University of Agriculture Makurdi & Ors V. Onaja David Ogwuche & Ors (2000)
LawGlobal-Hub Lead Judgment Report
CHUKWUMA-ENEH, J.C.A.
P
ursuant to the interim order granted by this court on 8/12/99 upon an ex parte application brought by the Applicants seeking to stay further proceedings and the judgment of the Court below in the Suit No. MHC/394m/98 then pending at the Makurdi High Court (hereinafter referred to as the “Court below”) the substantive application on notice was adjourned to 10/21/2000 for hearing.
This Court on 8/12/99 upon a motion ex parte supported by an affidavit sworn to by E.C.N. Hundu, Esq., made the following orders in this matter thus:
“(a) That interim order staying proceedings of the substantive matter at the Court below until the motion on notice is heard and determined by this Honourable Court is hereby granted.
(b) That an interlocutory order to stay any judgment delivered by the trial Court and execution of same pending the hearing and determination of appeal on the ruling of the trial Court dated 18/10/99 is hereby granted.
(c) That the substantive application on notice is hereby adjourned to 10/2/2000 as already scheduled.”
The substantive motion on notice was filed on the same date – 23/11/99 as the motion ex parte. On 17/1/2000, the applicant filed yet another motion on notice to effect an amendment to the motion on 23/11/99 by inserting therein a second prayer as was contained in the motion ex parte but inadvertently left out. The motion of 17/1/2000 – a non contentious motion – not being opposed by Mr. Okutepa of Counsel, it was granted as prayed and thus the motion of 23/11/99 was amended to encompass as the second relief in the following terms:
“An interlocutory order to stay any judgment that may be delivered by the trial Court and execution of same pending the hearing/determination of the appeal on the ruling of the trial Court dated 18/10/99.”
At the hearing of the substantive motion of 23/11/99 on 10/2/2000, Mr. Osuman of Counsel for the Applicants conceded that the first prayer in the motion has been overtaken by events. For what it is worth the abandoned prayer is set forth thus:
“An order to stay proceedings of the substantive matter pending the determination of the appeal against the ruling of the Honourable Court below dated 18/10/99.”
Having served on the Respondents’ Counsel the order of this Court of 8/12/99, a chain of reactions was set in motion. The Respondents on 13/12/99 filed a motion on notice in which they prayed for two reliefs as follows:
“(i) An order vacating the orders of this Honourable Court given ex parte on 8th day of December, 1999, in application No. CA/J/272m/99.
(ii) An order of interim injunction restraining the Respondents and their agents herein from refusing the Applicants herein entry to the University of Agriculture Makurdi pending the motion of the respondents herein fixed for 10/2/2000.”.
To put the record straight – on 10/2/2000, the first relief in the substantive motion of 23/11/99 was withdrawn as overtaken by the events that happened at the Court below – the suit No. MHC/394m/99 between the parties before the Court below had been concluded and judgment handed down. The 1st relief was struck out by this Court. Moving the amended motion for stay of execution Mr. Osuman of Counsel referred to the affidavit in support and 14 (fourteen) paragraphs and 5 (five) annexures marked Exhibits ‘A’ to ‘F’ sworn to by one E.C.H Hundu, Esq., a legal practitioner of the law firm of Osuman & Co. The crucial parts of the affidavit are produced as follows:
“(1) That I know as of fact that the Appellants/Applicants identified lapses contained in the Respondents processes filed on 10/9/99 whereof Appellants/Applicants filed a preliminary objection under protest.
(2) That the Honourable trial Court delivered ruling against the preliminary objection on 18/10/99. The ruling is Exhibited and marked Exhibit ‘A’.
(3) That I know as of fact that Appellants/Applicant filed a notice and grounds of appeal in this matter on 26/10/99.
(4) That the Notice and Grounds of appeal raise vital and substantial issues of law to be argued at the hearing of the appeal. The said Notice and Grounds of Appeal is Exhibited and marked as Exhibit ‘B’.
(5) That the appeal essentially alleged that this Honourable Trial Court lacks jurisdiction to listen to or consider evidence in view of some vital, basic and fundamental lapses in the respondents process dated 10/9/99.
(6) That these fundamental lapses remain the same as those that were identified and adumbrated upon before the honourable trial Court.
(7) That the Appellants/Applicants filed application for stay of proceedings pending appeal which application was heard by the trial Court on 9/11/99. The said application is annexed and marked Exhibit ‘C’.
(8) That the trial Court overruled the said application in paragraph 9 hereof on 19/11/99. The said ruling of the honourable trial Court is Exhibited and marked Exhibit ‘D’
(9) that the present application is neither vexatious, oppressive or an abuse on the process of this Court.
(10) That I am informed by E. Kureve, Registrar of the 1st Appellant/Applicant, in our office at 10 a.m on 17/11/99 and I verily believe him thus:
(a) That if the Applicants/Respondents are allowed to return and re-integrate into the University community without passing through the review structures stated in section 19 of the Federal Universities of Agriculture Act No. 48 of 1992; chaos of unprecedented dimension will occasion and a greater portion of the University Community will suffer.
