Kosofe Local Government V. Segun Demuren (2002)
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GALADIMA, J.C.A.
This is a motion on notice, brought by the appellant pursuant to Order 3 rules 3 (1) (3) and (4) of the Court of Appeal Rules, 1981, praying the court for the following reliefs:
- An order extending the time, within which to apply for the stay of execution of the ruling, dated 25th April, 2001.
- An order staying the execution of the ruling dated 20th April, 2001, pending the determination of the appeal filed by the appellant/applicant.
- And for such further order or orders as this Honourable Court, may deem fit to make in the circumstances of this case.
The application is supported by a 20 paragraph affidavit. On 2/5/2002, applicant filed further affidavit containing 15 paragraphs.
The respondent filed counter-affidavit of 15 paragraphs in opposition to the application. Applicant attached a number of documents, which are marked exhibits’ A’, ‘A1’ , and ‘B’, being the notice of appeal, treasury receipt, and the ruling of the lower court respectively.
Also annexed are exhibits ‘C’ ‘D’ ‘E’ F’ and ‘G’; Exhibit ‘F’ being the certified copy of judgment of the lower court.
On 7/5/2002, we took argument. Learned Counsel for applicant, Mr. O. Oyenuga, relied on all the paragraphs of the affidavit in support of this application, particularly paragraphs 6, 13 and 19, and also paragraphs 6 – 11, 12, 13 and 14, of the further affidavit, in support of the application. He argued that, the notice of intention to commence legal proceedings was defective as it was not served on the Secretary to the applicant’s Secretary. Reference was made to the case of Shomolu Local Government Council v. Shakiru Agbede (1996) 4 NWLR (Pt. 441) 174 at 176. Drawing our attention to the weak financial position of the applicant, as the main reason why this application ought not to be granted, learned Counsel also reasoned that to grant this application would deprive the applicant resource to prosecute its appeal. Reliance was placed on the case of Gani Fawehinmi v. Halius Akilu (1990) 1 NWLR (Pt. 127) 450.
Opposing this application, the respondent, Mr. Segun Demuren, the learned Counsel who appeared in person, remarked that he has filed a 15 paragraph counter-affidavit on 7/3/2002. He referred us to paragraphs 9, 10, 11, and 12, and submitted that the applicant has deprived him of enjoying the fruit of his judgment sum, which to date stood at N685,000. He further submitted that the applicant has failed to satisfy the basic principles guiding the grant of application for stay of execution as stated in Ise-Oluwa (Nig.) Ltd. v. Nigeria Distilleries Ltd. (2001) 6 NWLR (Pt. 709) 427 at 435. He urged the court to dismiss the application or in the alternative grant it on condition that the application shall be ordered that the judgment sum to be paid into interest yielding account of a reputable bank to abide the judgment of this court on appeal so that any successful party will collect the principal sum with interest.
Some of the principles guiding grant of application for stay of execution have been given in a plethora of cases of the Supreme Court and this court as including:
(a) The existence of special or exceptional circumstances;
(b) The preservation of the res or subject-matter of the litigation. This is to ensure that the appeal is not rendered nugatory, upon success.
(c) The subject-matter of the appeal and the request for the stay having or sharing the same substratum.
(d) Where the applicant will be financially handicapped to prosecute the appeal; although poverty per se is not a ground for granting an application for stay of execution, however poverty which results in inability of prosecuting the appeal could be; and
(f) Where the appeal raises an arguable or substantial issue of law.
I would like to state that the onus is placed squarely on the applicant to establish one or more of these principles, especially the existence of special or exceptional circumstances, and this must be shown on the face of their affidavit. See Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5 – 7 SC 60; Shodeinde v. The Registered Trustees of The Ahmaddiya Movement-in-Islam (1980) 1 – 2 SC 163; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Henkel Chemicals Nigeria Ltd. v. Henkel KG.A.A. (1993) 1 NWLR (Pt. 269) 356.
It is a trite law that a successful litigant should not be deprived of the fruits of his judgment as decided in Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77, the locus classicus on authority for stay of execution. However, certain events occur which make the successful party to wait for a while, till the appeal filed by the judgment debtor has been disposed of. The special or exceptional circumstances which have received judicial recognition include: –
(a) where execution will have the effect of destroying the subject-matter of the action;
(b) where execution will foist on the court especially, the Court of Appeal a situation of complete helplessness.
(c) where execution will render nugatory any order or orders of the Court of Appeal;
(d) where execution will paralyse the exercise by the litigant of his constitutional right to appeal;
(c) where the appellant cannot be returned to his status quo if the appeal succeeds; or
(f) where the appellant has an important point of law to argue on appeal.
I have carefully considered the affidavit evidence of both parties as well as the submission of both learned Counsel to the parties predicated on the evidence. Guided by the principles established in Savalakh’s case (supra) and after careful study of the grounds of appeal, I feel the grounds are arguable but not substantial and they do not raise recondite area of law, which needs a consideration of an appeal court. In the instant case, the applicant has not shown special or exceptional circumstances, which vary, from case to case and which must involve a consideration of some collateral circumstances.
While in the circumstances, I am convinced to extend time to the applicant to apply for a stay of execution of ruling of the lower court dated 25/4/2001. The applicant, to my mind has not shown strong or exceptional circumstances to grant unconditional stay of execution of the judgment sum. At this stage, I must refrain from pronouncing or commenting on the issue of jurisdiction raised in the appeal, which be canvassed in the substantive suit. See Hart v. TSKJ (Nig.) Ltd. (1997) 8 NWLR (Pt. 517) 424; Shell Petroleum Development Co. (Nig.) Ltd. v. Edamkue (1998) 13NWLR (Pt. 580) 123.
In the circumstances, I must refuse to grant the applicant unconditional stay of execution of the judgment sum.
Be that as it may, I am guided by section 18 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, regarding the question of conditional stay of execution as suggested by the respondent. The section provides as follows:
“18. An appeal under this part of this Act, 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.”
This provision allows me to grant conditional stay, notwithstanding the refusal of unconditional stay. In the celebrated case of THE ANOT LYLE (1986) 11 PD 114 at 116, it was stated thus:
“The court does not make a practice of depriving a successful litigant of the fruit of his litigation and locking funds to which prima facie he is entitled: Balogun v. Balogun (1969) 1 All NLR 349.”
Applying these considerations to the instant application, it is hereby ordered that a conditional order of stay of the judgment of the Lagos State High Court by IDOWU (J), upon condition that the applicant deposits in the name of Deputy Chief Registrar of this court, the judgment sum of N685,000, into interest yielding account, with a Moloney Branch of the First Bank of Nigeria, Lagos, on or before the 4th day of June, 2002, with current interest Bank rate chargeable. The stay of execution of the order of the Lagos State High Court of 25/4/2001 is therefore, conditionally granted upon the applicant, complying with the above condition imposed by this court pending the determination of the appeal lodged in this court.
The respondent is entitled to the cost of this application, which I fix at N3,000 against the applicant.
Other Citations: 2002)LCN/1192(CA)
