H. Tai Ajomale V. John Ethakpemi Yaduat & Anor (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division which had on the 12th day of May, 1989, allowed an appeal by the plaintiffs against a ruling by Ilori, J. sitting in a Lagos High Court whereby he ordered a stay of execution subject to certain conditions, of his judgment, pending appeal.

In the court of trial the plaintiffs had claimed against the defendants the following reliefs:

“1. A declaration of title to a statutory right of occupancy deemed to be granted by the Governor of Lagos State in respect of the plot of land known as Plot 55 Alade Avenue, in Lawani Balogun Layout at Wasimi Village, lkeja, Lagos State, lkeja District TPA 0314 of 7th March, 1964 and shown in Plan AT/43/66 dated 20th April, 1966 filed herewith.

2. N20,000.00 being Special and General Damages for the trespass continued by the defendant, his servants or agents on the said plot of land in possession of the plaintiffs.
3. An injunction restraining the defendant whether by himself, his servants or agents or otherwise howsoever from further entering, doing or taking away anything from the said plot of land and/or interfering with plaintiff’s rights over the said plot of land.
4. Costs.
5. Possession.”

After full hearing the learned trial Judge on the 18th day of December, 1987, found for the plaintiffs and granted to them the declaration they sought. He also concluded as follows:

“Arising from the facts as found herein, I hold that the defendant’s vendors had nothing to sell when they purportedly resold to Bamigbala Amao the area of land vested in Lawani before the sale to Bamigbala Amao. The plaintiff has established better title to the land in dispute.

I find as a fact that after purchase of the land in dispute, the plaintiff retrained possession but did nothing on the land hence occupiers of neighbouring premises used it as rubbish dump. The land was cleared and fenced up by the defendant but since a trespasser cannot have possession in law; the possession remained throughout in the plaintiffs; whom I hold had no materials or foundation on the land.”

He also found that the defendant was a trespasser, awarded general damages of N1,000.00 against him and granted to the plaintiffs perpetual injunction against him.

The defendant appealed to the Court of Appeal against the said judgment. Thereafter, by a motion dated 24th of December, 1987, he moved the court for another of execution of the said judgment pending appeal. In paragraphs 8, 9, 10, 11 and 12 of the affidavit in support of the motion, he deposed to the following facts:

“8. That I have on the land a building which I occupy with my family and other relations.

9. That I am still indebted to several friends and finance houses for the cost of the building.
10. That my solicitor informed me and I verily believe that there are good and substantial points of law in my favour, for consideration of the Court of Appeal.
11. That if the order restraining me from going into the property in dispute either by myself agent and or servant is executed, it will adversely affect my reputation as a legal practitioner and also expose me and my family to an untold hardship.
12. That the structure of the property which is now duplex building may be altered if the defendant/applicant and his family are ejected.”

In opposition to the motion the second plaintiff filed a counter-affidavit sworn to on the 19th of January, 1988. In paragraphs 6, 8, 9, and 10 of the said counter-affidavit he deposed as follows:

“6. That as to paragraph 9 of the said affidavit, the defendant/applicant during the pendency of this suit surreptitiously constructed the said building fully appreciative of the risk he was taking.

8. That as to the issue of untold hardship which will befall the defendant/applicant’s family deposed to in paragraph 11 of the said affidavit, the defendant/applicant as a Senior Legal Practitioner should have known better not to purport to take “possession” of the land in dispute and during the pendency of the suit.
9. That throughout this dispute-cum-action, the defendant/applicant has conducted himself in a cavalier manner; disregarding the police advice that both parties should not go to the said land to avoid a breach of the peace and whilst the police conducted their investigation.”

I may pause here to observe that the defendant filed no further affidavit to controvert the above deposition. It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established. In the instant case, from the contents of the above paragraphs of the further affidavit sworn to by the second plaintiff and the portion of the judgment of the learned trial judge quoted above, it appears that the hind in dispute was vacant and undeveloped land at the time the proceeding commenced. The defendant cleared it and fenced it round, commenced a building, rushed it through, and packed into one of the duplex during the pendency of the proceedings in the court of trial. I shall bear these facts in mind in my consideration of this appeal.

