IMOH-ITA v. ANIMASHAUN (2022)

IMOH-ITA v. ANIMASHAUN

(2022)LCN/16907(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, December 14, 2022

CA/L/600M/2010(R)

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

MR. AKWAISA LEONARD IMOH-ITA (Substituted For Chief Peter Alfred Imoh-Ita) APPELANT(S)

And

MR. NURUDEEN OLALEKAN ANIMASHAUN RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL OPERATES AS A STAY OF EXECUTION

THE POSITION OF LAW ON STAY OF EXECUTION

Stay of execution is an equitable remedy that must take into consideration the competing rights of the parties. The relevant considerations are the right of a successful party to harvest the fruits of his success in the suit on the one hand, and the necessity not to impede the Appellant’s right to appeal on the other hand; as well as preserving the res so that if the appeal is successful the proceedings are not rendered futile at the end of the day. A stay of execution is only granted where the Court’s discretion exercised judicially and judiciously has been made in favour of the Applicant on the basis of established principles. See MOMAH v VAB PETROLEUM INC. (2000) 2 SC 142 at 163 – 164 and LIJADU v LIJADU [1991] 1 NWLR (PT. 169) 627 at 644. In an application for stay of execution pending appeal, the following considerations have been distilled from a long line of judicial authorities as guiding principles:
(a) The Courts have an unimpeded discretion to grant or refuse a stay. This discretion, as in all other instances of judicial discretion, must be exercised both judicially and judiciously;
(b) The competing rights of the parties to justice must be taken into consideration. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the Respondent’s equal right to justice is a discretion that has not been judicially exercised;
(c) An unsuccessful litigant applying for stay must show “special” or “exceptional” circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay. What will constitute these “special” or “exceptional” circumstances will no doubt vary from case to case. By and large, such circumstances will involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the Court especially the appeal Court 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 the constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the Appellant succeeds on appeal, there could be no return to the status quo;
(d) The onus is on the applicant to satisfy the Court that a refusal of stay would be unjust and inequitable in the peculiar circumstances of his case;
(e) The Courts will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal;
(f) The chances of the appeal are important. If the chances of the appeal are virtually nil, then a stay may be refused;
(g) The nature of the subject matter in dispute, whether maintaining the status quo ante bellum until a final determination of the appeal in the case will meet the justice of the case;
(h) Whether if the appeal succeeds, the applicant will not be able to reap the benefits of the judgment on appeal;
(i) Where the judgment is in respect of money and costs, whether there is remarkable probability of recovering these back from the Respondent if the appeal succeeds; and
(j) Poverty simpliciter is not a special ground for granting of stay of execution except where the effect will be to deprive the appellant of the means of prosecuting his appeal.
See generally: VINCENT STANDARD TRADING CO. LIMITED v XTODEUS TRADING CO. NIG. LIMITED & ANOR [1993] 5 NWLR (PT. 296) 675 at 686 – 688, OKAFOR v NNAIFE [1987] 4 NWLR (PT. 64) 129 at 136 – 137, VASWANI TRADING CO v SAVALAKH & CO (supra) and MARTINS v NICANNAR FOOD CO. LTD [1988] 2 NWLR (PT. 74) 55 at 83 amongst a host of other cases. PER AFFEN, J.C.A.

