Mrs Ifeoma Mbah & Anor V. Chief Frank Uduah (2009)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
: This is an Application dated the 22nd day of March, 2007 and filed on same date in which the Appellants/Applicants prayed for the following orders:-
“(1) An Order of this Honourable Court staying the execution of the Judgment of the High Court of the Federal Capital Territory Abuja entered against the Appellants/Applicants on the 24th day of January, 2007 pending the appeal already filed in this Court.
(2) And for such Order or Orders as this Honourable Court may deem fit to make in the circumstances of the Appellants/Applicants case.
“Grounds for the Relief Sought
(1) The Appellants/Applicants have made an application for stay of execution at the lower court.
(2) The Appellants/Applicants have applied to the Appeal Registry of the lower court for the compilation of Record of Appeal.”
In support of the Application is an affidavit of 5 paragraphs and 4 paragraphs of further affidavit.
The Respondent opposed the application and relied on 7 paragraphs Counter Affidavit.
The relevant paragraphs of the affidavits are set out as follows:-
Affidavit in Support:- Paragraphs 3 & 4
“(3) That I have the consent of both the Applicants and my employers to depose to this affidavit.
(4) That I was informed by Sam Ologunnorisa Esq., the Counsel handling this case in our office on the 21st day of March, 2007 of the following facts which I believe to be true and correct.
(a) That the Respondent got a judgment against the Appellants on the 24th January, 2007 at the High Court of Justice, Federal Capital Territory, Abuja (Hereinafter Referred to as the Lower Court).
(b) That the Appellants/Applicants has lodged an appeal against that judgment at the appeal registry of the lower court. A copy of the notice of appeal hereby attached and marked Exhibits S.T. ‘A’
(c) That the appellants/Applicants had earlier applied to the lower court for stay of execution of the judgment pending appeal to this Honourable Court.
(d) That the application was refused by the lower court.
(e) That the ground of Appeal is cogent, arguable and the Applicants have bright chance to succeed on Appeal.
(f) That the facts presented before that lower Court for consideration are contained in the affidavit in support of the motion for stay filed by the Appellants and the counter affidavit filed by the Respondents are hereby attached as Exhibit S. T. ‘B’ and S. T. ‘C’ respectively.
(g) That if the execution of the judgment is not stayed, the appeal would be rendered Nugatory.
(h) That the Appellants/Applicants will be willing to give security for costs in case the appeal is eventually found to lack in merit.”
Further Affidavit – Paragraphs 3 & 4
“(3) That I have the authority of my employers and the consent of the Applicants to depose to this affidavit.
(4) That Emmanuel Abulu of Counsel informed me in Chambers on the 24th day of October, 2007 at 1:00pm of the following facts which I believe to be true as follows:-
(a) That I had earlier deposed to affidavit in support of the motion for the stay of execution dated 22nd March, 2007.
(b) That at the time of the deposition, both the certified true copies of the judgment and the Ruling of the lower court were not ready.
(c) That on the last date the motion came up for hearing, the court adjourned to the 26th day of November, 2007 to enable the Applicants attach the said judgment and ruling respectively to the said application for stay.
(d) That the said certified true copies of the judgment and the ruling of the lower Court is hereby annexed as Exhibit ST ‘D’ & ST ‘E”
Counter Affidavit – Paragraphs 3, 4 & 5
“(3) That I have the consent and authority of the Judgment Creditor/Respondent and my employer to depose to this affidavit.
(4) That Adams Imuenkemhe of counsel handling this matter informed me in the chambers on the 25th day of April, 2007 of the following facts which I verily believe to be true.
(a) That the depositions in paragraph 4e and g, of the Applicant’s affidavit in support of motion are false.
(b) That paragraph 4e of the affidavit in support of motion is false as the grounds of appeal are not only frivolous but also vexatious as they were deliberately articulated to further delay and frustrate the Respondent judgment.
(c) That the judgment sum in this matter is N3.2 Million out of which the Applicants by themselves admitted N1.2 Million in the course of trial. A copy of the judgment is herein attached and marked Exhibit 1.
(d) That the sole aim of the Applicants in this suit is to deny the Respondent of his judgment.
(5) That granting the Applicant’s prayer will greatly prejudice the interest of the Respondent, as he will suffer hardship, as he will be denied the fruit of his judgment.”
Written addresses were ordered in this application.
At the hearing learned Counsel for both parties adopted and relied on their written addresses.
The learned Counsel for the parties did not formulate any issue for determination.
The learned Counsel for the Appellants/Applicants submitted that the granting and the refusal of an application for stay of execution is at the discretion of the Court and in exercising this discretion, the Court must take into consideration the interest of both parties. He referred to paragraph 4e of the affidavit in support and the Grounds in the Notice of Appeal.