Further, the learned trial judge without showing that he adverted to the above facts, granted to the defendant his application for a stay of execution of the judgment. In doing so, he relied on two grounds:

First: that the plaintiff had raised a recondite point of law. According to the learned trial judge the only ground of appeal is the locus of the plaintiffs who although were granted letters of administration to administer the estate of an intestate utilized the proceeds of the property to purchase real estate which became the res litis. “No authority was made available to the court on this point hence its consideration by the Court of Appeal will lead to definitive statement of the law.

The second ground was what the learned trial Judge regarded as a special circumstance in that the defendant and members of his family live in one wing of the twin duplex building on the land in dispute. If the defendant and his family were to be evicted they would have to look for alternative accommodation, and if he succeeded on the appeal they would have to move back. As I have observed, the learned trial judge did not however consider the circumstances under which the building was put up and how the defendant went into possession thereof on the evidence before him. In fairness to the learned trial judge, however, he made the order for a say of execution on the following conditions:

“(a) that the respondent should prosecute his appeal timeously and expeditiously;

(b) that the Deputy Chief Registrar of the Court shall from the end of the month collect from the Respondent the rent or an amount equivalent to the rent of the wing of the duplex let out and pay the same to the Court to abide with the result of the appeal;

(c) that after the determination of the appeal, the successful party shall collect the sum so paid to the Court; and

(d) if the applicant shall fail in this appeal, he shall pay to the respondent an amount equivalent to the money paid into the Court in respect of the other wing for use and occupation of the wing now occupied by him and members of his family.

The plaintiff appealed to the Court of Appeal. In the lead judgment of Ademola, J.C.A. to which Akpata, J.C.A. (as he then was) and Awogu, J.C.A., concurred, he noted as follows:

“The contention as I see it is that the respondent here who lost the case in the court below had, during the pendency of the case, erected a building on the land in dispute which he has now lost; and he occupied part of the building while he let the other part to a third person.

But by a stay of execution which was granted him, he has in effect kept part of the building on which he has been declared a trespasser, while the money he realised on the part he let out would be kept by the Registrar of the High Court until the appeal he lodged is disposed of in this Court”

Later the learned Justice of Appeal held:

“For the respondent to remain rent-free on the property is a derogation of the judgment the learned Judge has given which declared the appellant to be the owner of the land. It is a deprivation of the appellant’s right to the fruits of his judgment by asking the Registrar to put in the court an unspecified amount as rent derivable from the other part of the house which is occupied by a third party. What the other party who occupies other wing of the house pays is not known.

The learned Judge was clearly in error in granting a stay of execution to somebody he has declared trespasser by the very award of damages against him which is contained in his judgment. By allowing the respondent to remain on the land by his occupation of part of the building on the land, the learned Judge has negated his order of injunction made against the respondent.”

The court therefore allowed the appeal and set aside the order for stay of execution made by the learned trial Judge.

The defendant (hereinafter called the appellant) has now appealed to this Court. Arising from the grounds of appeal the following issues have in the opinion of the learned counsel for the appellant arisen for determination in the appeal:

“(1) Whether the Court of Appeal was right in impliedly stating that the learned trial judge has not determined the issue of locus standi, but had merely reserved it for the Court of Appeal.

(2) Did not the trial judge base the grant of the order for the stay on the hardship that would be suffered by the defendant/appellant

(3) Whether or not a Court can grant an order of stay of execution where it would have the effect of negating the order for injunction made in the judgment.

(4) Whether the Court of Appeal should have allowed the appeal on a combination of three grounds namely:

(i) That the amount of the rent payable for the half-duplex let out to a tenant was not ascertained and directed to be paid into court.

(ii) The appellant was not himself ordered to pay rent for the portion occupied by him; and

(iii) That the appellant committed wilful trespass in building the house in dispute.”

Learned counsel for the plaintiffs (hereinafter called the respondents) formulated the following two issues for determination:

“(1) Whether the Court of Appeal is correct in holding that, on the totality of the evidence before it, the defendant/appellant’s case is not a proper one to grant a stay of execution.