(b) That on 15/11/99 and 16/11/99 the Applicants/respondents staged an illegal demonstration and barricaded the road leading to the 1st Appellant/Applicant and caused greater hardship and fear on Appellants/Applicants’ client’s and members of the public who use the road to visit and transact business with the Appellants/Applicants.
(c) That the Applicants/Respondents’ action in (b) was instigated by their leaders’ letter of 12/11/99 sent to the 2nd Appellant/Applicant. The said letter received by the 2nd Appellant/Applicant on 15/11/99 is exhibited and marked Exhibit ‘E’.
(d) That it was the timely intervention of the police, led by the Benue State Police Commissioner, that dislodged and prevented the Applicants/Respondents from causing further damages and injuries to members of Appellants/Applicants community. The Appellants/Applicants letter to the Police dated 17/11/99 is exhibited and marked Exhibit ‘F’.
(11) That the grant of this application will not prejudice the Applicants/Respondents and it is in the interest of administration of justice in Nigeria.”
The 5(five) exhibits put in extenso are i.e. Exhibit ‘A’ – the ruling of the Court below in suit No. MHC/394m/99 delivered on 18/10/99; Exhibit ‘B’ – the Notice and Grounds of Appeal against “the entire ruling particularly those parts of the ruling that decidedly overruled:
“(a) the objection that the suit not having been supported by an affidavit was incurably defective and therefore incompetent.
(b) the objection that there was absence of proper legal service afortiori the court lacked jurisdiction to adjudicate.
(c) the objection that the suit was premature and therefore not ripe for hearing.”
Exhibit ‘C’ is the Motion on Notice and Affidavit in Suit No. MHC/520m/99 between the parties for an order to stay proceedings of the substantive matter pending the determination of the appeal against the ruling. Exhibit ‘D’ is the ruling of the Court below overruling the application as in Exhibit ‘C’. Exhibit ‘E’ is the letter written from the office of the National Association of Nigerian Students (NANS) to the 2nd Applicant dated 2/11/99, and Exhibit ‘F’ is the Applicant’s letter to the Police dated 17/11/99. The details of Exhibit ‘A’ to ‘F’are very crucial in grasping the story of the Applicants’ case. Mr. Osuman has claimed that no counter-affidavit was filed and drew the Court’s attention to the implication. See Olisa Agbakoba v. Director of Security Service (1993) 7 NWLR (Pt.305) 353 at 365. To further strengthen his case, he adopted the reasons advanced for the ex parte motion and emphasised that if this application were not granted the ‘Res’ would be endangered if not destroyed and the appeal rendered nugatory. Having now referred to the counter-affidavit of 42 (forty-two) paragraphs filed on 17/1/2000 he urged the court to grant the relief.
Mr. Okutepa of Counsel referred to his counter-affidavit of 8 (eight) paragraphs filed on 1/12/2000 to which is exhibited the judgment of the Court below of 18/10/99 in Suit No. MHC/394m/99 and marked Exhibit 2 in his motion praying to vacate the Ex parte Order of 8/12/99. He has alleged that the application of 23/10/99 disclosed no facts amounting to exceptional circumstances to sustain the relief being sought and relied on the affidavits and further affidavits filed. He opined that there is no application to stay the substantive judgment of 1/12/99 as a serious omission and relied on Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383 at 405 – 6 to urge this court to dismiss the application.
Replying on points of law Mr. Osuman cited the case of Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1; (1993) II SCNJ 272.
In this application brought by the applicants and if I may refer to the crux of their relief “to stay any judgment that may be delivered by the trial Court and execution of same … ” the principles to guide this Court in the consideration of the matter are no longer beclouded as they have been expounded as recently as in the case of Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75, (1988) 1 NSCC (Vol.19) 613; by the Supreme Court. See also Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S/C 77; (1972) All NLR 485.
Constrained by the peculiar wording of the relief sought in this application and coupled with the fact that the Notice and Grounds of Appeal exhibited to the affidavit herein appeared to relate to the ruling of 18/10/99 and not to the final decision of 1/12/99, the subject matter of this motion, I find it necessary to explore some of the pertinent principles before getting down to the main issues. This has to be so in view of the peculiar facts of this application. Stay of Execution in its connotation presupposes that there is a subsisting competent judgment to be stayed, as no court has the competence to stay a judgment that is yet to be given i.e. in future.
The grounding of stay of execution is coterminous with the pendency of an appeal and the Appellant has to apply for it; as it is not a matter as of right. Besides, it underscores the presence of a valid Notice of Appeal containing competent grounds in the matter: See Mobil Oil Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383 at 397. Hence, it is a foregone statement that an application for stay has to have a clear avowal as to the effect that an appeal has been so filed. The Notice and Grounds of Appeal are required to be exhibited to the Affidavit in Support of the application for stay. Again, it is trite that the judgment to be stayed has to be placed before the court. Usually, it is exhibited to the affidavit in support of the application for stay as the fact of the existence of the judgment to be stayed is a sine qua non to court entertaining the application. Where it is not exhibited the application is liable to be struck out for want of necessary materials for the application.