He submitted that the Appellants/Applicants need not go into the substance of the case to show that they have a substantial and arguable grounds of Appeal, it is enough to disclose an arguable ground on the face of the Notice of Appeal. He referred to the case of:- Pamol (Nig) Ltd vs. Itiah Agric Project (Ltd) (2005) All FWLR (Part 243) Page 787 at 790.
He went further in his submissions that in an application for Stay of Execution that the Applicant must show a special and exceptional circumstance which will enable the Court to grant a stay. And that what amount to special and exceptional circumstance varies from case to case. In some cases, where the refusal of stay will destroy the Res and render the decision of the Court of Appeal nugatory, the Court will consider it as a special and exceptional circumstance. He relied on the following cases of:-
– Zaboley International Ltd v. Omogben (2005) All FWLR Part 278 page 1172 at 1176;
– FBN Plc v. J. O. Imaseun & Sons Nig. Ltd. (2006) All FWLR part 298 page 47 at 49 Ratio 1 (d) & (e);
– Specialist Konsult vs. River State Government (2002) FWLR (Part 91) at 1478 at 1480 ratio 5.
It was also submitted on behalf of the Appellant that the Court may refuse to grant Stay of Execution if the Respondent cannot secure the refund of the Judgment Debt after the appeal.
Learned Counsel for the Appellants/Applicants also contended that the balance of convenience is in the favour of the Appellants. He urged this Court to grant the application. He relied on the case of:-
– Soyannwo vs. Akinyemi (2002) FWLR Part 104 Page 593 at 607 Ratios 29 & 30.
The learned Counsel for the Respondent on the other hand opposed the application, and he referred to the 7 paragraphs Counter Affidavit.
He submitted that a successful litigant ought not be deprived of the fruits of his success or Judgment. He relied on the cases of:-
– Vaswani Trading Company vs. Savalah & Co. (1972) 12 S.C. Page 77;
Jadesimi vs. Akele (1998) 11 NWLR Part 572 Page 133 at 135.
He stated that the Appellants/Applicants have not shown any special or exceptional circumstance for the granting of Stay of Execution. He also stated that the essence of a Stay of Execution is to preserve the Res pending the determination of the appeal. In the instant appeal he said the Res is money and by paragraph 49 of the Counter Affidavit, the Respondent undertook to pay back the Judgment sum to the Applicants if they succeed on appeal. He referred to the case of:- Sirpi Alusteel Const. (Nigeria) Ltd vs. Snig Nig. Ltd (2002) 2 NWLR Part 644 Page 229 at 232 ratio 5.
He submitted that the duty of a Court in an application for Stay of Execution is to consider very dispassionately the competing rights of the parties, the category of which includes the right of a successful party to reap the fruits of his victory and the demand of Justice to preserve the Res pending the determination of the appeal, so that the appeal if successful should not be rendered nugatory. He relied on the cases of:-
– Deduwa vs. Okorodudu (1974) 1 All NLR Part 1 Page 272;
– Kigo (Nig) Ltd vs. Holman Bros (Nig) Ltd (1980) 5 – 7 S.C. Page 60.
It was contended on behalf of the Respondent that the mere fact that the grounds of appeal are arguable cannot itself be a ground for granting Stay of Execution. It must be considered in conjunction with other facts. He relied on the case of.-
– Sirpi Alusteel Const. (Nig.) vs. Snig Nig. Ltd (supra).
He finally urged that the application be dismissed.
The general principle of law is that the litigant who succeeded at the trial should enjoy the fruits of his Judgment.
See – Nwabueze vs. Nwosu (1988) 4 NWLR (Part 88) page 257;
– Okafor vs. Naife (1987) NSCC Part II Page 1194.
In UBN vs. Fajebe Foods & Another (1994) 5 NWLR Part 344 Page 342 to 343 AND Chief D. Achor & 1 Other vs. M. Aduku and 1 Other (2005) 27 WRN Page 178, the principles guiding the grant of Stay of Execution pending appeal were stated as follows:-
“In considering whether or not to grant a Stay of Execution pending an appeal, the Court will take into consideration the following points:-
(a)The chances of the Applicant on appeal. If such a chance is virtually nill, then a Stay may be refused. See:-
– Vaswani Trading Coy vs. Savalakh (1972) 12 S.C. Page 77;
Wey vs. Wey (1975) 1 S.C. Page 1;
Odufaye vs. Fatoye (1975) 1 NWLR Page 222;
Shoge vs. Musa (1975) 1 NWLR Page 133.
