Harrison Osita Onuora V. Emeka Onuora & Ors (1999)

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FABIYI, J.C.A.

On 1st June, 1999, Keazor, J. of Onitsha High Court ordered, inter alia, the appointment of the Assistant Chief Registrar of the High Court, Onitsha as a Receiver/Manager to cater for the property situate at 42 New-Market Road, Onitsha. By the motion dated and filed on 2nd July, 1999, the Defendant/Appellant/Applicant desired to have an order staying the execution of the said order pending determination of his appeal against the stated order.

It should be pointed out here that stay of execution of the order appointing a Receiver/Manager was the only essential point canvassed by the parties herein. L.O. Anyaduba Esq., Learned Counsel for the Defendant/Applicant, on 28-9-99, withdrew prayer (a) relating to order for stay of proceedings of the suit before the Trial Court. And the same was accordingly struck out.

The motion on notice was supported by an affidavit of 48 paragraphs deposed to by the Defendant/Applicant. A host of Exhibits were attached and marked ‘A’ to ‘L’, both inclusive, Exhibit ‘H’ contains the ruling of 1-6-99 in which the Learned Trial Judge appointed the Assistant Chief Registrar of the High Court as Receiver/Manager of the property. In Exhibit ‘I’, the Trial Judge declined to grant a stay of execution of his order. Exhibit ‘I’ contains the notice cum grounds of appeal of the Defendant/Appellant/Applicant.

In Exhibit’ A’, the statement of claim, attached to the motion paper herein, the Respondents claimed to be jointly entitled as heirs with the Applicant right to the statutory certificate of occupancy over No. 42A New Market Road Onitsha. They claimed joint ownership with the applicant through inheritance of their late father’s property. They asserted that the Applicant, acting on behalf of the family of late James Okoye Onuora, leased out the family building for 30 years. After the expiration of the lease, the applicant began to lay claim to the exclusive ownership of the building of their late father and has been collecting and appropriating the rents.

The applicant’s affidavit in support of the present application is almost a complete replica of his counter-affidavit before the trial court. It is Exhibit ‘O’ herein. As stated before, the applicant maintained that as sole male heir, he is entitled to inherit the estate. He asserted that the Respondents have no locus standi for various reasons. He stated that he was granted kola tenancy of the property by Mgbelekeke family when his late father, the previous grantee, died. He said he was a sole owner in possession for over 20 years. He rehabilitated the buildings at No. 42, New Market Road, Onitsha after damage during the Civil War according to him.

The Learned Trial Judge, in his considered ruling, stressed that issues of entitlement under appropriate customary law, as well as locus standi, are to be determined in the substantive suit. After a careful appraisal of section 21(1) of the High Court Law of Anambra State as well as the decision of the Supreme Court in Uwakwe v. Odogwu (1989) 12 SCNJ 149 at p. 164; (1989) 5 NWLR (Pt. 123) 562, the Learned Trial Judge arrived at the conclusion that it was just and convenient to appoint a Receiver. This led to the appointment of the Assistant Chief Registrar of his Court as the Receiver of the stated property.

On 28-9-99, Mr. L. O. Anyaduba, Learned Counsel for the Applicant, moved the application on behalf of his client with considerable force. He maintained that the application was taken vide section 18 of the Court of Appeal Act, 1990. He placed almost reliance on the 48 paragraph affidavit deposed to by the Applicant. He observed that the applicant is the owner in possession of the property. He contended that the Plaintiffs/Respondents have no locus standi. He strenuously desired for a stay of the order of the Trial Judge appointing a Receiver/Manager over the property pending determination of the appeal. He referred to the following decided authorities “Vaswani Trading Co. v. Savalakh & Co. (1972) 123 SC 77 at pages 82, 83, 86, 88 and 89, Lawrence Okafor v. Nnaife; (1981) 4 NWLR (Pt.64) 129, (1987) 1 All NLR 373 at pages 377-378, Williams v. Busari (1973) 3 ECSLR 518 at p. 520; Nigeria Civil Service Union v. Essien (1985) 3 NWLR (Pt.12 306 at pages 316, 317.

Mr. M.U. Ikem, Learned Counsel for the Respondents, in his brief but pungent reply, submitted that the application lacked merit. He contended that no special circumstance has been shown to warrant a grant of stay of the lower court’s order. He observed that issue of locus standi is a point to be determined on merit and that appointment of a Receiver, as made, will not destroy the Res. He requested for accelerated hearing of the case before the Trial judge to meet the justice of the matter.

Mr. L.A. Anyaduba, in response, also asked for accelerated hearing of the case before the Trial Judge.

