Daily Times of Nigeria Plc V. Chief Mrs. A. S. Kusamotu (2002)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

The applicant brought an application on 20/4/2000, praying for the following:

“1. An Order staying execution of the final judgment of the Lagos State High Court, per Honourable Justice O. O. Obadina (as he then was) delivered on 23rd October, 1998.

ALTERNATIVELY

An order granting stay of execution of the judgment of the Lagos State High Court, delivered in this suit on 23rd October, 1998, upon a liberal term, than the one granted by the trial High court.

ALTERNATIVELY

An order varying the terms of the order made by the Honourable Chief Justice, Christopher Segun, made herein on the 20th day of January, 2000.”

The applicant filed in support of the application, a 12 paragraph affidavit to which were annexed several documents as exhibits, namely notice of appeal, exhibit ‘T01’; ruling of the lower court delivered on 29/1/2000 exhibit ‘T02’.

The respondent filed a counter-affidavit of 31 paragraphs on 5/6/2000, while the applicant filed a reply to the said counter-affidavit on 20/6/2000, made up of 19 – paragraphs and the last annual return/audited account of the appellant filed in 1994, was attached and marked as exhibit DTI”

On 22/4/2002, we heard the application. Mr. Rotimi Jacobs of counsel for the applicant, moved the motion. He submitted that the judgment sum involved was N5 Million and that this sum is colossal to warrant granting liberal terms or condition for the stay of execution of the said order of the lower court. It was submitted by the learned Counsel for the applicant that, if the judgment sum is paid to the respondent she would not be able to refund the said money, if eventually the appeal of the appellant succeeds. Expressing serious financial difficulties the learned Counsel referred to paragraph 18 of the reply to counter-affidavit in which exhibit “DT.1″ was attached. This was an audited account for 1994, showing that the applicant never made any profit since 1993. He submitted that substantial and arguable points of law have been raised in the appeal.

Mr. B. Okafor of counsel for the respondent, opposed the application making reference to the counter-affidavit and relying on paragraph 9 particularly. He said while the applicant has no means to settle the judgment debt, if it loses the appeal, the respondent is a lady of substance, who has the means to refund the applicant if the appeal succeeds. He said the application is incompetent, because the applicant has failed to comply with the order made by the lower court that the judgment debt be paid within the 30 days and they have sought no further extension of the time limit.

It is note worthy that the relevant paragraphs of the affidavit in support of this application are the following:

7. That I am informed by the appellant/applicant through its Secretary/Legal Adviser – Mr. T. Tamunokonbia and I verily believe him as follows:

(a) That the respondent is a retired employee of Savannah Bank of Nigeria Plc.

(b) That if the judgment sum is paid to the respondent, she would not be able to refund the said money if eventually the appeal of the appellant succeeds.

(c) That if the appellant is compelled to liquidate the judgment sum it will be impossible for it to prosecute its appeal.

(d) That it is a notorious fact that the appellant has not in the past 24 months, been able to pay its staff salaries, owing and accruing to date.

(e) The appellant who started its skeletal publication on or about July, 1999, has not made sales, with attendant lull in its circulation outlet resulting the return of thousands of unsold copies of its publications.

(f) The appellant’s staff strength of over five thousand, are increasingly depleting owing to the appellant’s financial incapacity to meet its arrears of salary payment.

(g) That the payment of judgment sum before determination of the appeal, would throw numerous workers of the appellant/applicant into unemployment market.

(h) Further to paragraph g hereof, payment of the judgment debt before the determination of the appeal would paralyse entirely, the appellant’s business and consequent close down of the entire premises/offices of the appellant.

