West African Examinations Council V. The Governing Council of Industrial Training Fund & Another (2008)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A
This is an Application filed on the 29th day of September 2006 in which the Applicant prayed for the following relief:-
“An order of the Honourable Court staying the execution of the Judgment of the Federal High Court No. 3, Abuja dated 2nd day of March 2006, pending the determination of this Appeal.”
In support of the Application is an affidavit of 24 paragraphs, 6 paragraphs further and better affidavit and another 8 paragraphs further and better affidavit.
The Respondents opposed the Application and relied on 18 paragraphs counter affidavit.
The relevant paragraphs of the affidavits are set out as follows:-
AFFIDAVIT IN SUPPORT
“2 – 23”
“2. That I am a legal practitioner, I am familiar with the facts of this case.
3. That I have the consent and authority of both my employers and the Applicant to depose to this affidavit.
4. That on the 2nd day of March, 2006 the Federal High Court No.3, presided over by Justice B.M.F Nyako (trial court) entered judgment in favour of the Respondents in this suit in the sum of N50,000,000.00 (Fifty Million Naira). A copy of the said Judgment is contained in pages 63-68 of the Record of proceedings of the trial court already before this court.
5. That the Applicant being dissatisfied with the judgment referred to above, have appealed to this Honourable Court.
A copy of the Notice is hereby attached and marked as “Exhibit 4″.
6. That I know as a fact that the grounds of appeal filed by the Applicant raises substantial, arguably and recondite Issues of law to be considered.
7. That I equally know as a fact that the appeal may be rendered nugatory if stay is not granted.
8. That I also know as a fact that if the judgment sum is paid to the Respondents and the Applicants succeeds on appeal, the Respondent will not be able to refund the judgment sum to the Applicant.
9. That I also know as a fact that the appeal has great chance of success, and to enforce the judgment will be ruinous to the Applicant in this case.
10. That the applicant is willing and ready and has the means to satisfy the judgment debt if the appeal fails.
11. That I know as a fact that the execution of the judgment in this suit will foist a situation of hopelessness on the Applicant if the appeal succeeds.
12. That I know as a fact that the judgment in this suit was entered against the Appellants/Applicant by the trial court based on the interpretation and application of the I.T.F. Act.
13. That I equally know as a fact that the interpretation and application of the I.T.F Act in this suit forms one of the grounds of Appeal pending in this suit.
14. That I know as a fact that it is the interpretation and application I.T.F. Act by this Honourable Court will determine the success or failure of the pending appeal in this suit.
15. That I know as a fact that the obligation of Appellant/Applicant to pay the judgment sum in this suit and to pay subsequent contribution to the respondent fund depends on the decision of this Honourable Court in the pending appeal in this suit.
16. That I also know as a fact that the subject matter of this suit and the pending appeal is the interpretation and application of the I.T.F. Act in relation to the Appellant/Applicant.
17. That it will serve the interest of the justice to preserve the issues of the law raised in ‘Exhibit A” pending the determination of the Appeal.
18. That I also know a fact that the maintenance of the status quo until determination of the pending appeal in this suit will meet the justice of the suit.
19. That an application for any stay of execution was earlier made to trial court but could not be taken due to the fact that this appeal u/as entered in this court during the pending of the said Motion at the trial court.
20. That in view of the paragraph 19 above, the Applicant had no option than to withdraw its Motion pending at the trial court and to file same in this court.
27. That on the 26th day of May, 2006 at about 3:30 p.m. MR. ADIKA NDUBISI (Head of Legal Unit of the Judgment Debtor/Applicant) informed me in Chambers of the following facts. Which I verily believe same to be true:
i. That if the Applicant/Appellant is made to pay at this stage the judgment sum, it would entail the applicant diverting other sums of money meant for other expenditures such as conduct of examinations and is attendant logistics etc to offset the judgment sum.
ii. That he knows as a fact and having regard to paragraph 21 (a) above, the Applicant would suffer more hardship if this application is refused.
22. That he also knows as a fact this appeal has merit.
23. That it will serve the interest of justice to grant this application as the Respondents will not be prejudiced.”
COUNTER AFFIDAVIT
“3 – 17”
“3. That I have the consent and authority of both the Respondent/Judgments creditors and their solicitors to depose to this court Affidavit.
4. That I know as a fact that judgment in this case was entered in favour of the Respondents and against the Appellant/Applicant by the trial lower court on 2nd March 2008.
