Elsie Agba & Anor V. Samuel Okogbue (1988)

LawGlobal-Hub Lead Judgment Report

OWOLABI KOLAWOLE, J.C.A.

 In this application, the Defendants who have appealed to the Supreme Court against the decision of this Court are asking for a stay of execution of the said judgment on the familiar grounds namely:
(1) That the enforcement of the judgment of the Court of Appeal given on 27th July, 1987 will destroy the substance of the appeal to the Supreme Court.
(2) That the enforcement of the said judgment will render the judgment nugatory.
(3) That the enforcement of the said judgment will destroy the lien which the Defendants/Appellants/Applicants have over the Respondent’s sewing machine seized by the Age Grade for the Respondent’s refusal to pay his contributions towards community development.

This application is supported with an affidavit the main summary of which I have highlighted above and a notice and grounds of appeal.

The subject-matter of this application is the return of the Plaintiff/Respondent’s butterfly sewing machine seized by the Applicants or its value of N115.00. The Applicants who were the Defendants in the court below were members of the Aba Branch of Umunkalu Age Group of Alayi. They on 22nd April, 1978 broke and entered the Respondent’s shop and seized and carried away his Butterfly Sewing Machine. The Plaintiff/Respondent reported the matter to the Police without any result. The Plaintiff/Respondent instituted an action at the Chief Magistrate’s Court and before the learned Chief Magistrate the Applicants’ case was that the Plaintiff being a member of the Umunkalu Age Group, by the operation of their custom, he must pay all the development levies imposed on members of the age group. For failing to pay the levies imposed the Applicants seized the Respondent’s Butterfly Sewing Machine as aforesaid.

The learned Chief Magistrate in entering judgment for the Respondent observed that a custom which operates by force is unreasonable and a custom which deprives a citizen a free choice of association runs contrary to Section 37 of the Constitution of the Federal Republic of Nigeria and therefore cannot acquire the force of law.

The background facts of this case sound as strange as fiction. The learned Chief Magistrate found that the Plaintiff was not a member of the Umunkalu Age Group and so to compel a citizen to join an association – call it an age group which is not of his choice is unconstitutional. The High Court sitting at Aba reversed the decision of the learned Chief Magistrate. The Court of Appeal restored the judgment of the Chief Magistrate’s Court.

This court referred to the case of Governor of Lagos State v Ojukwu (1986) 1 NWLR (Pt.18) 621, at 636 where Obaseki, J.S.C. stated as follows:-
“In the area where the rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world which proclaim loudly to follow the rule of law, there is no room for the rule of self-help by force to operate. Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the Court, thereby invoking the judicial powers of the State, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course.”

It seems clear to me that the principles upon which the court grants or refuses a stay of execution pending an appeal are well settled. There is a long line of decisions on the subject and I will only cite a few:
(1) Vaswani Trading Co. v Savalakh & Co. (1972) 1 All NLR (Part 2) 483 at 487; (1972) 12 SC 77, 80/82.
(2) Balogun v. Balogun (1969) 1 All NLR 349, 351
(3) Kigo (Nig.) Ltd v. Holman Bros. (Nig.) Ltd (1980) 5/7 S.C. 60
(4) El-Khalil v. Oredein (1985) 3 NWLR (Part 12) 371 CA
(5) Okafor v. Nnaife (1987) 4 NWLR (Part 64) 129
(6) Martins v. Nicannar Food Co. Ltd. & Anor (1988) 2 NWLR (Part 74) 75
Without attempting to be exhaustive these cases have established the following principles among others:
(a) Any court will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances.
(b) The grounds of appeal filed do raise vital issues of law and there are substantial issues to be argued on them as they are.
(c) Where 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 where either side could have a decision in his favour.
(d) The court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal, if successful, is not nugatory.
(e) If the request for a stay and the subject-matter of the appeal have the same substratum so that the grant of the one would dispose of the other, a stay of execution should be granted.
(Deduwa v. Okorodudu (1974) 6 S.C. 21)

Learned Senior Advocate Mr. M. A. Agbamuche for the Applicants was at great pains to be able to bring his application within any of the established principles in which a stay of execution can be granted. He must, of course as he is bound to, admit that all courts do not make a practice of depriving a successful litigant of the fruits of his judgments unless there are strong and special circumstances for doing so.

