Mazi Oruruo a. Oruruo V. Godwin Ugwu (2006)

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SULEIMAN GALADIMA, J.C.A.

The appellant has brought this application praying for the following order:

“An order staying execution of the judgment of the High Court, Enugu Judicial Division presided over by Hon. Justice J. C. N. Ugwu, Chief Judge of Enugu State, in suit No. E/97/99, Mazi Oruruo A. Oruruo v. Godwin Ugwu, delivered on the 29th day of October, 2003 at the Chief Judge’s Court, Enugu in the Enugu Judicial Division, Enugu State, pending the determination of the appeal which notice of appeal was filed at the High Court Registry on 2/12/03.”

In support of appellant’s application is an affidavit of 22 paragraphs and a number of exhibits including the ruling of the lower court refusing to set aside its judgment.

The respondent filed counter-affidavit of 22 paragraphs in opposition. He also filed a notice of preliminary objection. The applicant filed a counter-affidavit to the respondent’s notice of preliminary objection contending that the respondent having filed a counter-affidavit to the applicant’s motion, the said respondent has waived every right to any objection because he cannot approbate and reprobate and that it is against the procedural law to file a counter-affidavit and a preliminary objection after 4 months.

First I must consider the preliminary objection raised by the respondent against the application for a stay of execution of the judgment of the lower court delivered on 29/10/2003. The objection is based on the ground that the application for a stay is incompetent, and lacks merit having not complied with the conditions precedent as provided for in the rules of court and the Law. At page 2 in paragraph 2 lines 7-9, of the applicant’s written address/submission to his application, it is stated thus:

“It is worthy to note that applicant’s notice of appeal and the other processes were withdrawn on 4/4/05 and 29/6/05 due to errors on the prayers of the applicant and were re-filed on 26/7/05”.

It is the contention of the learned counsel for the respondent that upon the withdrawal of the notice of appeal and other processes the appellant’s case was struck out and that no notice of appeal and grounds of appeal, have been filed by the appellant either in this court or in the court below and annexed to the present application for stay of execution. By his own showing the applicant agrees, as deposed to in paragraphs 15, 16 and 17 of the affidavit in Support of the application, that on 4/6/05 his counsel applied to withdraw the motion and other processes before this court but that another notice of appeal was filed at the court below. This was referred to as exhibit ‘E’.

I have carefully studied exhibit ‘E’, the purported notice of appeal dated 9/5/2005. It is not shown when it was filed save that it bears the stamp of Enugu High Court with a date of 16/5/05 endorsed therein. This mere endorsement does not appear to me that after the withdrawal of the notice of appeal and other court processes and it was struck out, the applicant filed his notice of appeal either in this court or in the court below. The position of the law is that an application for a stay of execution of a judgment pre-supposes that there is a valid pending appeal. This court will not consider an application for stay of execution in respect of an invalid appeal.

Although at this stage the applicant is not to prove that appeal will succeed, the pending appeal must be one that is arguable.

Since the applicant has withdrawn his notice of appeal and other court processes, then one may ask where the basis for the instant application for stay is. The basis for the application for stay of execution of a judgment is that there is a valid pending appeal. No court will consider an application for stay of execution in respect of an invalid appeal.

An appeal which has been withdrawn under Order 3 rule 18(5) of the Court of Appeal Rules, 2002, whether with or without an order of this court, shall be deemed to have been dismissed. In the instant case, the court granted the application of the applicant to withdraw the appeal. There is no valid appeal pending before this court upon which the present application can be considered.

Besides, in the face of this firmly established flaw as clearly stated above, learned counsel for the respondent further contended that the filing of the application for stay of execution by the applicant was not brought within the time stipulated by the rules of this court.

It is not disputed that the applicant’s application for stay of execution was refused by the lower court on 11/12/2003. No explanation was given for the long delay in filing similar application before this court, although the present application for stay of execution dated 13/7/2005 was filed on 26/7/2005. It would appear what necessitated this instant application is because the learned trial Judge dismissed similar application before him. Applicant is now complaining that, in the circumstances, he was not given opportunity to be heard. I agree with the learned counsel for the respondent that the applicant failed to utilize the provision of Order 3 rule 3(3) of the Rules of this court, 2002. No special circumstances have been shown which make it impossible or impracticable for the applicant not to have had his application considered in the court below. The applicant has not helped the matter, even if this application is to be considered on its merit in view of the serious lapses that have been shown above.

There are still more such lapses. Applicant averred that a copy of the judgment of the High Court delivered on 29/10/2003 in favour of the respondent in respect of his claim was annexed to his application for a stay of execution as exhibit ‘B’. With due consideration, what the applicant annexed to his application as exhibit ‘B’ is not a copy of the judgment of 29/10/2003 but a ruling of 1/12/2003 by the lower court refusing to set aside its judgment, observing that the application was brought fraudulently and in extreme bad faith. Applicant must show utmost good faith in an application of a stay of execution of judgment of a court. It is a relevant consideration in such an application. Going through the ruling and the overall circumstances of this matter, I am quite averse to the tactics and gimmicks of the applicant, intended to deprive the respondent from enjoying the fruit of the judgment he obtained.

On the whole, in the final conclusion, the applicant has failed to disclose exceptional or special circumstance to enable me exercise my discretion to grant him a stay of execution of the judgment of the lower court.

This application has no merit and it is accordingly dismissed.

There shall be costs of N5,000.00 in favour of the respondent.

Other Citations: (2006)LCN/1916(CA)