balance of justice is weighted in their favour. The competing rights of the parties to justice must be considered. We are reminded that every case depends on its own facts and circumstances. It is said that not every ground of law is sufficient reason to grant a stay of execution. Mr. Ogunwole submitted that ground I of the appeal is not a ground of law. It is not recondite. It is a ground of fact he says. He submitted that the additional grounds of appeal are grounds of facts. They are not grounds of law we are told. At best they are described as mixed law and facts. He said no one asked for a visit to the locus in quo. The parties filed their plans and the lower court was not in doubt. The appellants’ plan was inaccurate. He submitted that a stay cannot be granted on the grounds of appeal filed.

He submitted that to grant the stay of execution will cause great hardship to the respondents who are in possession. He referred to paragraph, 6 – 13 of the counter-affidavit and said that the hands of the respondents will be tied if the stay is granted. The applicants have their own land. He pointed out that the applicants did not file a further affidavit to challenge the facts in the counter-affidavit. He submitted that the status quo is that of the respondents who have been in possession all the time. He urged us to dismiss the application.

The principles applicable to the grant of a stay of execution are now well settled. See Aguda Practice and Procedure First Edition paragraph 44-29. In P.O.P. Martins v. Nicanner (1988) 2 N.W.L.R. (Pt.74) at page 83, Nnamani, J.S.C., restated the principles. I will now proceed to consider applying the principles whether this is a proper case where we can exercise our discretion to grant a stay of execution. An application was made to the court of first instance. It was refused and hence the present application. Mr. Omowole’s principal argument is based on the ground that there are substantial points to be canvassed on appeal. He took us through the grounds of appeal one by one with a view to show that the grounds are really substantial. Before examining the grounds I will state the law applicable. The court’s discretion to grant a stay of execution will be 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 – Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77, Utilgas Nigeria & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S. C. 105. It is clear that the court would consider granting a stay of execution where as COKER, J.S.C., put it in Vaswani’s case “the grounds of appeal filed do raise vital issues of law and there are substantial issues to be argued on them as they are.” In Balogun v. Balogun (1969) 1 All N.L.R. 349 at 351 the Supreme Court per COKER, J.S.C., held that when grounds exist suggesting that a substantial issue of law is to be decided on appeal in an area in which the law is to some extent recondite and which either side could have a decision in his favour, a stay ought to be granted. NNAMANI, J.S.C., restated these views at page 83 of the Nicanner’s case (supra).

The notice and ground of appeal is Ex. “B” in these proceedings. The only ground of appeal filed is that “the judgment is against the weight of evidence.” Three additional grounds of appeal have been filed. I set them out below without their particulars:

(1) The learned Judge erred in law in failing to visit the locus in quo to ascertain whether or not the defendants have buildings on the land in dispute and whether the plaintiffs have shrines on the said land as claimed by the defendants and plaintiffs respectively.

(2) The learned trial Judge erred in law in failing to follow the Rule in Mogaji v. Odofin (1978) 4 S.C. 81 in the evaluation of the evidence adduced by the parties.

(3) The failure of the learned Judge to visit the locus in quo deprived him of the opportunity of determining which of the parties is actually using or occupying the land in dispute for the purpose of determining who is entitled to the customary right of occupancy in respect of the land under the Land Use Act, 1978.”

I agree with Mr. Ogunwole that the original ground of appeal is one of facts. The additional grounds are to my mind those of facts even though framed in law. Additional ground 3 is really a repetition of additional ground I which complains about the non-visit to the locus in quo. Mr. Omowole has submitted that there are arguable points to be canvassed on appeal. It has been held in Agba v. Okogbue (1988) 4 N.W.L.R. (Pt.91) 747 at 753 per KOLAWOLE, J C.A., that “the grounds of appeal filed against the judgment must therefore be tested under a microscopic mirror if the application is not a ruse to delay the enjoyment of the fruits of the judgment by the respondents. In so doing it is wrong to suggest that a court is acting as if it has been hearing the appeal because it has pointe,,d out the absurdity of a ground of appeal whether it is prima facie an arguable ground”. See Mantubi Spa v. Scansila Construction Co. Ltd. (1986) 2 N.W.L.R. (Pt.21) 158 at 164.

It seems to me that even though the grounds of appeal have been tagged as errors in law, in point of fact they attack the findings of the learned trial Judge. The attitude of appellate courts to findings of facts made by a lower court is well settled. It will not interfere with findings of court of first instance except if it made improper use of the opportunity of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support; Fashanu v. Adekoya (1974) 1 All N.L.R. (Pt.1) 35 at 41; Omoregbe v. Edo (1971) 1 All N.L.R. 282 at 289. In other words an appellant who appeals against findings of fact has an up hill task to convince the court that court of first instance made wrong findings of fact or exercised his discretion wrongly. There is a presumption that the High Court judgment is correct until set aside – Agbonmagbe Bank Ltd. v. C.F.A.O. (1966) 1 All N.L.R. 140, 143C.