Chief Tagbo Nwogu, learned counsel for the Respondent, submitted that the Applicants have not shown good faith in bringing the application for stay of execution because they have refused to pay the damages and costs awarded against them without deposing in the affidavit in support of their application that if the damages and costs are paid there is no reasonable probability of the Respondent repaying back the money if the appeal succeeds. Rather, the Applicants deposed in paragraph 17 of their affidavit that they would pay the costs of N100.00 awarded in favour of the Respondent by the Court of Appeal “without delay before the hearing of the application for a stay of execution of the judgment of the Court of Appeal.” They have not paid the costs up to the day 31 May, 1988, when the application was heard before us. I am of the opinion that in considering an application for a stay of execution pending an appeal, it must be clearly borne in mind that a stay of execution is never granted as a matter of course because Section 18 of the Court of Appeal Act, 1976, enacts that an appeal under Part 2 of the Act shall not operate as a stay of execution. 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 Respondent. In so doing, it is wrong to suggest that a court is acting as if it is hearing an appeal because it has pointed out the absurdity of a ground of appeal in considering whether it is prima facie an arguable ground. (See Montubi, S.P.A. v. Scansila Contracting Co. Ltd. (1986) 2 N.W.L.R. (Part 21) 158, 164.

I share the views of Akpata J.C.A. that before the Court can validly hold that a ground of appeal is not prima facie arguable it is necessary to refer to the apparent weaknesses in the grounds of appeal and/or incurable pitfalls which render the grounds unarguable without going into the details of the merits of the grounds.

After examining the grounds of appeal, as I am bound to do, it is plain to me that the fundamental question is as to right to freedom of thought, conscience and religion as well as the right to association. All over the years every citizen is entitled to freedom of thought, conscience and religion and freedom of association. What the applicants complaints amount to are that the Respondent’s constitutional rights must be subject to the custom of Umunkalu Age Group of Ajayi which the Respondent has, by reason of his religious beliefs, refused to embrace. Such grounds of appeal do not, in my judgment, raise vital issues of law and no substantial issues can be argued on them as they stand.

Furthermore, if a stay of execution is refused, if the appeal is successful, the appeal cannot be nugatory.

The judgment of the learned Chief Magistrate which the Court of Appeal restored is the return to the Plaintiff/Respondent of his Butterfly Sewing Machine or its value of N115, loss of use of the machine for 74 days at N10.00 per day totalling N740 and costs. It is, in my view, beyond question that the application of the Applicants is a ruse to delay and deny the Plaintiff/Respondent the enjoyment of the fruits of his judgment. The Applicants have consistently and deliberately disobeyed the order of the Court of Appeal which gave its judgment on 27 July, 1987. The appeal itself came into this court in 1982 in appeal number FCA/E/93/82. The Butterfly Sewing Machine of the Respondent was seized by force since 22 April, 1978, ten long years ago. The Respondent is a Tailor by profession from which, on the evidence on record, he earns his living.
How much would he have made since the application of self-help to enforce the Applicants’ custom and how much were the Community levies which the Respondent should have paid. The learned Chief Magistrate ordered the return of the Respondent’s Butterfly Sewing Machine or its value on 28-2-80.
Eso. J.S.C. put the matter graphically in the Governor of Lagos State v. Ojukwu (supra) at page 633G in a similar situation thus:-
“I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the Court further by seeking a remedy in a higher court while still in contempt of the lower Court.”
Further down at page 634E the learned Justice of the Supreme Court concluded:-
“With the contempt of the Court of Appeal by the Applicants still subsisting, it would be inequitable for this Court to give consideration to the application of the Applicant. Let the Lagos State Government purge itself of this serious contempt, of this apparent violation of the Constitution… before coming to seek the favour of the Court.”
I say to the Applicants in this case in the same vein that they have deliberately and consistently been in contempt of the order of two courts, their right notwithstanding, and so they should stop taunting this Court with a spurious application for a stay of execution. Let them go and purge themselves of this serious contempt, of the apparent violation of the Fundamental Rights of the Respondent before coming to seek the favour of this court.
Guided by the latest principles restated by the Supreme Court in P. O. P. Martins v. Nicannar Food Co. Ltd. and Anor (1988) 2 NWLR (Part 74) page 75, in considering whether or not a stay of execution should be granted, the following principles are also applicable:
(a) The chances of the Applicant on appeal. If the chances are virtually nil, then a stay may be refused.
(b) The nature of the subject-matter in dispute (in this case the Butterfly Sewing Machine) whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case.
(c) Whether if the appeal succeeds, the Applicant will not be able to reap the benefit of the judgment on appeal.
(d) Where the judgment is in respect of money and costs, whether there is a reasonable probability of recovering these back from the Respondent if the appeal succeeds.”

Relating these principles to those issues which I have discussed above, I am satisfied that there is no merit whatsoever in this application. I accordingly dismiss it with costs of N150.00 assessed in favour of the Respondent.

Other Citations: (1988) LCN/0050(CA)