WHETHER OR NOT LEAVE OF COURT MUST BE OBTAINED FOR THERE TO BE A VALID APPEAL

There is no gainsaying the premise of stay is the existence of a valid pending appeal. There is no valid pending appeal where leave to appeal is required but not obtained. An appeal to the Supreme Court on grounds other than law is incompetent if leave of Court is not obtained. See S. 233(2) and (3) of the 1999 Constitution and the cases of NWADIKE v IBEKWE [1987] 4 NWLR (PT 67) 718 and OBATOYINBO v OSHATOBA [1996] 5 NWLR (PT 450) 531. But it would seem that there is no omnibus requirement that leave to appeal must be obtained whenever an appeal involves concurrent findings of fact. As the Supreme Court intoned in G. N. NWAOLISA v NWABUFOR (2011) LPELR-2115(SC): “There is no law that the right of appeal as of right does not extend to the concurrent findings of fact of the Court of Appeal or the High Court”. It is the grounds of appeal that will reveal whether an appeal involves questions of law alone (for which no leave is required), or of facts or admixture of law and facts (for which leave of Court is required). This being so, beyond merely harping on the existence of concurrent findings of fact by the High Court and this Court, the Respondent ought to examine the grounds of appeal and their particulars to ascertain whether or not the Applicant required leave to pursue his appeal. I will therefore discountenance the Respondent’s contention in this regard. PER AFFEN, J.C.A.

FACTOR TO BE CONSIDERED TO SATISFY THE REQUIREMENT OF SPECIAL OR EXCEPTIONAL CIRCUMSTANCES IN AN APPLICATION FOR STAY OF EXECUTION

Now, the exceptional or special circumstance relied upon by the Appellant/Applicant is that the Notice of Appeal contains grounds of appeal that raise substantial and recondite issues of law which are valid, arguable, compelling and have a good chance of success on appeal. The law, as I have always understood it, is that the mere raising of a substantial point of law is not conclusive of the matter nor does it lead inexorably to the grant of stay of execution. In order to satisfy the requirement of special or exceptional circumstance in the context of an application for stay of execution, what the law requires is not merely the raising of a substantial point of law per se, but a substantial issue of law to be decided on appeal in an area in which the law is to some extent recondite, such that either side may have a decision in his favour. See BALOGUN v BALOGUN (1969) 1 All NLR 349 at 351 (per Coker, JSC). A point of law is said to be recondite if it is novel, obscure, abstruse or little known. A notorious point of law which has been overburdened with previous decisions, even if jurisdictional in nature, cannot be said to be recondite. See LIJADU v LIJADU [1991] 1 NWLR (PT. 169) 627 at 646 –per Niki Tobi, JCA as he then was). What is more, even where a serious and recondite point of law is raised, it is not in all cases that an applicant is ipso facto entitled to a stay of execution. Each case must be viewed from its own surrounding circumstances. See AGBAJE v ADELAKAN [1990] 7 NWLR (PT. 164) 595 at 611. PER AFFEN, J.C.A.

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgement): The Appellant/Applicant herein has beseeched this Court with a motion of notice filed on 7/4/22 praying for “An order for stay of execution of the judgment of the Court of Appeal, Lagos in [Appeal No.] CA/L/600M/2010 which was delivered on the 19th day of January 2022 pending the determination of the appeal lodged by the Appellant/Applicant” and “Such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances”.
The grounds upon which the application is predicated are:
“1. On the 19th day of January, 2022, the Court of Appeal, Lagos in CA/L/600M/2010 dismissed the appeal of the Appellant/Applicant.
2. The Appellant/Applicant being dissatisfied with the judgment lodged an appeal against the said judgment by a Notice of Appeal dated the 29th day of March, 2022.
3. If this application is not granted, the Respondent will proceed to levy execution of the said judgment which is being challenged on appeal and thereby might render the decision of the Supreme Court nugatory if the appeal succeeds.
4. The damage to the Appellant/Applicant will be irreversible if the Respondent levies execution of the judgment since the res of the appeal has to do with a declaration of title to landed property and possession thereof.
5. The Notice of Appeal contains very substantial, cogent and arguable grounds of appeal on recondite points of law which have a good chance of success.
6. It is in the interest of justice to grant his application and the Respondent will not be prejudiced thereby.”