Mr. Omowole argues that ground I raises substantial issues of facts to be canvassed. He called in aid the case of Anyaoke v. Abi (1986) 3 N.W.L.R. (Pt.31) 731 at page 742 which stated that a stay of execution can be granted where there are substantial facts to be canvassed on appeal. The issues whether the Judge visited the locus in quo or evaluated the evidence properly are not in my view substantial issues of law to be decided on appeal in an area in which the law is to some extent recondite. Indeed the law I would say is well settled in this aspect of the law. Indeed Mr. Omowole has referred us to the case of Umar v. Bayero University (1988) 4 N.W.L.R. (Pt.86) 85 at 92 where BELGORE, J .S.C., held “there are certain matters of fact that cannot be resolved by the trial court by mere judgment of demean our of the witnesses or the belief or disbelief of the evidence of one party or the other to a case. Such matters must be resolved by a visit to the locus in quo such that at the locus in quo, the trial Judge will not avail himself of the mere belief but of what he sees there.” The law as lucidly stated must be regarded as settled and with the greatest respect I do not see what is recondite about ground 2.

Surely it cannot be said that the law on it is obscure or little known. While on this, I cannot but refer to the case of Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129 where it was held that 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 (Ratio 9) at page 131. At page 137 OPUTA, J.S.C., said:

“Now since the radical and primary role of courts is to do justice in the atmosphere of fairness, will it be fair to the respondent in this appeal to allow the losing defendants/appellants “to continue cutting down and selling the economic trees on the land” adjudged by the trial court not to belong to them simply because their grounds of appeal contain some arguable point of law? I suppose not. Justice and fairness both demand much more than this. They also demand that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different. The case of Balogun v. Balogun may appropriately apply to divorce cases, but I am afraid it will work considerable hardship in land cases where as in the case on appeal a party adjudged a trespasser, in an application for stay pending appeal, is allowed to continue in his trespass, during that pendency, simply because his grounds of appeal (in the main appeal) contain an arguable point of law.”

I agree with Mr. Ogunwole that not every ground of law is reason for granting stay of execution. Ground 1 of the appeal is not one of law. It is of fact. It is not recondite. There is nothing recondite about the additional grounds of appeal. It seems to me that what Mr. Omowole is doing is to drag in the ratio of the cases he relied on by the hair of the head and make them willy nilly to apply to this case where the surrounding circumstances are different.

In the respondents’ counter-affidavit paragraphs 6, 7, 8 and 9, they say that the applicants’ village known and called “NWEBIARA” is within the area verged “thick black” and that is where the appellants live and farm. The respondents are not claiming that portion from the appellants being an absolute grant to them. The appellants they say are not in possession of the area in dispute verged yellow in the plan and known as NOMABON, NWEBENTE and part of “GBO RO.” Their acts of trespass gave rise to this action. The applicants did not file a further affidavit to counter these assertions. The applicants were adjudged trespassers by the court below. Damages ofN500.00 was awarded against them which they have paid. It seems to me that to grant a stay will be to allow the applicants to continue their acts of trespass. That is what Okafor v. Nnaife (supra) said could not be allowed. The applicants have been involved in continuous act of trespass since 1969-70 and it would be injustice to give legal cover for them by granting a stay of execution. The application is a ruse to delay the respondents from enjoying the fruits of their successful litigation.

A stay of execution should never be used as a substitute for obtaining the judgment which the trial court has denied a party – ESO, J.S.C., at page 138 of the Okafor v. Nnaife (1987) 4 N.W.L.R. 129.

A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice, of course courts do not make a practice of depriving a successful litigant of the fruits of his judgment unless there are strong exceptional circumstances. Vaswani’s Case (supra). The Annal Lyle (1886) 11 page 114 at 116. The applicants have their village. The court found that the area verged “thick black” is where the appellants/applicants live, have their houses and their Church. That is outside the land in dispute. When a stay is granted therefore, the main principle must be fairness and equity, having regard to the circumstances. At page 45 of the judgment the lower court said that the plan showed their settlement completely outside the area verged yellow and that based on the plan, they admit they are not in possession of the land. I do not see strong exceptional circumstances to grant the stay of execution. Mr. Omowole has asked us to preserve the status quo pending the determination of the appeal. If I may ask, what is the status quo in this case? It is pertinent to refer to the case of Government of Lagos State v. Ojukwu (1986) 3 N.W.L.R. (Pt.18) 621 at 646, OPUTA, J.S.C., said:

“I must however add that putting or preserving any property in status quo presupposes the existence of an actual peaceable, uncontested status quo preceding the pending controversy, as distinguished from a status quo effected by a wrong doer before the institution of the suit. In other words a trespasser cannot by the very act of trespass, create a status quo respecting the property in dispute and then ask the court to restore the status quo. ”

It seems that is what Mr. Omowole is asking us to do. The cause of this action is the trespass committed by the appellants. I do not see how this E Court can lend its weight to continued acts of trespass on the disputed land. I did say earlier in this ruling that the judgment of the lower court is presumed correct until otherwise decided. The status quo must in my view be that preceding the controversy. The respondents said they have lived on the land from time immemorial. The applicants adjudged trespassers cannot by their very acts of trespass create a status quo and then ask us to restore that status quo.

It is not the case of the applicants that should they win the appeal, the judgment will be rendered nugatory or hollow. Their case is that they have no other place to live and farm i.e. they will be dispossessed. That from the available affidavit evidence has been found not to be so. It is also not their contention that the subject matter will be destroyed. After all it is farm land and whoever wins can take the land.

I do not agree with Mr. Omowole that to refuse the application is to debar the applicants from exercising their right of appeal. That is putting the matter too high. There is no affidavit evidence to support that submission.

This is not a proper case in which I will exercise my discretion to grant a stay of execution. Accordingly I refuse the application. It is hereby dismissed. The applicants will pay N150.00 costs to the respondents.

Other Citations: (1989) LCN/0081(CA)