5. That in the said judgment, the Appellant/Applicant was held liable to register with Respondents and also ordered to pay a sum of N50,000.000 (Fifty Million Naira) only as contribution covering 1995 to 2000.
6. That contrary to paragraph 1 of the Affidavit in support of the Appellant motion for stay of execution, the Respondent/Judgment Creditor as a Federal Government parastatal of “A” category has the financial muscles and capability to pay back the Judgment sum with interest in case appeal of the Appellant/Applicant succeeds.
7. That I also know as a fact that the Respondents have the means and capacity to refund the judgment sum to the Appellant/Applicant if this appeal succeeds.
8. That consequent upon foregoing the Respondents have committed themselves by filing at the Registry of this Honourable Court an undertaking to refund the judgment sum in case the appeal succeeds. The certified true copy of the said General/Chief Executive Officer of the 1st Respondent and duly filed at the Registry of this Honourable Court on 3rd October, 2006 is attached herein with and marked as EXHIBIT MS1.
9. That in addition to EXHIBIT MS1 the Respondents/Judgment Creditors’ statement of Account at Zenith Bank plc for 6 months is attached herewith and marked EXHIBIT MS2 to show the financial status of the Respondents.
10. That on the 24th April, 2006, at about 1.00pm Sayo J. Odumosu Esg. (Principal Solicitor) informs me in our office of the following facts which I verily believe to be true.
(a) That the grounds of appeal filed by the Applicant do not raise any substantial, arguable and reconcile issues of law as alleged by the Appellant/Applicant.
(b) That refusal of this application for stay of execution cannot and will not render this appeal nugatory
(c) That the Applicant’s appeal does not have great chance of success and to enforce the judgment will not be ruinous to applicant.
(d) That this application is brought to frustrate the Respondent/Judgment Creditors from enjoying the fruits of the judgment.
(e) That on the 20th March, 2006, the Appellant/Judgment Debtor filed an application at the lower trial court for stay of execution.
(f) That the Respondent/Judgment creditors through Respondent on 21st April 2006 filed an undertaking as to Refund of the judgment sum of N50 Million to the Appellant herein with interest in the unlikely event that this appeal succeeds.
(g) That the Respondents further filed a Counter Affidavit to the Appellant’s application on 24th April, 2006 also at the Registry of the lower trial court.
(h) That the motion for stay of execution was fixed for 2/5/06.
The Appellant/Judgment Debtor asked for an adjournment to enable it respond to the Respondents Counter Affidavit as well as the Undertaking as to refund served on it in Court 2/5/06.
(i) That based on the preceding paragraph, the said motion was adjourned to 5/6/06 for hearing.
(j) That when the motion came up again for hearing on 5/6/06, the case file was said to be at the Appeal Section of the lower Court.
(k) That the matter was further adjourned off record to 3/7/06 for the motion.
(l) That on Friday, 30/6/06, Rotimi Ogunjide, Counsel to the Respondent went to court to find out if the case file had been returned to the court by the Appeal Section.
(m) That the said Rotimi Ogunjide of Counsel was asked by the court clerk to go and find out where case file u/as at the appeal section of the lower trial court.
(n) That on getting there, one Jane Ajayi, a Senior Registrar at the Appeal Section of the lower Court informed Rotimi Ogunjide Esq. of Counsel to the Respondents that the case file had been transferred to the Court of Appeal at the instance of Counsel to Appellant /Applicant.
(o) That according to Jane Ajayi, the attention of Counsel to Appellant was drawn to their motion, which had been adjourned by the lower trial court to 3/7/06 for hearing.
(p) That Jane Ajayi further informed our Rotimi Ogunjide Esq. of Counsel to the Respondents that counsel to the Appellant /Judgment Debtor insisted that the motion was theirs and that same could be abandoned, as the Respondents/Judgment Creditors would lose nothing.
(q) That immediately, Jane Ajayi asked one Samson also of Appeal Section of the lower court to go and retrieve the case file from the court of Appeal for the purpose of the court proceedings of 3/7/06.
(r) That on 3/7/06, surprised that the case file had been retrieved by the lower court for he purpose of hearing the motion for stay of execution, learned Counsel to the Appellant/Judgment Debtor informed the lower Court that he had already filed a similar application at the Court of Appeal.