The motion is supported by a 10-paragraphed affidavit deposed by Gloria Abugo, Esq. (who is the Principal Counsel in the law firm of Messrs. Gloria Ukpe & Co, Solicitors to the Appellant/Applicant). Exhibits A, B and C annexed to the supporting affidavit are certified copies of the judgment of this Court (coram: Ogbuinya, Sirajo and Bankjoko, JJCA) delivered on 19/1/22, Notice of Appeal filed on 29/3/22 and Revenue Collector’s Receipt evidencing payment of filing fee. It is contended in the written address that the application is brought in furtherance of the Appellant/Applicant’s constitutional right of appeal under S. 233(2) a) of the Constitution of the Federal Republic of Nigeria 1999; and that whilst the pendency of an appeal does not operate as stay of execution, this Court is invested with discretion to grant stay either unconditional or upon the performance of such conditions as may be imposed in accordance with the Rules of Court, which discretion must be exercised based upon settled principles. Reference is made to S. 17 of the Court of Appeal Act, 1976 and the cases of MAIN VENTURES LTD v PETROPLAST IND. LTD [2000) 4 NWLR (PT. 651) 151 and OYELAMI v MILITARY ADMINISTRATOR OF OSUN STATE [1999] 8 NWLR (PT. 613) 45 at 57 (CA) on the conditions governing the grant [or refusal] of stay of execution. The Appellant/Applicant maintained that exceptional and special circumstances justifying the grant of this application are disclosed; that the Notice of Appeal contain grounds of appeal that raise substantial and recondite issues of law which are valid, arguable, compelling and have a good chance of success on appeal; that the res has to do with declaration of title and possession of landed property and the tenants currently in occupation would be rendered homeless if the Respondent goes ahead to levy execution of the judgment; that the damage to the Appellant/Applicant will be irreversible in the circumstance; that the balance of convenience tilts in favour of the Appellant/Applicant and the decision of the Supreme Court will be rendered nugatory if stay is not granted and the Respondent proceeds to levy execution; and that it will be in the interest of justice to grant stay.

In opposition to the motion for stay, the Respondent caused to be filed on its behalf a 12-paragraphed counter-affidavit deposed on 27/4/22 by Shola Odeyinka (a Litigation Officer in Professor A. B. Kasunmu’s Chambers). It is deposed in the counter affidavit that the judgment of the High Court of Lagos State (coram: Oke-Lawal, J.) which adjudged the Respondent as the owner of the property (and affirmed by this Court on 19/1/2022) was delivered since 14/1/2010; that the property was sold to the Respondent by private treaty owing to the Appellant’s inability to redeem a legal mortgage dated 9/7/82 between him and the defunct Mercantile Bank of Nigeria Plc; that the Respondent has not been able to reap the fruits of the judgment since the sale whilst the Applicant has remained in possession and continued to benefit by collecting rents from tenants on the property; that having waited patiently for over 12 years to enjoy the fruits of the judgment, the Respondent will be greatly prejudiced by the grant of stay of execution; that the Applicant is exploiting the heavy workload of the Supreme Court (which will or may not allow a further appeal to be heard in that Court for the next 8 years) to deny the Respondent from reaping the fruits of the judgment; and that the grounds of appeal filed by the Applicant are frivolous and do not raise any recondite points of law.

It is contended on behalf of the Respondent that the authorities on grant or refusal stay must be read in the light of the circumstances of the individual case, and the exercise of discretion entails weighing of balance of convenience and the competing rights of the judgment creditor and judgment debtor, as well as whether exceptional circumstances are disclosed and the prospects of success on appeal, citing MARTINS v NICANNAR FOOD CO. LTD [1988] 2 NWLR (PT 74) 75 at 82 (SC); and that the grounds of appeal do not contain any substantial or recondite issues of law to be resolved on appeal with prospects of success which render it inexpedient to enforce the judgment, placing reliance on BALOGUN v BALOGUN (1969) 1 ALL NLR 349, MARTINS v NICANNAR FOOD CO. LTD (supra) and LIJADU v LIJADU [1991] 1 NWLR (PT 169) 627 at 645-646. It is further contended that the Applicant has been in possession of the mortgaged property and deriving benefit therefrom by collecting rent since 2010 when judgment was entered against him whilst the Respondent has waited patiently for over 12 years to reap the fruits of the judgment, so there is nothing stopping the Respondent from collecting rents from the said tenant, insisting that the allegation that tenants would be rendered homeless is unfounded. The cases of ODUJURIN v WEMA BANK [2010] 1 MJSC (PT II) 39 at 40 and TSA INDUSTRIES v KEMA INVESTMENT LTD (2006) 3 MJSC 1 at 3 are called in aid.