The law is now well settled that for a court to interfere with the judgment creditor’s rights to the fruits of his judgment, the judgment debtor has the onus to justify such intervention by showing exceptional circumstances. In this respect, the peculiar facts of the application as depicted in the affidavit in support are to be taken into account. Each case has as in this application to be examined on its peculiar facts. The grant of stay of execution as borne out by decided cases has to accord with reason and sound judicial principles inspite of the peculiar facts of the matter concerned. In this regard, three things must go into the consideration. The principles have been clearly distilled from the case of El-Khallil v. Oredein (1985) 3 NWLR (pt.12) 371 at 376, thus:
“(a) a stay of execution will not be granted if to grant it might deprive the winner in the Court below of the fruits of its victory: Barker v. Ladery (1885) 14 Q.B.D. 769 at 770;
(b) a stay of execution should not be refused if the effect of such refusal would render the appeal nugatory, if it should be eventually successful: Wilson v. Church (No.2) (1879) 12 Ch.D 454 at 457; and
(c) if the request for stay and the subject-matter of the appeal have the same subtratum so that the grant of the one would dispose of the other, the stay of execution should be granted: Metropolitan Real & General Properties Trust Ltd. v. Slater (1974) 1 All E.R. 310.”
See also Martins v. Nicanner Food Co. Ltd. (supra) and Vaswani Savalakh (supra). The primary question to be considered urgently in this application, as it appears to me, is the propriety or otherwise of the wording of the relief sought in the application i.e. the way it was couched. It is paramount in an application of this nature that there be in existence a competent judgment to be stayed. Normally, it is exhibited to the affidavit in support of the application. Its materiality in this application as in applications of this nature has been underlined by decided cases. By using the words ” … that may be delivered by the trial Court …” in framing of the relief sought – it has left no doubt that the judgment to be stayed had yet to be delivered by the date the application was filed. It was still a matter to happen in the future. This much is agreed between the parties and duly averred to in the affidavits. The idea of staying a judgment not yet in being as it were, is not only novel and unsustainable but totally strange to our jurisprudence. From the facts as averred in the counter-affidavit and which have remained unchallenged, the judgment in the substantive Suit No. MHC/394m/99 was delivered on 1/12/99. It is settled law that such a crucial material in the consideration of such an application as the instant one has to be exhibited. It wasn’t to be in this instance because the application for stay incontrovertibly preceded the judgment of 1/12/99. This is clear instance of putting the cart before the horse. To further compound the issue for the applicants, the Notice and Grounds of Appeal marked Exhibit ‘B’ in the supporting affidavit appears to be working at cross-purposes vis-a-vis the relief sought in the application – while the relief as per the motion was seeking to stay “any judgment that may be delivered by the trial Court” the grounds of appeal were specifically challenging the ruling of 18/10/99 with no nexus whatsoever to the substantive judgment being appealed against. This is a serious error. I have earlier on quoted an extract of the part of the decision of the lower Court complained of as contained in the notice of appeal, that is, as per Exhibit ‘B’. In the light of this confusion, with respect, this application has no basis. The two crucial materials i.e. the substantive judgment to be stayed and any evidence of the pendency of an appeal against it i.e. a competent notice of appeal to sustain the application are not in place. What is clear from the applicants’ affidavit and the Exhibits ‘A’ to ‘F’ is that at the time the application was filed i.e on 23/11/99 the judgment to be stayed, that is to say, in the substantive suit No. MHC/493m/99 then pending in the Court below had yet to be reached – being in future. It was given on 1/12/99. Surely, with respect, these facts however benevolently construed amount to no exceptional circumstance within the principles laid down in Martins v. Nicanner (supra). Furthermore, for this application to succeed, there has to be a competent Notice of Appeal; see Amadi v. Okoli (1977) 7 SC 57 at 58 per Idigbe, J.S.C. The instant Notice of Appeal has no bearing on this matter.
The Notice and Ground of Appeal being relied upon for the application relate to the ruling of 28/10/99 (which is not before this Court) and not the judgment of 1/12/99 (- the subject matter of this application). See Mobil Oil Ltd. v. Agadaigho (supra). The end result of my observations is that the Applicants have not placed before this Court any credible materials to ground the relief being sought.
The application is refused and is hereby dismissed. Coming to the motion of notice filed on 13/12/99 not having been moved the same is hereby struck out. Indeed, it was filed to restrain the applicants from preventing the students’ return to the University until the determination of the motion filed on 23/10/99. The Respondents filed a counter-affidavit of 42 paragraphs. This relief is clearly overtaken as the application of 23/10/99 has now been dismissed. In whatever manner one looked at the motion, the relief sought has fallen into desuetude. For the avoidance of doubt the application is also hereby struck out. In the circumstances of this matter, I make no order for costs.
Other Citations: (2000)LCN/0820(CA)
