Femi Lasode V. Chief Tony Okoroji & Anor (2008)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, JCA
By a motion on notice dated 26th February and filed on 1st March 2007 the appellant/applicant sought for an unconditional stay of execution. The prayers in the motion state as follows:
- “An order for the variation of the conditions/terms imposed by Honourable Justice O. A. Williams of the Ikeja High Court for the grant of a stay of execution, in this suit to wit judgment debt of N6.5 million into court pending the determination of the appeal, by a grant of same unconditionally or such other terms as the court may consider just.
- For such further order or order (5) as the Honourable Court may deem it fit to make in the circumstances.”
From the above prayer one gets a very dim view about which decision of the court below, the applicant sought for an order for stay. In other words the applicant has reduced the decision sought to be stayed to a game of hide and seek. The judgment debt of N6.5 million mentioned in the prayer is contained in the judgment of the lower court delivered on the 15th February 2006, while the appeal is brought against the ruling of the court below delivered on the 11th December 2004 as per notice of appeal exhibit FA5 filed on the 12th December 2006. The baffling aspect of the prayer is that while the executory judgment delivered on the 15th February 2006 was not appealed against and could therefore not be the subject of stay, the ruling of 11th December 2004 against which the appeal was brought simply struck out the appellant/applicant’s suit, which was not injunctive and could not therefore be stayed.
Where judgment or ruling of the court below is not executory, stay of execution is, of course, a non-starter since the parameters upon which stay may be considered are absolutely non-existent My learned brother Galadima, JCA in F.I.B. PLC V. CITY EXPRESS BANK (2006) 6 NWLR (pt 869) 226 at 243 observed that:
“Where the judgment or order of a trial court is executory, such judgment or order could be stayed pending the determination of the appeal.”
It is completely out of place for the appellant to bring an application for stay of execution where an appeal is filed against a non-executory decision since there is in fact nothing to be stayed. The appellant/applicant cannot through the back door achieve his aim to stay the monetary judgment delivered in favour of the respondent on the 15th February 2006, which he has not appealed against. There can be no order for stay of execution without an appeal against the decision sought to be stayed. This Court has aptly so held in the case of NIGERIAN SPANISH ENG. CO LTD V. OLYMPIC STEEL MILL HONG KONG LTD (2000) 3 N.W.L.R. (pt 649) 403 at pp. 413 paras C-E; 417 paras B-D as follows:
“For the Court of Appeal to stay the execution of any decision there must be an appeal pending before it against the decision. In other words, the power of the Court of Appeal to order a stay of execution of any judgment or order of a lower court pending the determination of an appeal is predicated on the existence of an appeal against the judgment or order of the lower court to be stayed or at least a firm undertaking to file such appeal. This is quite plain from the language of section 18 of the Court of Appeal Act which provides that an appeal 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 the rules of court, In the instant case, in the absence of an appeal against the two relevant orders, the Court of Appeal has no jurisdiction to grant the relief being sought in the application by the applicants.”
This Court therefore, has no jurisdiction to grant the order sought for by the appellant/applicant for stay or variation of order of the court below granting conditional stay of the judgment debt of N6.5 million, which is not the subject of an appeal. In the above case of N. S. ENG. CO. LTD V. O. S. M. LTD (supra) my learned brother Mahmud Mohammed, JCA (as he then was) further observed thus:
“Therefore in the absence of an appeal against the two orders definitely this court would have no jurisdiction to grant the relief being sought in the present application. See INTERCONTRACTORS (NIG) LTD V. U. A. C. (1988) 2 NWLR (pt. 76) 303 at 329-330. Although the applicants’ appeal now pending in this court is against the decision of the lower court given on 28-7-99 refusing to set aside the ex-parte orders of the lower court of 3-4-96 and 15-4-96, the applicants’ appeal against that decision of the lower court of 28-7-99 more than 3 years after the decision of the lower court granting the ex-parte orders in April 1996 cannot also be an appeal against the ex-parte orders. The decisions in 1996 are quite distinct and separate from the decision of the lower court of July 1999 which is now on appeal and in respect of which there is no application for stay which would have been valid in law. I therefore hold that in absence of an appeal against the two ex-parte orders of the lower court, this court has no jurisdiction to grant the relief being sought in this application.”
The decision of the court below appealed against, which is not injunctive cannot be stayed or suspended. It is apposite to further refer to the above case at pp. 417-418 where my learned brother Obadina, JCA also stated the following views:
“The decision of a court that is not injunctive cannot be stayed or suspended. In the instant case, the Notice of Appeal filed by the applicant is against the ruling of the High Court delivered on 28th July 1999 refusing to set aside the two ex-parte orders of 3rd April 1996 and 15th April 1996. A critical and analytical examination of the ruling shows clearly that the decision contained in the ruling is not injunctive. The court merely dismissed the application of the applicants. In other words, the ruling does not contain any order that can be stayed.”
This trite position of the law was further stressed in SOCIETE GENERALE BANK (NIG) LTD V. INTEGRATED FARM INDUSTRY LTD (2000) 1 NWLR (Pt 640) 319 at 328 paras F-H, where my learned brother Onalaja, JCA slated thus:
“The judicial discretion to grant or refuse stay must be based on the existence of valid and competent notice of appeal and grounds of appeal. In the instant case, as there is no valid and competent grounds of appeal the prayers or reliefs for stay of further proceedings are refused as unmeritorious.”
The obvious purpose of stay of execution is to protect the substance or the res of an arguable appeal so that the appellate court will not, at the end of the day, be left in a nonsensical situation in the event of the success of the appeal. Stay of execution of a judgment or order is meant to ensure that, under certain special and compelling circumstances necessitating an order for stay, the subject matter of the suit is not irretrievably consummated, and thereby irreversibly altering the position of the parties to the detriment of the appellant in the event of success of the appeal. The trial court or appellate court may therefore stay execution of the judgment or order appealed against in appropriate cases, in order to preserve the res and ensure that subsequent success on appeal is not reduced to a worthless victory. As the name suggests, therefore it could only be sought for in respect of an executory judgment that has been appealed against. There is absolutely nothing executory that could be stayed in an order striking out the appellant/applicant’s suit which is the subject of this appeal. In YAKUBU V. ASHIPA (1999) 12 NWLR (pt. 629) 153 at 158 paras E-F my learned brother PATS-ACHOLONU, JCA (as he then was) (of blessed memory) stated thus:
“The purpose of stay of execution or further execution is to ensure that an appeal that is worthy and contains substance and there is reasonable probability that the judgment of the lower court may be upset is protected. In which case the Court of Appeal or any appellate court is not left with a dead baby if the res is destroyed or messed up and renders the appeal useless. The intention is not and never to punish the successful party by adopting all manners of legal tricks and technicalities to deprive him of his just judgment and fruits of his victory.”
It is wrong in law for the appellant to appeal against one decision and then daze by seeking to slay another that has not been appealed against. The parameter of any interlocutory application in a pending appeal is limited to issues premised on the substance of the appeal. Instead of paying attention to the prosecution of the appeal, the appellant/applicant is only busy circumventing the 1st respondent’s right to enjoy the fruits of his judgment.
The application herein, on the above appraisal, is not only devoid of merit but is senseless and tantamount to an unnecessarily worthless exercise. I therefore have no hesitation in dismissing the application with cost of N20, 000.00 to the 1st respondent, against the appellant/applicant.
Other Citations: (2008)LCN/2831(CA)
