REYNOLDS CONSTRUCTION COMPANY NIGERIA LIMITED v. BIS-AIANCO NIGERIA LIMITED & ANOR
(2013)LCN/5895(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2013
CA/AK/113M/2011
RATIO
“In Igwe v. Amuchenwa (2005) 10 NWLR (Pt.933) 420 at 426 paragraphs B-G the Court of Appeal held that an applicant in order to succeed in asking for better or favourable terms or conditions, must show in an affidavit very compelling exceptional circumstances why the terms or conditions must be varied and improved in his favour.” PER JOMBO-OFO, J.C.A.
“It is trite that poverty or impecuniousity is not a good ground for variation of the conditional order of court neither would it constitute an exceptional circumstance to warrant the variation. In Oparaugo v. Oparaugo (2008) 5 NWLR (Pt.1081) 574 at 601 paragraphs E-G the Court of Appeal made it clear that: “Poverty, impecuniousity, inconvenience or sympathy of emotions alone do not constitute special or exceptional circumstances as would warrant the grant of an order for stay of execution”PER JOMBO-OFO, J.C.A.
JUSTICE
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO justice of The Court of Appeal of Nigeria
Between
REYNOLDS CONSTRUCTION COMPANY NIGERIA LIMITEDAppellant(s)
AND
1. BIS-AIANCO NIGERIA LIMITED
2. BISI ODEJINMIRespondent(s)
JOMBO-OFO, J.C.A. (Delivering the Lead Ruling): In the motion before us dated 18th October, 2011 and filed 19th October, 2011, brought pursuant to order 7 Rules 1 and 10(1) and order 1g Rule 11(1) and (2) of the Court of Appeal Rules, 2011 the appellant/applicant (hereinafter referred to as applicant) has prayed as follows:
(i) Extension of time within which to perfect the conditions of Appeal in Suit No.HIF/96/2001: Bis-Alanco & Anor v. Reynolds Construction Company Nigeria Limited.
(ii) To deem as properly perfected the Conditions of Appeal already compiled with; and
(iii) Variation of the Order made by the Osun State High Court, Ile-Ife in Suit No.HIF/96/2001: Bis-Alanco & Anor. vs. Reynolds Construction Company Limited on 27th October, 2010 granting Conditional Stay of Execution of the judgment of the Osun State High Court sitting at Ile-Ife delivered on 5th day of July, 2010 pending the final determination of the appeal against the said judgment.
The grounds of the application are that:
(i) The time within which to perfect the conditions of appeal as made available by the Registrar of the Appeal section in the lower court has since expired.
(ii) The appellant/applicant perfected the conditions of appeal on 13th April, 2011, out of time
(iii) The applicant is no longer conducting any substantial business as the Federal Government of Nigeria has since not awarded road construction contracts to the applicant.
(iv) To be able to pay the whole judgment debt, the applicant would have to sell its construction equipment and machinery at great loss
In support of the application is an affidavit of 26 paragraphs deposed to by one Sola Sullyman, Esq., a Legal Practitioner of Plot 14 Adelaja Street, Mokola, Ibadan. Attached to the affidavit are 5 exhibits marked A, B, C, D and E respectively. Exhibit A is a copy of the judgment in Suit No: HIF/96/2001 delivered on 6th July, 2010 at Osun State High Court sitting at Ile-Ife. Exhibit B is a copy of the Notice of Appeal against the judgment dated 7th July, 2010 and filed 9th July ,2010. Exhibit C is the receipt issued to that effect. Exhibit D is the copy of receipt issued for the sum of N300 being fees paid for filing of Bond to Prosecute the appeal on suit no: HIF/96/2001, while Exhibit E is a copy of the receipt issued for money paid for Compilation of Record of Appeal on suit nos: HIF/96/2001. The applicant’s written address dated 12th November, 2012 was fifed 18th December, 2012 and same was deemed as properly filed on 14th January, 2013 when the motion was heard. With the adoption of their written address, the learned applicant’s counsel urged the court to grant their application.
On the part of the respondents, in opposing the motion they filed a paragraphed counter affidavit deposed to by one Ibukun Abimbola Oduntan, a Litigation Clerk of No. 130 Obafemi Awolowo Way, Liberty Road junction, Oke-Ado, Ibadan. Attached to the counter affidavit as Exhibit A is a copy of the Ruling of the lower court delivered 27th of October, 2010. The respondents’ counsel also filed a written address dated 8th January, 2013 in support of their counter affidavit. Learned counsel adopted and relied on both processes in opposing the motion adding that no compelling circumstances have been proffered to support the application. He therefore urged the court to dismiss the application for being frivolous and unmeritorious, except the 1st and 2nd legs which they are not opposing.