It must be stated right away that the grant of an order of stay of execution of a Trial Court’s order pending determination of appeal is not just decreed as a matter of course or just for the asking. The law relating to the grant is now well settled by decided authorities which leave no one in any iota of doubt. In Vaswani Trading Company v. Savalakh & Co. (1972) NSCC 692, it was, pronounced that a court of appeal should not grant a stay of execution unless there are special circumstances for doing so. This means 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 paralyses, 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 Lawrence Okafor v. Nnaife (supra) at pages 377 – 378; Williams v. Busari (supra) at p. 520; Nigeria Civil Service Union v. Essien (supra) at pages 316 – 317; Utilgas v. Pan African bank (1974) 10 SC 105. Balogun v. Balogun (1969) 1 All NLR 349, Kigo (Nig) Ltd. v. Holman Brothers (Nig) Ltd. (1980) 5 – 7 SC 60.

The other salient point to be considered is that grounds of appeal must contain substantial and arguable points of law. Such need to be recondite points of law in texture. Refer to Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt. 74) 75 at p. 77. To warrant a grant of stay of execution of the Trial court’s order, grounds of appeal must not just scratch the ruling on the surface.

At this juncture, it is imperative to reproduce section 18 of the Court of Appeal Act, Cap 75, Laws of the Federation of Nigeria, 1990. For, it gives a guideline on the grant of stay of execution order pending determination of appeal. It provides as follows:

“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.”

From the provision of the statutory law, as reproduced, it is clear to me that an appeal, per se, cannot operate as a stay of execution. It is not automatic. The court has to consider the salient factors that may lead to a grant of the order of stay of execution pending appeal.

In relation to this application, the first point that should be determined is whether the grounds of appeal contain substantial and arguable points of law. See Martins v. Nicannar Food Co. Ltd. (supra) at p. 77.

The Trial Judge, on 10-6-99, vide Exhibit ‘I’ refused to grant an order of stay. The Learned Trial Judge stated as follows in a brief fashion:

Stay of execution means the Defendant will be entitled to collect rents from tenants after I have agreed with Plaintiffs that the condition is right for a Receiver to be appointed. Application for stay is refused.”

The order of the Trial Court which the Applicant wants to stay pending appeal is the appointment of a Receiver/ Manager over property situate at No. 42, New Market Road, Onitsha. The grounds of appeal, upon a careful appraisal, related principally to the locus standi of the Respondents. I am at one with the Learned Trial Judge that the issue is one to be determined at the substantive hearing of the matter. When determining an ancillary issue such as appointment of a Receiver/Manager as in this case, the Trial Court should be wary and careful so as not to delve into the substantive matter. The Trial Judge was very much alert to his responsibility as he clearly avoided to be dragged into a melee, as it were. At the appropriate time, the issues of locus standi of the Respondents as well as the sole ownership of the applicant shall be determined.

In short, no substantial and arguable points of law relating to appointment of Receiver has been shown to warrant an order of stay of execution of the orders contained in the ruling of the Trial Judge handed out on 1-6-99. Vide section 21(1) of the High Court Law of Anambra State as well as the dictates of the Supreme Court in Uwakwe v. Odogwu (supra) at p. 164, the Trial Judge, with good reasons, found it just and convenient to order that a Receiver/Manager of the property be appointed. He ordered that the Assistant Chief Registrar of the High Court, Onitsha should over-see the property pending determination of the case. The Receiver will have no remuneration. Outgoings and property rates will be paid out of the rents. The Trial Judge ordered that strict accounting must be maintained. With the ensuing rigmarole of the contending parties over the rents to be collected on the property, no better order can be surmised or made. It will not be right to say that the Applicant should be collecting same in the mean time.

The next point to be considered is whether the judgment of this court will be rendered nugatory. The word ‘nugatory’ has been defined as futile, ineffectual, invalid, destitute of constraining force or vitality. See Avery & Co. v. Sorrell 157 Ga. 476, 121 SE 828, 829. It has not been shown that the judgment of this court will be rendered nugatory, futile or ineffectual if stay order is not granted. It has not been depicted in any form that the subject matter will be destroyed. On the contrary, the subject matter – the property as well as accruing rents will be properly preserved by the Receiver/Manager. There cannot be a situation of any form of helplessness foisted on this court in the prevailing circumstances if stay is not granted. If the applicant succeeds in the appeal, he can always have the property and rents at his disposal.

I strongly feel that it will not tally with reason to order a stay of execution which will return the collection of rents to the applicant in the mean-time. The status quo, as presently dictated by the ruling of the Trial Judge, should remain inviolate for now. It is only just and fair to allow the position of the matter remain constant pending determination of the pending appeal for the reasons clearly adumbrated.

Both Learned Counsels to the two parties have requested for accelerated hearing of the substantive matter before the Trial Court to meet the justice of the matter. In the prevailing circumstances, an order in that direction will, in my considered view, meet the reality of the matter. That appears to be the clear way forward. I accordingly make an order for accelerated hearing of the substantive matter by the Trial Judge, Keazor, J. of High Court of Justice, Onitsha, Anambra State.

I come to the final conclusion that the application is devoid of any atom of merit. I accordingly refuse to accede to same. Application is hereby refused and dismissed. The Applicant shall pay N1,000 costs to the Respondent.

Other Citations: (1999)LCN/0592(CA)