(s) That based on the preceding paragraph, Counsel to the Appellant withdrew the motion 17th March 2000 at the lower Court without moving or arguing same.
(t) That as a result of the withdrawal of the said Motion, the lower trial Court on 3/7/06 struck out the Appellant’s Motion for stay of execution filed on 20/3/06.
(u) That prior to the withdrawal and striking out of the said Motion, there was no such or similar application before the court of Appeal as alleged by the Appellant/Judgment Debtor before the lower trial Court.
(v) That on 4/7/06, the Appellant/Judgment Debtor filed another motion for stay of execution at the Court of Appeal.
(w) That this application as presently constituted is frivolous and an attempt to truncate the cause of the justice.
(x) That execution of Judgment in this suit will not foist a situation of hopelessness or helplessness on the Applicant if the appeal on the Applicant if the appeal succeeds as alleged.
11. On Thursday, September 28, 2006 at about 11.30 am in our office, Rotimi Ogunjide Esq. of Counsel to the Respondents informs me and I verily believe him of the following facts:
i That the Appellant/Applicant’s Motion for stay of execution dated 4th July 2006 came up for hearing before this Honourable Court.
ii. That upon discovery that the said application was not competent, the Appellant through its counsel withdrew the application and same was accordingly struck out.
iii. That on Friday, September 29, 2006, the Appellant filed another application dated 28th September, 2006 at the Registry of this Honourable court.
12. That contrary to the depositions in the paragraphs 19 and 20 of the Affidavit in support of the Appellant’s application dated 28th September, 2006 and filed on 29th September 2006, the circumstances that militated against hearing the Appellant’s Motion for stay filed at the lower Court were as stated in the paragraph 10(a) -(x) of this Counter Affidavit.
13. That I equally know of the fact that this application cannot be entered by this Honourable Court.
14. That the interest of Justice will be better served if this application is refused.
15. That I equally know of the fact that the applicant would not suffer more hardship by the refusal of this application.
16. That it is not true that this appeal has merit.
17. That the interest of Justice would be defeated by grant of this application as the Respondents would be greatly prejudiced.
1ST BETTER AND FURTHER AFFIDAVIT IN SUPPORT
“4. That on the 11th day of October, at about 2 p:m 1. G. Haruna, of Counsel (Principal Solicitor), Appellant/Applicant Counsel of I. G. Haruna & Co. informed me in Chambers of the following facts which I verily believe them to be true.
(a) That having gone through the Counter Affidavit of the Respondent dated 3rd day October, 2006 recognized the need to file this further and better Affidavit in response to issues raised in the said Counter Affidavit.
(b) That the facts contained in paragraphs 10 J, I, M, O, P, Q, R, S, T, W, and 12 of the said Counter Affidavit are false.
(c) That on the 5/6/06 when the Appellant’s/Applicants Motion for stay of execution came up for hearing at the trial Court, the Court was informed by the Respondent’s Counsel that the case file has already been taken to the Court of Appeal at the instance of the Appellant Counsel.
(d) That in view of sub-paragraph C above the Court declined hearing the Motion for stay on the ground that it cannot hear the motion without the case file and disagreed with the Respondent’s Counsel stating that the Appellant Counsel has no control over the Appeal Section of the trial Court as to direct the transfer of the case file to the Court of Appeal.
(e) That contrary to the assertion of the Respondent in paragraph 10 N, O, P, W, of their Counter Affidavit the case was not taken to the Court of Appeal on the insistence of the Appellant/Applicant’s Counsel nor did he interfere in any manner or with the due process of transferring of the case file from trial Court to the Court of Appeal.
(f) That on 3/7/06, the Appellant’s/Applicant’s Counsel informed the trial Court that the Appeal in this case has already been entered and therefore has no option than to withdraw his pending application to enable him file a similar application at the Court of Appeal and his Motion was accordingly struck out by the trial Court and hence the present Application.”
2ND FURTHER AND BETTER AFFIDAVIT IN SUPPORT
“4. That this affidavit is a further and better affidavit to our affidavit dated the 29th day of September 2006 and our further and better affidavit of 16th day of October 2006 earlier filed in support of our motion filed on the 29th day of September, 2006;
5. That in paragraph 4 of our affidavit dated the 29th day of September, 2006 in support, we referred to pages of the Record of Proceedings in which the judgment appealed against is contained.