While making his oral submission at the hearing on 14th January, 2013, the learned applicant’s counsel by way of reply on points of law said that the counter affidavit does not comply with the provisions of section 115 (a) of the Evidence Act, 2011 and as such it should be struck out. He referred to paragraph 4 of the said counter affidavit and cited the authorities of Abiodun vs. C. J. Kwara State (2007) 18 NWLR (Pt.1065) 109 at 145 D-F; and ACB. vs. Nnamani (1991) 4 NWLR (Pt.186) 86,498 paras A-B.
The brief antecedent that gave rise to the instant motion is that on 6th July, 2010, the Osun State High Court sitting at Ile-Ife delivered its judgment (Exhibit A) in suit nos: HIF/96/2001. Being dissatisfied with the said judgment the defendant/applicant therein who is applicant herein filed a Notice of Appeal (Exhibit B). By way of a Motion on Notice filed before the lower court, the defendant/applicant who sought for an order of stay of execution of the judgment, were granted the following orders:
(a) That the applicant shall pay to the Chief Registrar of this Court the total Judgment sum of N7,550,000.00 (Seven Million, Five Hundred and Fifty Thousand Naira) only costs inclusive, and the Chief Registrar shall in turn deposit same into an interest yielding account in a reputable Commercial Bank pending the determination of the appeal filed by the applicant.
(b)The applicant is given uptill Monday, 31st January, 2011 within which to pay the said Judgment sum to the Chief Registrar.
See Exhibit F also attached to the applicant’s affidavit in support.
Premised on the foregoing facts, the learned applicant’s counsel formulated the following 2 issues for determination by this court:
1. Whether based on the available materials and the state of the law, the applicant is entitled to the grant of an order extending time within which to perfect the conditions of appeal in Suit No: HIF/96/2001: Bis-Alanco & Anor v. Reynolds Construction Company Nigeria Limited.
2. Whether based on the available materials, the applicant is entitled to the grant of an order varying the order made by the Osun State High Court, Ile-Ife in Suit No:HlF/96/2011: Bis-Alanco & Anor. v. Reynolds Construction Company Nigeria Limited on 27th October, 2010 granting conditional stay of execution of the judgment of the Osun State High Court sitting at Ile-Ife delivered on 6th July, 2010 pending the final determination of the appeal against the said judgment.
On the side of the respondents, learned counsel on their behalf formulated a sole issue which is similar in all material respect to issue (2) above. We shall therefore determine the application based on the 2 issues aforestated.
Before dealing with the issues as raised above it shall be pertinent to first of all address the oral submission of the learned applicant’s counsel to the effect that the respondents’ counter affidavit particularly paragraph 4 thereof does not comply with the provisions of section 115 (4) of the Evidence Act, 2011. The section reads:
115 (1) Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(4) When such belief is derived from information received from another ,person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant and the time, place and circumstance of the information.
I have read through the counter affidavit as filed particularly the said paragraph 4 which I feel obliged to reproduce. It reads:
4.That I have read through the Appellant/Applicant’s application dated 18th day of October, 2011 and I was informed by the 2nd Respondent and I verily believe him to respond to the said application as follows:-
A thorough look at the counter affidavit shows that the deponent by virtue of his being a Litigation Clerk in the Chambers of N. O. O. Oke (SAN) & Co. a firm of Solicitors for the respondents in this case, he the said deponent became quite familiar with the facts he deposed to. Aside from the facts he has personal knowledge of, he averred that he also received some other pieces of information about the case and which information he verily believed from the 2nd respondent.
On the face of the motion paper it is apparent that the name of the 2nd respondent/informant is Bisi Odejinmi. The circumstance of the said 2nd respondent being a client to the Chambers of N. O. O. Oke (SAN) & Co. caused him to release those pieces of information to the deponent. I am therefore not in doubt that reasonable particulars of the 2nd respondent/informant were disclosed in the counter affidavit thus substantially complying with the provisions of section 115 (a) supra. To this extent the oral submission of the applicant that the counter affidavit be struck out for non compliance is of no moment and so is discountenanced.
Now on the issues for determination, the 1st and 2nd legs of the applicant’s prayers are dependent on issue (1) for their determination. However the learned counsel for the respondents in their counter affidavit as well as the accompanying written address, have shown that they are not contesting the applicant’s prayers (1) and (2). In paragraph 9 of -the affidavit in support, the applicant admitted therein that it was out of time in perfecting the conditions of appeal imposed upon it by the Registrar of the lower court. Prayers (1) and (2) are therefore granted as prayed.
Regarding issue (2), it is the contention of the applicants in seeking a variation of the condition imposed upon it by the lower court that it no longer carries out any substantial business but is highly expectant of some reasonable prospective contracts. While referring the court to the case of First Bank of Nigeria Ltd. v. Doyin Investment Nigeria Ltd. (1999) 1 NWLR (Pt.99) 634; the applicant submitted that the Court of Appeal has the jurisdiction and discretion to vary an earlier order of a trial court for stay of execution. It urged us in the circumstances to grant the prayer.