(2) Whether in view of decided cases, the ground that there is a recondite point of law is sufficient to found and warrant the grant of stay of execution in the present case.”

Chief Ajayi in respect of the first issue, pointed out that contrary to the view of the Court of Appeal, the learned trial judge resolved the issue of locus against the appellant. So, he was entitled to take it upon appeal. So on the authority of Balogun v. Balogun (1969) 1 All NLR 349 being a recondite point of law, it was a special circumstance which would entitle him to a stay. In his submission, the Court of Appeal failed to understand the second ground on which the learned trial judge made the order for stay when it stated that the trial court did not base its order on hardship, whereas it did. He further submitted that the Court of Appeal was in serious error when it held that the learned judge ought not to have granted the order because it reversed the order of injunction made by him in the main judgment; whereas he could. He relied on the case of Erinford Properties Ltd. v. Cheshire County Council (1974) Ch. 261, at pp.267-268. On the last issue, he contended that the applicant should have been ordered to pay rents on the wing of the duplex house which he occupies. This was an order which the court ought to have made, as the appellant made an offer to pay rents in that court. This Court can now make the order, he submitted. He urged the Court to rule that there is no rule of law which stipulates that once a person has been adjudged a trespasser, he cannot get an injunction issued in his favour to restrain the execution of the judgment. He also submitted that Akpata, J.C.A. (as he then was) quarrelled with the order made not because it ordered a stay of execution, but because the conditions imposed were vague and unfair. He urged the Court to allow the appeal but impose equitable conditions.

Learned counsel for the respondent filed a brief. I regret to observe that it did not deal specifically with most of the points raised by the learned counsel for the appellant. However, he went ahead to advance arguments as to why the appeal should be dismissed. I wish to seize this opportunity to observe that a good respondent’s brief has two broad functions. It is refutatory in that it answers the specific points upon which the appellant’s brief is attacking the judgment appealed from. It is also supportive in that it advances arguments in support of the reasoning in the judgment appealed from. It is, therefore, unsatisfactory for a respondent in his brief to do one and leave the other. However, I am bound to consider the points raised in the appeal on their merits, as I see them.

I shall make short points of some of the points raised by the learned counsel for the appellant. It is really rather putting the matter too highly to say that the learned trial judge’s second reason for granting the application was hardship.

The learned trial judge stated:

“The next question is whether there is any other special circumstance in this case. The respondent and members of his family reside in one wing of the twin duplex built on the land. If no stay is granted, they will have to be evicted, look for alternative accommodation and move back if he succeeds in his appeal…”

This is not a finding of hardship. It is much less a decision as to balance of hardship, as there is nothing to show that the hardship of the other party was considered at all. A stay may, in appropriate cases be granted on basis of balance of hardship; not on mere convenience of one party. It is in this case, as the Court of Appeal pointed out, rightly in my view, simply based upon a consideration of the convenience of the appellant without regard to the established rights or convenience of the other party. The applicant’s convenience cannot be a special circumstance for a grant of a stay of execution within the contemplation of the law.

I do not think that the learned counsel for the appellant’s attack, in the fourth issue formulated by him, on the views expressed by Akpan J.C.A., (as he then was) is justified. The learned Justice of the Court of Appeal condemned the order made by the learned trial Judge on the grounds that:

(i) the rent to be paid into court by the appellant on the part of the duplex building he let out to a tenant was not specified;

(ii) that the appellant was himself not asked to pay rent for the wing of the house which he occupies with his family; and

(iii) that the appellant committed willful trespass in building the house in dispute during the pendency of the suit.

On the contrary, I am of the view that the learned Justice of Appeal (as he then was) was perfectly justified in his stand. The first two grounds just mentioned look to me very much like transferring the benefit of the judgment of the learned trial Judge from the successful respondents to the unsuccessful appellant, and not just a stay of execution. The essence of an order for stay of execution is to maintain the status quo before the order and prevent the successful party from insisting on his adjudged rights by invocation of the coercive jurisdiction of the courts in a process of execution. In a ease like this, this can only be done, if a stay can be ordered at all, by insisting that the unsuccessful defendant pays a specified fair and economic rent for the wing of the duplex he occupies and collects a reasonable economic rent from the tenant he installed in the other wing. But- and that would have been the stay- because the right to the property was still in disputation in the appeal, the rents for both wings would have been paid into court pending the result of the appeal. Indeed the nature of the order made by the learned Judge reminds me of what I said in this Court in the recent case of Alhaji A.W. Akibu & Ors. v. Alhaja Munira Oduntan & Ors. (1991) 2 NWLR (Pt.171) 1, at p.14 where I said:

“Moreover, this Court makes interim orders or grants interlocutory injunctions either to preserve the res or in protection of rights pending appeal. What the applicants are seeking is not an order to preserve the res. No case has been made out for a preservation order. Also, as their rights have been adversely pronounced upon in a final judgment of the High Court, I cannot see what rights of theirs there can be to be protected by an order of interlocutory injunction.”

And I had also stated;

“This to my mind is, in appropriate metaphor, to rob Peter to pay Paul: to rob the successful party in the litigation for the benefit of the party who lost. This is neither equity nor justice. Equity treats both parties evenly. Justice demands that, apart from the power of court to silly execution in appropriate cases, a successful litigant shall enjoy the fruits of a judgment in his favour until and unless the decision is reversed on appeal.”

I repeat this here. Although what I was dealing with in that case was an application for an order of interlocutory injunction to restrain a successful party pending appeal, the underlying principle is basically the same with that of a stay of execution. Where special circumstances have been shown to exist, the court exercises its power in either case either to ensure that an intending appellant’s constitutional right to appeal is not stultified or, more importantly, to preserve the res in litigation until the determination of the appeal so that if he succeeds on appeal, his success is not rendered nugatory. It must be noted that what this Court is considering is an appeal against the exercise of his discretion by the learned trial Judge, and not whether or not, in an application therefor, before this Court, it ought to have exercised its own discretion in favour of the appellant. There is, of course, a difference in principle. When it is an appeal, the question is not how the appellate court would have exercised it but whether the learned trial Judge, whose discretion it was, exercised it correctly – that is judicially,judiciously,bonafide in accord with justice and having had regard to all the necessary and relevant considerations. See: Maxwell v. Keun (1928) 1 K.B. 645; University of Lagos & Anor v. Aigoro (1985) 1 NWLR (Pt. 1) 143, p.148; Enekebe v. Enekebe (1964) 1 All NLR 102.

As it is so, the nature of the order made by the Judge on the application is also very much a part of what should subjected to the searchlight of reason on appeal. I am of the view that the learned Justice of Appeal (as he then was) was right in the view he took.

The third ground of the learned Justice of Appeal (as he then was) which has come under attack is his view that the appellant was not in any event entitled to any order for stay because be committed willful trespass in building the house on the land in dispute. Chief Ajayi submitted that it is wrong for any court to hold that because a person had been adjudged a trespasser’ to a land in dispute he is not entitled to be granted a stay of execution. He relied heavily on the opinion of Megarry, J., in the Chancery Division of the High Court of Justice, in England, in the case of Erinford Properties Ltd. & Anor. v. Cheshire County Council (1974) 1 Ch. 261, at pp.267-268 where he stated:

“I can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question is whether the applicant has made out a sufficient case to have the respondent restrained pending the trial. On the trial, the question is whether the plaintiff has sufficiently proved his case. On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one upon which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong.” (Italics mine).

I may point out that the opinion of the eminent and highly respected learned Judge at first instance has been thrown on us as if it were a binding precedent and without any regard to the views of this Court or any Nigerian Court on the matter. This Court respects opinions of every Judge in the common law countries on the common law. But as the ultimate Court part of whose function and responsibility is to reflect judicial policy in Nigeria, where it has, based often upon local conditions, made pronouncements on an issue, opinions to the contrary in courts of similar or different jurisdictions are of no avail. It is therefore sufficient to say that even if the above dictum were in point in this case – but I shall show that it is not – it can neither bind this Court nor avail the appellant because this Court has made pronouncements to the contrary tending to show that a person adjudged to be a trespasser in a case of declaration of title ought not be encouraged to continue in trespass by an order of stay. In the case of Lawrence Okafor & Ors. v. Felix Nnaife (1987) 4 NWLR. (Pt. 64) 129. at. 137. Oputa J.S.C., with whose judgment other eminent Justices who participated in the decision concurred, stated

“The case of Balogun v. Balogun (supra) may appropriately apply to divorce cases but am afraid that 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”.