The Respondent equally relied on OLUNLOYO v ADENIRAN [2001] 8 MJSC 120 in contending that the mere filing of an appeal does not constitute exceptional circumstance that warrants the grant of stay; that being an appeal against concurrent findings of the High Court and the Court of Appeal, the Supreme Court Rules enjoin the Appellant/Applicant to seek leave to appeal, which has not been done; and in considering balance of convenience which entails striking a balance between the equities of the parties as held in relevant decided cases including UZO v NNALIMO [2000] 11 NWLR (PT 678) 243, the Applicant has not been able to show that he will suffer greater hardship if his application for stay is refused; and that the subject matter (being land) is not susceptible to disintegration or destruction and the Applicant (who is by law a trespasser) cannot continue to hang on to a property already adjudged to not to belong to him since 2010, citing AJOMALE v YADUAT [1991] ALL NLR 197. This Court was urged to exercise its discretion in favour of the Respondent by refusing stay of execution pending appeal.

Now, a Court of record whose judgments are subject to appeal has inherent power to stay the execution of any judgment against which an appeal has been brought, in order to render the right of appeal more effective. See DADA v OGUNREMI [1962] 2 SCNLR 417. This power is expressly provided for in S. 17 of the Court of Appeal Act.

An appeal of itself does not operate as a stay of execution (or proceedings), and an application for stay of execution is not granted as a matter of course or routine. Rather, it is a matter of law and facts, and a very hard one in their combined intent. See EZE v OKOLONJI [1997] 7 NWLR (PT. 573) 575 at 579 –per Niki Tobi, JCA (as he then was). Not being a mechanical relief that slavishly follows the filing of an appeal, stay of execution will be granted only where the Applicant discloses a special or exceptional circumstance, which is a peculiar or unique circumstance additional to the ordinary state of affairs. See SPDC (NIG) LTD v AMADI & ORS (2011) LPELR-3204(SC), T.S.A. IND. LTD v KEMA INVESTMENTS LTD (2006) LPELR-3129(SC) and FATOYINBO & ORS v OSADEYI & ANOR (2002) LPELR-1252(SC) (supra). This is so because a successful party in litigation is entitled to reap the fruits of his victory, and the Courts will not make a practice of depriving him of the fruits of the judgment in his favour. See VASWANI v SAVALAKH TRADING CO LTD (1972) LPELR-3460(SC) and SHODEINDE v REGISTERED TRUSTEES OF AHMADIYA MOVEMENT IN ISLAM (1980) 1-2 SC 163.