In opposing the prayer, the learned counsel for the respondents submitted and which submission we believe, that the applicant failed to place the necessary and convincing material facts before the court why the condition of the lower court which is that the judgment sum be paid into an interest yielding account with a reputable bank should be varied. In Igwe v. Amuchenwa (2005) 10 NWLR (Pt.933) 420 at 426 paragraphs B-G the Court of Appeal held that an applicant in order to succeed in asking for better or favourable terms or conditions, must show in an affidavit very compelling exceptional circumstances why the terms or conditions must be varied and improved in his favour.
The applicant herein in paragraph 17 of its affidavit in support averred that it no longer conducts any substantial business as the Federal Government of Nigeria has since not awarded road construction contracts to it. Applicant went on to contend as per paragraph 4.02 of its written address that it is highly expectant of some reasonable prospective contracts. It is trite that poverty or impecuniousity is not a good ground for variation of the conditional order of court neither would it constitute an exceptional circumstance to warrant the variation. In Oparaugo v. Oparaugo (2008) 5 NWLR (Pt.1081) 574 at 601 paragraphs E-G the Court of Appeal made it clear that:
“Poverty, impecuniousity, inconvenience or sympathy of emotions alone do not constitute special or exceptional circumstances as would warrant the grant of an order for stay of execution”.What this court is trying to say in the circumstance is that it is not enough for the applicant to claim financial paucity and or high expectation of brighter days. There is no room for speculation or sentiment in law. Rather for the applicant to succeed in its claim of impecuniousity, he is expected to have gone a step further by furnishing this court with its statement of account and other such material documents that will help the court determine its financial status. Without being seen as over flogging this issue, this same court in Abdulkadiri v. Ali (1999) 1 NWLR (Pt. 588) 613 at 619-620 paragraphs G-A held as follows:
A mere statement that an applicant for stay of execution is poor … without more, will not amount to special circumstance. The applicant must go further. He has to supply the court with all the facts about his income and the source of his income….The applicant must establish that he has indeed no resources.
Just as the sweeping statement of impecuniousity or lack of employment would not hold water in demanding for a stay of execution of the order of a court, so also would it not stand in seeking a variation of the court’s order. While resolving issue (2) in favour of the respondents, we re-affirm the order of the lower court as contained in Exhibit F attached to the applicant’s affidavit in support. The applicant has not placed the requisite materials before us to satisfy us that he deserves the order of variation as sought by it.
It is therefore refused. In conclusion since the 1st and 2nd prayers are not in contention, they are granted as prayed. Prayer 3 is refused and accordingly dismissed.
Cost assessed and fixed at N20,000 is awarded against the appellant/applicant in favour of the respondents.
KEKERE-EKUN, J.C.A.: I have had the benefit of reading before in draft the ruling of my learned brother, Jombo-Ofo, JCA just delivered. I agree entirely with the reasoning and conclusion that the applicant’s prayer for a variation of the order of conditional stay of execution granted by the lower court on 6/7/2010 is completely devoid of merit and ought to be refused.
In an application of this nature the applicant must show special or exceptional circumstances to warrant the exercise of the court’s discretion in its favour. A bare averment that the applicant is impecunious will not suffice. See: Abdulkadiri vs. Ali (1999) 1 NWLR (588) 613 @ 619-620 G – A; Martins vs. Nicannar Food Co. Ltd. & Anr, (1998) 2 NWLR (88) 257.
In the instant case it is noteworthy that the applicant’s counsel at the hearing of the application for stay of execution before the lower court did not object to an order of conditional stay being granted but merely pleaded for time. The learned trial Judge acceded to this request by giving it three months from the date of the ruling within which to comply. See the ruling on the application for stay of execution attached to the respondents’ counter affidavit and marked Exhibit A. The applicant was to have complied with the order on or before 31st January 2011. The present application was not filed until 19/10/2011.
Thus, not only was the applicant tardy in bringing the application, the affidavit in support is completely bereft of any materials upon which this court could base the exercise of its discretion in its favour.
For these and the more detailed reasons contained in the lead ruling, I also refuse prayer 3 of the application. I abide by all the other orders in the lead ruling including the order for costs.
GUMEL, J.C.A.: I have had the privilege of reading in draft the ruling just delivered by my learned brother, Jombo-Ofo, JGA. I fully agree with all the reasonings and conclusions. I also would refuse prayer 3 for variation of the order of conditional stay of execution made by the lower court. I abide by all the consequential orders in the ruling of my learned including the order for costs.
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Appearances
Adebayo Awolusi Esq. for the Appellant/applicant.For Appellant
AND
N. O. O. OKE (SAN) appearing with A. O. Oladele Esq. for the respondents.
Respondents are present.For Respondent