6. That a copy of judgment is herewith attached and marked as “Exhibit A1”.
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 Applicant did not formulate any issue for determination in his written address.
On the other hand, the Learned Counsel for the Respondents formulated two issues for determination as follows:-
1. Whether the Applicant made out any case to warrant granting it a stay of execution of the Judgment of the trial Court.
2. Whether in the circumstances of this case, the Applicant is entitled to an order of Stay of Execution of the Judgment of the trial Court.
In determining this Application, I will rely on the issues as set out by Counsel for the Respondent in his written address.
The Learned Counsel or for the Applicant submitted that this Court has the power to order stay of execution and make any order it thinks fit pending final judgment in an Appeal, he relied on Sections 16 and 18 of the Court of Appeal Act, Cap 75 Laws of the Federation of Nigeria 1990.
He went further in his submission that a successful litigant should not be deprived of the fruit of his victory or success, but that the Court may in some appropriate special or exceptional circumstances exercise the judicial discretion in favour of an Applicant for stay of execution of Judgment pending the hearing and determination of an Appeal. He stated that the general rule or guiding principles regarding the exercise of the discretionary power of the Court to grant or refuse an application for stay are not exhaustive. He referred to the case of:-
– T. S. A. Industries vs. Kema Investment Ltd (2006) 10 WRN Page 66 at 82.
He also submitted that a stay will be granted by Court where the notice of appeal discloses substantial grounds of appeal to be argued on appeal.
He referred to the notice of appeal filed on behalf of the Applicant which he contended disclosed substantial grounds of appeal. He went further that where it is shown that the appeal involves points of law necessitating the parties and issues being in status quo until the legal issues are resolved, the Courts could exercise discretion to grant a stay. He referred to the case of:-
– Vincent Standard Trading Co. Ltd vs. Xtodens Trading Co. Nig. Ltd (1993) 5 NWLR Part 296 Page 675 at 688.
He referred to paragraphs 12, 13, 14, 15, 17, and 18 of the affidavit in support of the Application which he stated were not controverted, to show that the pending appeal raises point of law.
He referred to the case of:-
– Honda Place Ltd vs. Globe Motors Holding (2005) All FWLR Part 283 Page 12 – 13.
The Learned Counsel for the Applicant also submitted that the Courts in appropriate cases will grant an application for stay of execution on the basis of hardship. He referred to:-
– Achor vs. Aduka (2005) 27 WRN Page 178 at Page 203.
He also referred to paragraphs 21 (a) and (b) of the Applicant’s affidavit in support of the Application.
The Learned Counsel for the Respondent on the other hand opposed the Application. He referred to the counter affidavit, annexed to it are two Exhibits, Exhibit MS 1 which is the undertaking to refund dated 18th July 2006 and Exhibit MS 2 which is the Respondent’s Bank Statement of account from Zenith Bank Plc, Jos.
He submitted that the granting of a stay of execution is a matter of discretion for the Court which must be exercised both judicially and judiciously on sufficient materials.
He also submitted that in an application of this nature particularly in a case of money judgment, it is the duty of the Applicant to convince the Court that the Respondents are persons of straw. He referred to the following cases:-
-Sirpi Alusteel Construction Nigeria Ltd vs. SNIG Nig Ltd (2000) 2 NWLR Part 644 Page 229 at Page 238 Paragraph E – F:
-Josiah Cornelius Ltd vs. Ezenwa (2000) 8 NWLR Part 670 at Page 625 Paragraphs A-D.
It was also submitted on behalf of the Respondents that the onus is the Applicant for a stay to satisfy the Court that he is entitled to a stay. The Applicant must advance substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment. He referred to the case of:-
– Attorney General of Ondo State vs. Daramola (2000) 9 NWLR Part 673 at Page 613 at 628 Paragraphs B – C.
The general principle of law is that the litigant who succeeded at the trial should enjoy the fruits of his Judgment.
See the following cases:-
– Okafor vs. Naife (1987) NSCC Part 11 Page 1194:
– Nwabueze vs. Nwosu (1988) 4 NWLR Part 88 at Page 257.