8. That I am informed by appellant/applicant through its Secretary and Legal Adviser – Mr. T. Tamunokonbia and I, verily believe him as follows:

i) That the appellant/applicant makes no profit and is unable to keep any surplus aside.

ii) That the last annual return/audited account filed was in 1994, and since then, there has been no annual general meeting and the time the appellant/applicant company made profit last was in 1993.

iii) That the appellant/applicant has no resources from which it can pay the instant judgment debt.

iv) That the appellant/applicant has fixed assets or properties at Kakawa Street, Lagos, Apapa and Ikeja, far above one hundred million naira and the judgment debt within the jurisdiction of this honourable court.

v) That in view of the poor financial position of appellant/applicant, its bankers are unwilling to give any guarantee in favour of the appellant/applicant to liquidate the judgment debt.

vi) That the appellant/applicant is willing to deposit to the honourable court its title document, in respect of its property, either in Lagos Island, Apapa or Ikeja, which value is over 5 Million Naira, the judgment sum.

vii) That if the properties of the appellant/applicant are sold to pay the judgment sum, the appellant/applicant will not be able to recover its property if the appeal eventually succeeds.

9. That this application will not in any way prejudice the position of the respondent.
10. That similar application had been made by the appellant/applicant and ruled upon by the trial High Court.”

In the respondent’s counter-affidavit, the following averments have been made in paragraphs 5 – 30 as follows:

5. That although a similar motion for stay of execution of the judgment of lower court was indeed brought in the lower court ruling on the same was not delivered until 20th January, 2000, contrary to the misrepresentation in the affidavit in support of that first motion.
6. That because of the deliberate falsehood in the facts deposed by the same Taiwo Oloyede, in the first motion and because we consider the same to be an abuse of the court process us filed on behalf of the plaintiff/respondent a preliminary objection thereto dated 2nd March, 2000. Attached herewith and marked exhibit B1 is a copy of the said preliminary objection filed in this court.
7. That the first motion was withdrawn by the appellant/applicant on the 19th of January, 2000.
8. That the ruling of the lower court when eventually delivered on 20th January, 2000, did grant a conditional stay of execution of the judgment; and gave the appellant/applicant 30 days thereafter, within which to pay the judgment debt of five million naira to the respondent, while directing that the respondent give a bank guarantee to the appellant/applicant, for the refund of the judgment sum in the event of appellant succeeding in his purported appeal to this court.
9. That the said ruling of the lower court is exhibit T02 in the current motion of the appellant/applicant before this court.
10. That on the 13th day of January, 2000, appellant/applicant did file in this honourable court, through its same counsel a notice of discontinuance of this appeal and caused the same to be served on the respondent through our law offices. Now shown to me and herewith attached and marked exhibit B2 is a copy of the notice of discontinuance.
11. That after filing exhibit B2, no other or further appeal has been lodged against the judgment of the lower court by the appellant/applicant.
12. That the appellant/applicant however, wilfully refused to pay the judgment debt, within the thirty days granted by the lower court and has sought no further extension of the time limit.
13. That on 17th February, 2000, when it was two days to the expiry of the time limited in the ruling of the lower court for the appellant/applicant to pay the judgment debt to the respondent, the appellant/applicant filed in this court a fresh application, dated 16th February, 2000, seeking stay of execution of the judgment of the lower court for the second time. Attached herewith and marked exhibit B3 is our office copy of the said second motion.
14. That on 2nd March, 2000, Messrs Oluyede & Oluyede of counsel to the respondent, filed a preliminary objection to the second motion for stay, pending appeal having been served earlier with a notice of discontinuance of the appeal.
15. That on 25th March, 2000, when the second motion and our preliminary objection thereto were slated for hearing, this honourable court granted the appellant/applicant an adjournment to re-appraise the competence of its application in the light of our objection.
16. That on the 30th April, 2000, when matter came up for our objection aforesaid appellant/applicant filed the current motion for stay of execution and withdrew the second motion for stay of execution.
17. That I observe that the appellant/applicant has ignored completely, the notice of discontinuance of this appeal and is proposing to proceed as if the appeal is still extant.
18. That I know as a fact that under the rules of this court once a notice of discontinuance of an appeal is filed, it operates as a dismissal and permanent death of the appeal and such appeal, cannot be resurrected any longer by the court.
19. That although the respondent was mid-described in exhibit B2 as Alhaji O. Kusamotu instead of Chief (Mrs.) A.S. Kusamotu, it is beyond any doubt that same was filled on this case looking at the suit number indicated in the notice – LD/4534/95.
20. That I have also inquired in the registry of this court whether any appeal is pending or has even lodged in suit No. LD/4534/95 other than the one involving the respondent/applicant but none was found.
21. That except for this suit our firm does not represent in the lower court any other person bearing the name Kusanitu in any suit involving Daily Times of Nigeria Plc. in which Daily Times of Nigeria Plc. is an appellant or is involved in any other character in this court.
22. That I have also observed that two appeal numbers have been interchangeably used by the appellant/applicant in filing processes in this matter on appeal to wit-Appeal No. CA/L/67M.2000 and Appeal No. CA.L/388M/99.
23. That I have further discovered that the appellant/applicant has been interchangeably reflecting the name of the respondent to the appeal, as either Alhaji O. Kusamotu, or the proper name of Chief (Mrs) A.S. Kusamotu in the processes filed.
24. That the affidavit in support of the first motion bears the name of Alhaji O. Kusamotu, whereas the motion paper bore the proper name of the respondent
25. The second motion for stay, dated 16th but filed on 17th February, 2000 “Alhaji O.” in computer print covered with tippex and super-imposed on the same in typewriting and smaller character, the proper title of the “Chief A. S.” followed by her name Kusamotu.
26. That to the best of my knowledge and belief no steps have been taken by the appellant/applicant to settle record of appeal or satisfy conditions of appeal, either before or since the notice of discontinuance was filed in this appeal.
27. Contrary to the assumptions in paragraph 7(a) and (b) of applicants affidavit, the respondent is a well to do professional with properties in Lagos inter alia:

(a) 64b Festival Road, Dolphin Estate, Ikoyi.

(b) Two storey building at 32, Ijegun Road, Ikotun.

(c) Six Flats at Adewale Street, Oko-Oba.

(d) An expensive country home at Abeokuta.

All put at about N70m.

28. Additionally, the respondent is also married to a successful solicitor of over 38 years standing, Alh. S. O. Kusamotu, who is wealthy and is the owner of:

(a) 29 Ladipo Kasunmu Street, worth about N70 million.

(b) No.5 Yabo Close, Garki Abuja, worth about N60 million.

(c) No.10 Station Road, a palatial country home, worth about N50 million.

29. The appellant in any event is the beneficiary of a deed of indemnity given in its favour by one Chief Toye Coker, purporting to act on behalf of Savannah Bank of Nigeria Plc.
30. That a preliminary objection raising the incompetence of the conduct of any further appellate or ancillary proceedings (including the motion to which this counter-affidavit is filed in this court in respect of the judgment of O. O. Obadina, J. (as he then was) in suit No. LD./4534/95 delivered on 23rd October, 1998, is being filed simultaneously with this affidavit in the light of exhibit B2.”

Similarly, in their reply to the counter-affidavit the applicant has proffered some explanations for the consideration of this application as follows:

“5. In specific reply to paragraphs 10 and 11 of the counter-affidavit, it is vehemently denied that the alleged notice of discontinuance referred to is in any way referenced this appeal and was not meant to withdraw or discontinue same.