(b)The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case (Dada v. University fo Lagos (1971) 1 U.L.L.R. page 344; Utilgas Nigerian & Overseas Co. Ltd. vs. Pan African Bank Ltd (1974) 10 S.C Page 105.)
(c) Whether if the appeal succeeds, the Applicant will not be able to reap the benefit of the Judgment on appeal.
(d) Where the Judgment is in respect of the money and costs whether there is a reasonable probability of recovering these back from the Respondent if the appeal succeeds (Ebegbuna vs. Ebegbuna (1974) 3 W.S.C.A. Page 23.
(e) Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the Appellant of the means of prosecuting his appeal (Ewfisi vs. Mbanugo (1970-71) 1 ECSLR Page 100)
(f) A stay may be ordered in respect of the sum payable whilst an order for payment of the costs to the Counsel for the successful party is made on his giving an undertaking that he personally would refund the sum of money in case the appeal succeeds.
(g) In granting a stay of execution, the Court exercises a discretionary power which must be exercised judiciously and judicially.
(h) A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an Applicant for a stay but does not adequately take into account the Respondent’s equal rights to justice is a discretion that has not been properly exercised.
(i) A winning Plaintiff or party has a right to the fruits of his judgment and the Courts will not make a practice, at the instance of an unsuccessful litigant, of depriving a successful one of the fruits of the Judgment in his favour until a further appeal is determined.
(j) An unsuccessful litigant applying for a stay must show special circumstances or exceptional circumstances eloquently pleading that the balance of justices obviously weighed in favour of a stay.
(k) The onus is on a party applying for a stay pending appeal to satisfy the Court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable.”
Also in Vaswani Tradinq Coy vs. Savalakh (supra) The Supreme Court eruditely stated the principles governing the grant or refusal of Stay of Execution as follows:-
“When an order or Judgment of a lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or Judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the Court of Appeal and indeed any Court will not make a practice of depriving successful litigant of the fruits of the success unless under very special circumstances………………………
…………………………….”
In this application, a careful reading of paragraphs 3 and 4 of the in support of the application, paragraphs 3 and 4 of the further along with paragraphs 3, 4 and 5 of the Counter Affidavit revealed Res in the case is money. And where Judgment has been entered payment of a sum of money and the Judgment debtor as in this application seeks a Stay of Execution, the affidavit or affidavits relied upon by the Appellants/Applicants in such a situation apart from stating the relevant facts upon which to consider the principles for stay, must ensure that the facts are full and frank, including a complete and accurate account and description of all the Appellants/Applicants income, assets, interests and properties as well as their obligations and liabilities.
See the following cases:-
– Ikeja Real Estate Ltd vs. National Bank of Nigeria Ltd (2000) FWLR Part 9 Page 1448 at 1453 Paragraph E ratio 6;
Josiah Cornelius vs. Ezenwa (2000) 8 NWLR Part 670 at 625 Paragraphs A – D;
– Chukwu vs. Onyia (1990) 2 NWLR Part 130 Page 80 at 84-85.
The Appellants/Applicants have not furnished the Court with their statements of account as enjoined by law so as to assist the Court in exercising its discretion either to grant or refuse the application.
In paragraph 4(e) of the affidavit in support of the Application Exhibit “A” which is the Notice of Appeal was attached and it was stated that the appeal is cogent, arguable and that the Appellants/Applicants have bright chance to succeed on Appeal.
A careful examination of Exhibit “A” showed that it did not contain any recondite point of law. And it is not every ground of appeal which has raised an important or difficult point of law that can suffice as special circumstance.
See the case of:-
– Ajomale vs. Yaduat No.2 (1991) 5 NWLR Part 191 Page 266.
In T. S. A. Ind. Ltd vs. Kema Investment Limited (2006) 10 WRN Page 66 at 84 lines 15-30 Ratio 6. It was held by the Supreme Court per Ogbuagu JSC thus:-
“It is settled that the fact that an Appellant has wonderful, substantial, impressive and arguable grounds of appeal is not a special circumstance for granting a stay. In other words, it is not every case where grounds of appeal raise point or points of law that Stay of Execution will be granted.”
In view of the foregoing, after a careful examination of the affidavit in support of the application, the further affidavit, the counter affidavit and the submissions of both counsel, it is my view that the affidavit in support of the application as well as the further affidavit are scanty and they lack any substance. Therefore the Appellants/Applicants have not been able to make out any case to warrant granting the application for Stay of Execution of the Judgment of the trial Court.
In the result, the application lacks merit and it is hereby dismissed.
The Respondent is entitled to costs which is fixed at (N30,000.00) Thirty Thousand Naira against the Appellants/Applicants.
Other Citations: (2009)LCN/3425(CA)
