Christopher Chukwu V. Raphael Onyia (1989)
LawGlobal-Hub Lead Judgment Report
UWAIFO, J.C.A.
On 27th March, 1987 at the Onitsha High Court, Olike, J., gave judgment for the plaintiff/respondent for the sum of N14,592.00 with costs of N250.00. The said amount was the value of 304 cartons of Unipetrol motor oil which the defendants negligently lost in a bailment contract. The 2nd defendant was said to be the driver of the 1st defendant who drove the vehicle conveying the said goods at the material time.
The 1st defendant has appealed against that judgment alleging that the evidence was not properly considered by the Judge to the effect that he was vicariously liable for the act of the 2nd defendant in the course of driving the first defendant’s vehicle. He sought a stay of execution of the judgment at the court below which was refused by Aneke, J., on 11 November, 1988.
In his application filed in this Court on 22nd March, 1989, the 1st defendant now seeks an order of this court for a stay of execution. In the affidavit in support, he claims to have been badly affected by the present economic situation in the country and that the little money he has (which amount he did not disclose) would be used in the prosecution of the appeal. He deposed in paragraph 18: “That I do not have any vehicle anywhere at all.” He then went on to say in paragraph 19 that if execution was not stayed the plaintiff/respondent would levy execution on his household property, a result which would greatly prejudice him in the event of his succeeding on appeal since it would be impossible to replace them having regard to the present rising cost of household effects.
The plaintiff/respondent in his counter-affidavit deposed in paragraph
8: “That the defendant/applicant is capable of paying the judgment debt with ease. The defendant/applicant is a transporter. He has the following vehicles: (1) one Leyland lorry with Registration No. LAD 1803; (2) one Layland container with Registration No. LAC 3426 which he has converted to a water tanker; (3) Peugeot 504 saloon car with Registration No. OY 5266 LA; and (4) Datsun pick-up with Registration No. L 5179 KG.” Thus jolted by this revelation the defendant/applicant now filed a further affidavit alleging that he sold the Layland lorry registered as No. LAD 1803; that the two vehicles No. LAC 3426 and No. OY 5266 LA were grounded; and that the pick-up vehicle No. LA 5179 KG was being used by him in conveying his children to and from school and for attending to his petty trade in Lagos.
The defendant/applicant has obviously not come prepared in the true spirit of seeking an equitable remedy which a stay of execution entails. He did not only fail to declare his assets and liabilities, he deliberately gave false information in his earlier affidavit that he did not own any vehicle anywhere. A stay of execution cannot be rightly granted on such misrepresentation but only in circumstances that are fair and equitable. In Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129 at 138, Eso J.S.C., Said: When stay is granted…the main principles must be fairness and equity having regard to (the) circumstance. And that is, if the successful party is not restrained temporarily from taking the full value of the judgment there would be serious detriment, not only to the applicant but to the ultimate result which he would get were he to succeed later in the appeal he had lodged against the decision of the lower court.” I think it is significant to mention that an applicant cannot claim to suffer any detriment in the execution of a judgment against him if he is discovered to have tried to hide away assets which could be used to satisfy the judgment debt under the guise of poverty, although I must add that poverty simpliciter is not an exceptional circumstance warranting a stay of execution: see Nwabueze v. Nwosu (1988) 4 N.W.L.R. (Pt.88) 257 at 272 S.C.
Where judgment has been given for the payment of a sum of money and the judgment debtor seeks a stay of execution, the affidavit or affidavits relied upon by him in a situation such as this, apart from stating relevant facts upon which to consider the principles for a stay, must ensure that those facts are full and frank, including a complete and accurate account and description of all the applicant’s income, assets, interests and properties as well as his obligations and liabilities. That is the only way the court can best exercise its discretion to grant or refuse the stay. Bare assertions of poverty or opulence by him do not assist, afortiori when the facts are suppressed or misrepresented by him. Arguments based on them make a ritual of the principles and in effect invite the court to exercise its discretion on nothing other than those principles, or indeed on false facts, instead of upon true and full facts guided by the principles. This does incalculable harm to the course of justice.
In this particular case, the applicant expressed apprehension over his household effects. He has not and cannot be heard to express the same over other assets now revealed, but which he tried to suppress.
Counsel for the applicant submitted that the main strength in his application for a stay of execution lies in the grounds of appeal which he says are substantial. I can see nothing substantial in any of those grounds which will be a justification for this court to grant a stay: see Martins v. Nicannar Food Co. Ltd. (1988) 2 N.W.L.R. (Pt.74) 75 at 85 per Nnamani, J.S.C. Furthermore, there is nothing unusual or recondite in a trial court’s finding of fact, as argued to the contrary by the applicant’s counsel, that the driver of a vehicle owner who drove the vehicle in the course of his employment was the owner’s servant at the material time for the purposes of vicarious liability. The case of Balogun v. Balogun (1969) 1 All N.L.R. 349 relied on by counsel for the applicant does not apply here. In the result, the applicant has not shown any special circumstances which would warrant a stay of execution: See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77; Obeya Memorial Specialist Hospital & anor. v. Attorney-General of the Federation (1987) 3 N.W.L.R. (Pt.60) 325 S.C.
I am satisfied that this application lacks merit. It is hereby dismissed with N120.00 in favour of the respondent.
Other Citations: (1989) LCN/0070(CA)