Also in Tukur v. Government of Gongola State (1989) 4 NWLR (Part 117) 517 this Court decided that a declaratory judgment cannot be stayed. In my contributory judgment in Akibu v. Oduntan (supra). at p.141, following the same trend. I stated that a person adjudged to be a trespasser ought not normally be entitled to an order of stay of execution.

These pronouncements and others in line with them are consistent with the judicial attitude of this Court to lawlessness. It has consistently spoken out against executive lawlessness. In the Military Governor of Lagos State & Ors. v. Chief Emeka Odumegwu Ojukwu & Anor. (1986) 1 NWLR. (Pt. 18) 621 several eminent Justices who decided the appeal not only condemned executive lawlessness in no uncertain terms but also equaled it to a subversion of the Constitution. Quite apart from the above direct pronouncements on the impropriety of an adjudged trespasser getting an order for a stay of execution, the stand taken by this Court in such cases as Architects Registration Council & Ors. v. Fassassi (No.3) (1987) 3 NWLR, (Pt.59) 37, at p.40 and several other cases show that there are no different attitudes by this Court to the lawlessness of an individual from its open condemnation of executive lawlessness. It is worse, in this case, in which the facts show that the trespass was an intentional act. For, on the unchallenged affidavit evidence before, and findings by the learned trial Judge the land in dispute was a refuse dump at the inception of the suit which contained claims for declaration of title to a right of occupancy, damages for the trespass and injunction.

He cleared moved into one wing of the duplex house and let the other to a rent-paying tenant during the pendency of the suit. As a legal practitioner, he cannot claim ignorance of the risk he was undertaking. It is, therefore, relevant and material for the Court of Appeal to question the propriety of invoking in his favour the equitable jurisdiction he sought in the High Court for the protection of his intentional act of calculated lawlessness. In my opinion, even if I refrain from ruling out the possibility of granting a stay of execution to a defendant in unintentional trespass, I am prepared to say that on the true facts of this case the appellant was not, and is not, entitled to any equitable relief.

Before I am done with this point, I should say that the facts in the case of Erinford Properties Ltds’s case (supra) are distinguishable from the instant and could not have helped the appellant in any event For one thing the fact that the portion of the judgment relied upon recognized “whether the judgment that has been given is one upon which the successful party ought to be free to act despite the pendency of the appeal” is a material consideration.

Also, in Erinford’s case (supra) the question was whether a court which had dismissed a suit for an injunction against a defendant could rightly make an interim order restraining the plaintiff for six days to enable the defendant consider an appeal. It was held that the limited order was not inconsistent with the order of interlocutory injunction.

In the instant case, the learned trial judge that the appellant’s vendors had nothing to sell at the time they purported to sell to him. True I should not express an opinion at this stage as to whether or not that finding was correct. But I should for purposes of this appeal presume it to be correct until set aside on appeal. If do so, the situation will be seen to be entirely different from that in Erinford’s case (supra).

I should next consider the manner in which, and the grounds upon which, the learned trial Judge exercised his discretion and made the order of stay and why the Court of Appeal thought it necessary to intervene and set it aside.

Though applications for stay of execution are matters of daily occurrence in our courts, certain aspects of the consideration and the order made by the learned trial Judge make it necessary that I should advert to at least some guiding principles for the grant of such applications. It has long been recognised that the broad basis for the exercise of the power to order a stay of execution is equitable – an equitable principle which strikes the entitlement of a successful litigant to the fruits of a judgment in his favour, on the one hand, and the need to see not only that the intending appellant’s constitutional right to appeal is not impeded in any way but also more importantly that when he exercises that right successfully, the result is not rendered nugatory, on the other hand. See on this: Wilson v. Church (No.2) (1879) 12 Ch.D. pp.458 and 459, Vaswani Trading Co. v. Savalakh & Co.(1972) 1 All NLR (Pt 2) 483. My learned brother. Obaseki. J.S.C. made the same points in John Akujobi Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt. 88), 257, at p.268:

“I would say that the desire to exercise one’s constitutional right of appeal without more plays no such vital consideration in the grant of a stay of execution pending the determination of an appeal as has been expressed. The premises upon which such an application is usually made is that there is a pending appeal and the principal consideration that has guided the courts through the ages is the desire to preserve the capacity to execute the judgment of the Appeal Court. Any act that will tend to render the judgment of the appeal court nugatory has always been the prime concern of the courts in such applications. This is in consonance with the principle that a judgment creditor is entitled to the fruits of his judgment”

Because the successful litigant is prima facie entitled to the fruits of the judgment in his favour, it is expressly provided in section 24 of the Supreme Court Act, 1960, that an appeal does not operate as a stay of execution. But the same section leaves it to the discretion of the Court to order a stay either unconditionally or upon such conditions as the Court may deem fit. So a Stay of execution is not automatic upon filling of an appeal. It can only be ordered as a matter of a judicial discretion which must be exercised judicially and judiciously. And the discretion can only be exercised in favour of an applicant who has made out in his affidavit evidence before the court some special circumstances for the grant of it.

Now it is not possible to define exhaustively what could amount to special circumstances. In Vaswani Trading Co. v. Savalakh & Co. (supra) at p. 487, Coker, J.S.C. of blessed memory delivering the judgment of this Court gave an idea of what could amount to special circumstances when he stated:

“When it is stated that the circumstances or condition for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings, or foist upon the court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal, or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.”

See also Deduwa & 3 Ors. v. Okorodudu & 13 Ors. (1974) 6 S.C. 21, at pp.24-26.

In the instant case, the learned trial Judge in his rather short ruling, granted the application on two grounds, namely:

(i) That the defendant/appellant in his ground of appeal had raised the point about the locus of the respondents who had been granted letters of administration to administer the estate of an intestate applying the proceeds of the personality to purchase real estate which became the res litis. This was according to him a recondite point of law.

(ii) That execution of the judgment would entail the appellant who occupies one wing of the duplex house on the land in dispute with his family moving out only to move back if he won the appeal. This would be not only inconvenient but also dimuning of the personality and reputation of the appellant, a legal practitioner.

My first observation is that the learned trial Judge did not appear to have asked himself what res he had to preserve. Without considering the equity of the case and the conduct of the appellant which is always a relevant consideration, he made the order. In my respectful opinion, without considering these, the learned trial Judge’s approach to the question of a recondite point of law as constituting a special circumstance for purposes of a stay of execution is erroneous. In fairness to the learned trial Judge, this ground of recondite point of law has been the most misunderstood of all the grounds for grant of a stay of execution. The fons et origo of the difficult principle is of course the decision of this Court in Balogun v. Balogun (1969) 1 All NLR 349, where Coker, J.S.C., stated at p. 351

“We are in no doubt whatsoever that where grounds exist on the motion suggesting a substantial issue of law to be decided on the appeal in an are in which the law is to some extent recondite and where either side may have a decision in his favour such substantial grounds as would warrant an interference clearly exist. The argument here is that the payment of rent is not the same as maintenance allowance. We think that this is an arguable point and that on that score it will be only fair to both sides that a stay should be ordered…”

But it must be noted that what was in issue in that case was payment of maintenance by a husband to his wife, the crucial point in the appeal being whether or not payment of rent was pan of the maintenance. It can, therefore, be seen that the decision as to the relationship between payment of rent and maintenance went to the heart of the matter. It is therefore wrong to tear the statement of the learned Justice of the Supreme Court out of its con and promote it, as was done here, to a general principle by making it mean that whenever a ground of appeal raises a difficult point of law, it constitutes a special circumstance for which a Stay can be ordered. In the case of Lawrence Okafor & Ors. v. Felix Nnaife (1987) 4 NWLR (Pt. 64) 129, at p.137, this Court, per Oputa, J.S.C. in his lead judgment made it clear that contrary to the misapplication of Balogun v. Balogun (supra) it is not in every where the grounds of appeal raise arguable (call it recondite) points of law that a execution will be granted. For such a ground to constitute a special circumstance, it must arise in a type of decision where a stay can be granted and in relation to the facts and circumstances of the particular case, be such that if it is decided in favour of the appellant some substantial injustice or some irreversible circumstances shall have resulted which would have made it more appropriate had a stay been granted.