6. Further to paragraph 5 above, the alleged notice of discontinuance bears a totally different Court of Appeal No. and a different respondent and this shows that the appeal before this honourable court remains intact.
7. In an attempt by the respondent to make the alleged notice of discontinuance comply with the particulars of this appeal, he altered the Court of Appeal No., and the date thereon but could not alter the parties as the contradictions show in the two notices of discontinuance in the exhibit B1 and B2 attached to the respondent’s counter-affidavit.
8. With reference to paragraphs 12 and 13 of the counter-affidavit, the appellant/applicant filed a fresh application for stay dated 17th February, 2000, when the trial court in its ruling on similar application re-affirmed the order of the court for the payment of N5 million Naira as damages to the respondent and this said application accounted for the non-payment of the said judgment debt pending the determination of the said application before this honourable court.
9. In response to paragraphs 14, 15, contrary to respondent’s claims the motion for stay dated 16th February, 2000 and the respondent’s preliminary objection thereto dated 2nd March, 2000, came up on the 20th March, 2000 and not 25th March, 2000.
10. Further to paragraph, 9 above this honourable court granted an adjournment on the ground that the respondent filed and served his further affidavit dated 20th day of March on the day of the hearing, which necesitated the appellant/applicant’s reaction and therefore an adjournment was granted by the honourable court for this purpose to the 20th April, 2000.
11. With reference to paragraph 16, on the 20th March, 2000, this honourable court had hinted that it would be more appropriate to bring an alternative prayer for a grant of stay on more liberal or variation of the terms than the trial court and this hint prompted the filing of the instant application and the withdrawal of the then pending application.
12. Contrary to paragraphs 17, 18, 19, 20 and 21 of the counter-affidavit, the alleged notice of discontinuance was never meant to discontinue this appeal with reference to the apparent contradictions in the appeal No. and the name of respondent which differs from that of the appeal.
13. In actual fact, the misdescription alleged by the respondent in paragraph 19 with respect to the name of the appropriate respondent is patently false and misleading as the said Alhaji Kusamotu, is respondent in another appeal against the same appellant Daily Times pending in the court 2 of this honourable court with appeal No. CA/L/196/98.
14. The name Alhaji O. Kusamotu as respondent, appearing on the said notice of discontinuance is deliberate as the appeal involving him and Daily Times is also being handled by our chambers with Chief F.R.A. Williams acting for the respondent, who is the husband for respondent in this appeal.
15. In the said appeal involving Alhaji Kusamotu as respondent and Daily Times as appellant, the matter has progressed to the stage where the brief of appeal has been filed but only remains to be regularised by application for extension of time and this fact makes it doubtful whether the alleged notice of discontinuance relates to this case.
16. With reference to paragraph 22, the appeal Nos. referred to were as a result of errors emanating from the registry of this honourable court which issued two different suit Nos. on the same appeal, but which I have later pointed out and has been corrected by the appropriate officials, which has confirmed CA/L/388M/99 as the appropriate number and which mistake had also been previously repeated by the respondents in their own processes before this court.
17. With reference to paragraphs 23, 24 and 25 of the counter-affidavit, the processes being referred to by the respondent are the processes that have been withdrawn by the appellant/applicant and struck out by this honourable court and the respondent is only fishing for materials to bring the alleged notice of discontinuance to comply with the particulars of this appeal.”

The grant or refusal of a stay of execution by a court of its judgment is discretionary. However, this discretion must be exercised judicially and judiciously. It is settled that both the trial court and the appellate court can exercise the judicial discretion to grant or refuse the stay of the judgment of the trial court. See Kigo (Nig.) Ltd v. Holman Bros. (Nig.) Ltd. (1980) 5-7 S.C. 60; Vincent Standard Trading Co. Ltd. v. Xtodeus Trading Co. Ltd. (1993) 5 NWLR (Pt.296) 675; and Klifco Ltd. v. Philipp Holzmann AG. (1996) 3 NWLR (Pt. 436) 276.Again, while a successful litigant should not be deprived of the fruits of his victory or success, the court may in some appropriate special or exceptional circumstances exercise its judicial discretion in favour of an applicant for stay of execution of its judgment pending the hearing and determination of an appeal. See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Vincent Standard Trading Co. Ltd. v. Xtodeaus Trading Co. Ltd. (supra).

It is also one of the guiding principles that a stay of execution will be granted by the court, where there are grounds of appeal showing substantial issue of law to be decided in the appeal in which the law is to some extent recondite and where either side may have a decision in its favour. See Balogun v. Balogun (1969) 1 All NLR 349; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) p. 129.

