Mrs Monica a. Oguntoyinbo V. Olufemi O. Oguntoyinbo (1999)

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OGUNTADE, J.C.A.

On 29th June, 1998, Adeyinka J. sitting at the Ikeja High Court of Lagos State delivered judgment in the divorce petition brought by the respondent on this application Mr. Olufemi O. Oguntoyinbo against the applicant Mrs. Monica A. Oguntoyinbo.

The final orders made by Adeyinka J read as follows:

“(1) A decree nisi of Dissolution of marriage is hereby made and the marriage solemnised between the petitioner and the respondent on the 24th day of August, 1965 at the Marriage Registry, Lagos is hereby dissolved on the petition brought by Olufemi Olanrewaju Oguntoyinbo.

2. The decree nisi shall become absolute after three months here unless within that period sufficient cause is shown to the court why the decree nisi should not be made absolute.
3. The respondent’s claim for judicial separation and for settlement of properties are hereby dismissed.
4. The petitioner shall pay to the respondent the total sum of N8,000.00 (Eight Thousand Naira per month being maintenance and accommodation allowances commencing from today the 29th day of June, 1998.
5. The respondent shall give up possession of the property situated at Plots 8, 9 and 10 Olukemi Layout Off Ring Road, State Hospital Road, Elekunkun, Ibadan, Oyo State on or before the 30th day of September, 1998.”

The respondent before the lower court was dissatisfied with the said judgment and on 13th July, 1998, she filed a Notice of Appeal against it, raising five grounds of appeal. She has now filed this application praying for an order staying the execution of the judgment of the lower court pending the determination of the appeal. The applicant has not indicated which of the 5 orders made by the lower court she wants this court to stay. In paragraphs 8 to 13 of the affidavit in support of the application, the applicant deposed;

“8. That the res in the matter is the matrimonial properties known as (i) Plot Nos. 8, 9 and 10 Olukemi Layout Ring Road Elekunkun Ibadan, No. 23 Oyeyemade Street, Santos Layout, Dopemu, Lagos.

9. That the appellant is currently living in matrimonial property known as Plots 8, 9 & 10 Olukemi Layout, Off Ring Road, Elekunkun, Ibadan and has always been in possession.
10. That the respondent/petitioner is currently living in matrimonial property known as No28 Oyemade Street, Santos Layout, Dopemu, Lagos and has always been in possession also.
11. That the respondent/petitioner has threatened to sell of (sic) the matrimonial property at Plots 8, 9 & 10 Layout, Off Ring Road, Elekunkun, Ibadan where the appellant currently resides.
12. That unless a stay of execution is granted pending the hearing and determination of the appeal, the res will be destroyed and all the appellant will obtain in the most likely event of the appeal being successful will be a mere barren judgment.
13. That unless a stay of execution is granted the respondent/petitioner would take steps to have the property at Plot Nos. 8, 9 & 10 Olukemi Layout Off Ring Road, Elekunkun Ibadan, sold off thereby fostering on the Court of Appeal a situation of complete helplessness and rendering nugatory whatever orders of the Court of Appeal might subsequently make.”

Given the paragraphs reproduced above from the affidavit of the respondent/applicant, it would seem that the order of the lower court which she wants us to stay is the 5th order which directed her to give up possession of the property situate at Plots 8, 9 & 10, Olukemi Layout, Off Ring Road, Elekunkun Ibadan.

On 4/12/98, the petitioner/respondent filed a counter-affidavit. On 22/1/99, he filed another counter-affidavit Yet again on 16/1/99, the petitioner/respondent filed a 2nd further counter -affidavit. On 9/6/99, the applicant filed a Reply to counter affidavit dated 12/1/98, 22/1/99 and 16/2/99. She had on 11/12/98 filed a further affidavit in support of the motion.

In the affidavit evidence before the court the respondent deposed that each time he visited Ibadan, he stayed in the property at Ibadan and that he never formed the intention to sell the house. Further the respondent stated that he was willing to pay for twelve months in advance the amount ordered by the lower court to be paid to the applicant for maintenance and accommodation.

Are there any special circumstances in this matter necessitating the grant of an order staying the execution of the terms of the judgment of the lower court as earlier set out in this ruling? It is trite law that a litigant is not to be deprived the fruits of the judgment in his favour, unless there are special or exceptional circumstances. See the Annot Lyle (1886) 11 P.D., 114 at 116, Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77.

The only reasons given by the applicant are that (1) the respondent has threatened to sell the property at Ibadan and that if the order for stay is not granted, the judgment in the appeal before this court may be rendered nugatory (2) The applicant may be evicted from the property at Ibadan. With respect to the prospect of the respondent selling the property at Ibadan, I think that the doctrine of lis pendens comes into play here.A person who buys a property subject to ongoing litigation acquires no interest-See Osagie v. Oyeyinka (1987) 3 NWLR (Pt. 59) 144. As to the possibility of the applicant being evicted, I am satisfied that the judgment of the lower court has sufficiently taken care of the needs of the applicant as the judgment provides that the applicant be paid a total sum of N8,000.00 monthly which the respondent has undertaken to pay 12 months in advance. I am satisfied that if the applicant wins on appeal, the judgment of this court will not be rendered nugatory.

In Balogun v. Balogun (1969) 1 All NLR 349, the Supreme Court held that if there are grounds of appeal which raise substantial issues of law in an area in which the law is to some extent recondite, this may be taken as a special or exceptional circumstance to justify the grant of an order staying execution. I have looked at the grounds of appeal filed and I am unable to say that the grounds of appeal raise any substantial issues of law. The grounds of appeal relating to settlement of property are grounds four and five and read thus:

“Ground 4

The learned trial Judge erred in law by failing to consider the material contradictions in evidence of the respondent/petitioner an exercise that occasioned a miscarriage of justice.

Particulars

1. The petitioner testified on oath that the land at Oyemade Street was bought in 1975 and the house was completed in 1976.
2. The petitioner gave evidence that he use to send her to buy building material when he was building the houses.
3. The petitioner gave evidence that she did not supervise the building at Ibadan.

“Ground 5

1. The learned trial Judge erred in law when he failed to consider the decision of the Court of Appeal in the case of Kafi & Kafi in the settlement of the properties of the parties as submitted by the respondent/appellant counsel.

Particulars

i. The learned trial Judge shut his eye to the case of Kafi & Kafi cited by the appellant

ii. The learned trial Judge failed to consider the contribution of the appellant in settlement of the properties.”

Now it is settled law that the judgment of an appellate court is often strictly circumscribed by the relief sought by the appellant in the notice of appeal. The relief which the appellant/applicant asked for in her notice of appeal reads:

“To allow the appeal reverse the trial court’s judgment of 29th June, 1998 in entering a decree nisi of dissolution of marriage based on the petition brought by petitioner/respondent.

“To set aside the judgment of Honourable Justice Afolabi Fatai Adeyinka dated 29th day of June, 1998.”

If the appeal succeeds on the appellant’s grounds of appeal, this court, in accordance with paragraph one of the relief above can only pronounce a decree nisi on the respondent/applicant’s petition; and with respect to the second paragraph, set aside the judgment of the lower court. How does either of these alternatives make the applicant the owner of the property at Ibadan in respect of which the applicant has centred her application for stay of execution?

This application in my view has no merit. It must be and is accordingly refused. I make no order as to costs.

Other Citations: (1999)LCN/0584(CA)