For the avoidance of doubt a recondite point of law such as can constitute a special circumstance for purposes of a stay execution is, in my view, not a point of law which, as suggested by the learned trial Judge in his decision, the subject of this appeal, not a difficult point in an area of law on which there is no previous authoritative decision. Rather, it is one which, having regard to the substance of the appeal, if a stay is not granted and the case is eventually decided in favour of the appellant the resultant circumstances would have made it the wiser that a stay should have been granted. Such a situation may arise in a diversity of circumstances. It may be that the ground is such that if the appeal eventually succeeds after the refusal of a stay an irreparable damage, injury, or injustice shall have been occasioned in that there can be no return to the status quo; or that the res of the litigation shall have gone so that the successful party shall reap an empty judgment or that the ground may show that in the first instance the court had embarked upon a case over which it had no jurisdiction; or in which there arises a substantial issue as to the competence of the action or the locus standi of the plaintiff. In short, it is not every ground which has raised an important or difficult point of law that can suffice as a special circumstance on the ground of recondity. The recondity of a point of law with reference to an application for a Stay of execution is not determined the abstract by reference to the importance or difficulty of the point raised in the ground of appeal per se. Rather, it is determined in concrete terms by reference to what the effect of a refusal to stay execution may be on the rights of the appellant, if successful in the appeal. In Balogun v. Balogun (supra), a matrimonial cause, which is the fons et origo of the ill-comprehended point, the issue was whether payment of rent was part of maintenance for a divorced wife. There can be no doubt that if execution was not stayed and rent was paid as part of maintenance, if it turned out on appeal that it ought not have been so, serious difficulties of recovery would have arisen. Hence in P.O. P. Marlins v. Nicanner Food Co. Ltd. & Anor. (1988) 2 NWLR (Pt.74) 75, this Court held that a ground of appeal which raises a substantial issue of jurisdiction constituted a special circumstance on the ground that if execution was not stayed and the ground of jurisdiction succeeded, the court shall have embarked on a good deal of futile exercise. In Miss Olabisi Williams v. Busari (1973) 2 S.C. 19 a stay of execution was granted on the grounds that one of the grounds of appeal showed that both parties were in turpi causa and that if the taxi-cab involved in the litigation and which had been seized in execution was sold while the appeal was pending success, if any by the appellant in the appeal would be nugatory.

In the instant appeal, all that the learned trial Judge did was opine that it was a recondite point of law in an area of law in which the opinion of the Court of Appeal would be useful. He did not go further to show how it would, if successfully taken, affect the merits of the case one way or the other. Indeed it was not suggested that the appellant had an interest in the intestate estate. I agree with the Court of Appeal that this was not shown to be a special circumstance.

The second ground for the order of stay is even more tenuous. All that it comes to is that it is necessary to protect the applicant’s convenience and reputation as a legal practitioner by not throwing him out of the house on the land in dispute until the conclusion of the appellate proceedings. In taking that ground into account the learned Judge completely ignored the facts that the appellant had, by the court’s own judgment, been adjudged a trespasser, and so the order was tantamount the court sanctioning his continuing the acts of trespass, despite the judgment against him. Worse, inspite of the uncontradicted affidavit evidence, set out above before the learned Judge showing affirmatively that the appellant cleared the land in dispute which was a refuse dump, commenced and rushed through the building and moved into it during the pendency of the suit, the learned trial Judge still thought it proper to protect the appellant’s so-called possession of the property in dispute. I daresay that it is too much to say that a court of justice should protect a deliberate tortious act of trespass simply because a party has filed an appeal.

For the above reasons, I am satisfied that the Court of Appeal was right to have intervened and set aside the order of Stay. I therefore dismiss the appeal and affirm the judgment of the Court of Appeal I award costs to the respondent which I assess at N500.00.

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Other Citation: (1991) LCN/2465(SC)