However, some other guidelines the court would consider in granting application for stay of execution have been repeatedly stated in cases decided by the Supreme Court and this court. These guiding principles were enumerated in Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 per Oputa, JSC at p. 136 as follows:

“2. 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 in favour of an applicant for a stay but does not adequately take into account the respondent’s equal right to justice is a discretion that has not been judicially exercised.

3. 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 unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is determined: See The Annat Lyle (1886) 11 PD 114 at p. 116 C.A per Bowen, L.J.
4. An unsuccessful litigant applying for a stay must show “special circumstances” or “exceptional circumstances” eloquently pleading that the balance of justice is obviously weighted in favour of a stay.
5. What will constitute the “special” or “exceptional” circumstances will no doubt vary from case to case…
6. The onus is therefore, 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.
7. The court will grant a stay where its refusal would deprive the appellant of means of prosecuting the appeal:- Emmerson v. Ind. Coope & Co. (1886) 55 L.J. Ch. 905.“It is noted that at the lower court the claim of the respondent was for N100 million Naira. The learned trial Judge awarded N5 million Naira aggravated damages against the appellant for false and malicious publication. At the lower court, an application for stay of execution of judgment was refused, hence the present application in this court. In summary, in the affidavit deposed to in support of this application. The applicant averred that the sum of N5 million awarded against the appellant was such that if the said appellant is compelled to liquidate it would be impossible to prosecute its appeal and would not be able to pay its workers which are over five thousand. This again, according to the appellant, would throw the said workers of the appellant into unemployment market.

In the counter-affidavit of the respondent, it is averred that she is a banker of 27 years experience, and with the financial support of her husband, a successful lawyer of 38 years standing, she would be able to refund the said money, if she loses the appeal. It is shown that the respondent was able to acquire a duplex building at No. 64B Dolphin Estate, phase 2, Ikoyi and Block of 6 flats at No.9, Ogunwole Street, Oko-Oba, Lagos. An expensive country home at Abeokuta. The value of all these properties was put at about 70 million. Besides, the respondent gave list of other properties owned by her husband worth over N70 million.

In a further affidavit the applicant averred that they make no profit and that last time they made profit was in 1993. That they will not be able to prosecute the appeal, if they are made to pay the judgment debt and they have no resources from which they can meet their obligation to their numerous clients.

It is further averred that the applicant obtained indemnity from one Chief Toye Coker, of Savannah Bank of Nigeria Plc.

The applicant denied the alleged notice of discontinuance of their appeal.

The general purpose of granting stay of execution pending determination of appeal is to preserve the res in the case and in doing so, to maintain the Status quo. There is need to preserve the res so that the appeal court is not presented with a fait accompli and the proceedings before it is rendered absolutely nugatory. The question is whether the applicant has shown the existence of special or exceptional circumstances in this case which would warrant the granting of further stay of execution of the judgment of the lower court. Going through the copious affidavits of the applicant, reproduced above, it appears to me that the main reason for asking for a stay is that the applicant is not financially stable now and that if they are made to pay the judgment debt, they will not be able to pay salaries of their workers numbering five thousand. In one breath it is deposed that if the respondent is paid, she would not be able to refund if the applicant succeeds on appeal. I have already set out above some principles, which should guide the court in granting application for stay of execution of judgment.

It seems to me that the applicant has failed to satisfy any of the conditions mentioned above. I have carefully studied the grounds of appeal. I do not think the grounds although arguable, but do not raise recondite or substantial issues of law, sufficient enough to grant a stay of execution unconditionally.

The applicant averred that they have properties worth more than N100 million in various locations in Lagos and yet they find it difficult to pay the judgment debt. They would as a matter of priority, prefer to pay their staff of five thousand, rather than settling the judgment debt. Taking the competing interest of the parties into consideration, I cannot exercise my discretion in favour of the applicant.