The Supreme Court in Vaswani Trading Co. vs. Savalah & Co. (1992) 12 S.C. Page 77 eruditely stated the principle governing the grant or refusal of stay of execution as follows:-
“When the 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 a successful litigant of the fruits of the success unless under very special circumstances. (See in this connection the observation of Bowen L. J. in Annot Lyle (1886) 11 P. 114 at P.16… when it is stated that the circumstances or conditions for granting a stay should be special or strong we take if as involving a consideration of some collateral circumstances and perhaps in some cases inherent matter which may, unless the order for stay is granted, destroy the subject matters of the proceeding or foist upon the Court especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case and in particular even if the Appellant succeeds in the Court of Appeal, there could be no return to the status quo.”
Also in U.B.N. 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.
– Vaswani Trading Coy vs. Savalakh (1972) 12 S.C. Page 77;
– Wey vs. Wey (1975) 1 S.C. Page 1;
– Shoge vs. Musa (1975) 1 NWLR Page 133;
– Odufaye vs. Fatoye (1975) 1 NWLR Page 222.
(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 vs. University of 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 Enegbuna 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 he 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 right s 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 justice is 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.
In the instant case, a perusal of paragraphs 4, 5, 6, 7, 8, 9, and 10 of the affidavit in support of the application showed that the Res in the case is money. And where judgment has been entered for the payment of a sum of money and the judgment debtor seeks a stay of execution, the affidavit or affidavits relied upon by him in such a situation, apart from stating the relevant facts upon which to consider the principles for stay, must ensure that these facts are full and frank, including a complete and accurate account and description of all the applicant’s income, assets, interests and properties as well as his obligations and liabilities.
See- Ikeja Real Estate Ltd vs. National Bank of Nigeria Ltd. (2000) FWLR Part 9 at Page 1448 at Page 1453 Paragraph E ratio 6;
– Josiah Cornelius vs. Ezenwa (supra) Page 626 Paragraphs A to B;
– Chukwu vs. Onyia (1990) 2 NWLR Part 130 Page 80 at 84 – 85.
The applicant has not furnished the court with his statement of account as enjoined by law so as to assist the court in exercising its discretion either to grant or refuse the application.
The next thing which I will like to comment upon is Exhibit “A” attached to the application i.e. The notice and grounds of appeal.
The applicant attached Exhibit “A” to show that the appeal has great chance of success. A careful perusal of the said Exhibit “A” showed that it did not contain any recondite point of law. In Ajomale vs. Yaduat No. 2 (1991) 5 NWLR Part 191 Page 266, the Supreme Court considered the issue of reconditeness of a point of law in the consideration of an application for stay of execution and held that it is not every ground of appeal which has raised an important or difficult point of law that can suffice as a special circumstance on the ground of reconditeness. The reconditeness of a point of law with reference to an application for a stay of execution is not determined in the abstract by reference to the importance, or difficulty of the point raised in the ground of appeal per se. It is determined by reference to what the effect of a refusal to stay execution may be on the right of the applicant if successful in the appeal.
See- Ikeja Real Estate Ltd vs. National Bank of Nigeria Limited (Supra) Page 1453 Paragraphs A – B.
Also in T.S.A. Ind. Ltd vs. Kema Investment Limited (supra) 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 the instant case, the applicant in paragraph 10 of the affidavit in support of the application stated that the applicant is willing, ready and have the means to satisfy the Judgment debt. But in paragraph 8 of the same affidavit it was stated that if the Judgment sum is paid to the Respondents and the applicant succeeds on appeal, the Respondents will not be able to refund the Judgment sum to the Applicant.
In reaction to the averments above, the Respondents filed an undertaking dated 3rd October 2006 to refund both the Judgment sum and interest to the applicant in the unlikely event that the appeal succeeds. The Respondents also filed an 18 paragraphs counter affidavit in which it was stated that the Respondents have a capital base including fixed assets, worth more than N30 Billion in addition to having the means and capacity to refund the Judgment debt in the unlikely event that the appeal succeeds. In addition the Respondent also filed Exhibit MS 2 which is the statement of account of the Respondents at Zenith Bank to show the financial status of the Respondents.
In view of the foregoing, after a careful examination of the affidavit in support of the application, the two further and better affidavits, counter affidavit and the submissions of both counsel it is my view that the applicant has not made out any case to warrant granting its application for stay of execution of the Judgment of the trial court.
Consequently, this Application lacks merit and it is hereby dismissed.
The Respondents are entitled to costs in this Application which is assessed at (N15,000.00) Fifteen Thousand Naira against the Applicant.
Other Citations: (2008)LCN/2877(CA)