There are not special or exceptional circumstances warranting the exercise of my discretionary power. To do this, is to deprive respondent of the fruits of her successful litigation and their lock up funds to which she is prima facie entitled to Arojoye v. U.B.A. Ltd. (1986) 2 NWL R (Pt. 20) 101.

As a general rule, in a money judgment, the only ground for a stay of execution is an affidavit showing that of the damages and costs were paid there would be no reasonable probability of getting them back if the appeal succeeds. This raises a substantial ground and it can be considered as a special circumstance. In the case at hand the applicant has not shown that the respondent will be unable to refund the judgment debt if the appeal succeeds in her counter-affidavit, the respondent has shown conclusively that she is credit worthy. This deposition is not controverted by the applicant. The reason given by the applicant in their affidavit can hardly support any special circumstance.

Bare assertion of poverty simpliciter or impecuniosity of an applicant has never been considered as an exceptional circumstance to warrant the grant of stay of execution of a judgment. See Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257. But if there is a plea that the applicant cannot prosecute an appeal, if the judgment debt is paid, and it is established that there are no resources, this could be taken as a special circumstance. It has not been shown in the present application that the applicant has no resources from which they can meet their obligations in the appeal. It is not sufficient to depose simply that the applicant has no resources or they have not “made profit since 1993” as done in paragraph 8 of the affidavit in support of this application. The burden is on them to establish this. They must make a full disclosure of their assets and liabilities: See Chris Chukwu v. R. Onyia (1990) 2 NWLR (Pt. 130) 80. This is the only way the court can best exercise its discretion to grant or refuse the stay. It is not the duty of the judgment creditor to show that the judgment debtor has means to pay the debt. He is entitled only to his fruits of his litigation. The burden is on the judgment debtor to satisfy the court that placing his liabilities and obligations against his income and all his assests, he deserves to be granted some equitable relief in regard to his indebtedness. That is why the applicant must not suppress or misrepresent facts. Affidavit of the applicant must present detailed facts with every candour. The applicant in this instant case, should have prepared audited annual statement of account showing its assets which will include its reserve, if any, and liabilities. The applicant has failed to exhibit its last audited account but it failed to do so, either through neglect to disclose relevant fact or supress them. I am of the film opinion that the applicant has not shown strong or exceptional circumstances so as to grant a stay of execution of the judgment unconditionally. However, I have to consider the fact that the applicant has proposed alternative prayers, namely to either grant a stay of execution on more liberal terms than the one granted by the trial court or to make an order varying the terms of the earlier order made by Segun (CJ) on 20/1/2000. Perfectly, this I can do by virtue of provision of section 18, Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990. It provides;

“18. An appeal under this part shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”

In the circumstance, I would have used my discretion to order conditional stay upon payment of the judgment debt into the court or upon furnishing a bank draft. But in view of the poor financial position of the applicant, even as disposed to in paragraph 8(v) of the affidavit in support its bankers are unwilling to give any bank guarantee. In paragraphs 8(iv) & (vi), applicant has shown that they have fixed assets or properties at Kakawa Street, Lagos, Apapa and Ikeja, far above N100 million and they are willing to deposit in this court, the title documents in respect of these properties either in Lagos Island, Apapa or Ikeja, which value is over N5 million Naira, being the judgment.

In the circumstances, I would steer a middle course and balance up the competing interest of the parties. Accordingly, I grant order staying the execution of judgment of Obadina, (J.) (as he then was) delivered on 23/10/98, upon the condition that the applicant shall within three weeks from today, deposit its title document with the Deputy Chief Registrar of this court, in respect of its property, either in Lagos Mainland, Apapa, or Ikeja, which value is over N5 million Naira, subject to proper evaluation by qualified Estate Valuer of any of such property so chosen for this purpose. The charges for the services of the Estate Valuer is to be borne by the applicant.

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Other Citations: 2002)LCN/1207(CA)