Stay of execution is an equitable remedy that must take into consideration the competing rights of the parties. The relevant considerations are the right of a successful party to harvest the fruits of his success in the suit on the one hand, and the necessity not to impede the Appellant’s right to appeal on the other hand; as well as preserving the res so that if the appeal is successful the proceedings are not rendered futile at the end of the day. A stay of execution is only granted where the Court’s discretion exercised judicially and judiciously has been made in favour of the Applicant on the basis of established principles. See MOMAH v VAB PETROLEUM INC. (2000) 2 SC 142 at 163 – 164 and LIJADU v LIJADU [1991] 1 NWLR (PT. 169) 627 at 644. In an application for stay of execution pending appeal, the following considerations have been distilled from a long line of judicial authorities as guiding principles:
(a) The Courts have an unimpeded discretion to grant or refuse a stay. This discretion, as in all other instances of judicial discretion, must be exercised both judicially and judiciously;
(b) The competing rights of the parties to justice must be taken into consideration. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the Respondent’s equal right to justice is a discretion that has not been judicially exercised;
(c) An unsuccessful litigant applying for stay must show “special” or “exceptional” circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay. What will constitute these “special” or “exceptional” circumstances will no doubt vary from case to case. By and large, such circumstances will involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the Court especially the appeal Court 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 the constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the Appellant succeeds on appeal, there could be no return to the status quo;
(d) The onus is on the applicant to satisfy the Court that a refusal of stay would be unjust and inequitable in the peculiar circumstances of his case;
(e) The Courts will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal;
(f) The chances of the appeal are important. If the chances of the appeal are virtually nil, then a stay may be refused;
(g) The nature of the subject matter in dispute, whether maintaining the status quo ante bellum until a final determination of the appeal in the case will meet the justice of the case;
(h) Whether if the appeal succeeds, the applicant will not be able to reap the benefits of the judgment on appeal;
(i) Where the judgment is in respect of money and costs, whether there is remarkable probability of recovering these back from the Respondent if the appeal succeeds; and
(j) Poverty simpliciter is not a special ground for granting of stay of execution except where the effect will be to deprive the appellant of the means of prosecuting his appeal.
See generally: VINCENT STANDARD TRADING CO. LIMITED v XTODEUS TRADING CO. NIG. LIMITED & ANOR [1993] 5 NWLR (PT. 296) 675 at 686 – 688, OKAFOR v NNAIFE [1987] 4 NWLR (PT. 64) 129 at 136 – 137, VASWANI TRADING CO v SAVALAKH & CO (supra) and MARTINS v NICANNAR FOOD CO. LTD [1988] 2 NWLR (PT. 74) 55 at 83 amongst a host of other cases.

I have given a careful and insightful consideration to the supporting and counter affidavits filed by and on behalf of the parties. It is common ground that the burden lies on the Applicant to proffer valid reason(s) why the judgment of this Court (which affirmed the judgment of Oke-Lawal, J.) should be stayed by disclosing in the supporting affidavit special or exceptional circumstances eloquently disclosing that the balance of justice tilts in his favour. We shall find out presently whether he has discharged this burden, but not without first grappling with the Respondent’s contention that the Appellant/Applicant failed or neglected to obtain leave to appeal against the concurrent findings of the High Court and the Court of Appeal as he is enjoined to do under the Supreme Court Rules, thus suggesting that there is no valid pending appeal upon which stay of execution can be predicated.
There is no gainsaying the premise of stay is the existence of a valid pending appeal. There is no valid pending appeal where leave to appeal is required but not obtained. An appeal to the Supreme Court on grounds other than law is incompetent if leave of Court is not obtained. See S. 233(2) and (3) of the 1999 Constitution and the cases of NWADIKE v IBEKWE [1987] 4 NWLR (PT 67) 718 and OBATOYINBO v OSHATOBA [1996] 5 NWLR (PT 450) 531. But it would seem that there is no omnibus requirement that leave to appeal must be obtained whenever an appeal involves concurrent findings of fact. As the Supreme Court intoned in G. N. NWAOLISA v NWABUFOR (2011) LPELR-2115(SC): “There is no law that the right of appeal as of right does not extend to the concurrent findings of fact of the Court of Appeal or the High Court”. It is the grounds of appeal that will reveal whether an appeal involves questions of law alone (for which no leave is required), or of facts or admixture of law and facts (for which leave of Court is required). This being so, beyond merely harping on the existence of concurrent findings of fact by the High Court and this Court, the Respondent ought to examine the grounds of appeal and their particulars to ascertain whether or not the Applicant required leave to pursue his appeal. I will therefore discountenance the Respondent’s contention in this regard.

Now, the exceptional or special circumstance relied upon by the Appellant/Applicant is that the Notice of Appeal contains grounds of appeal that raise substantial and recondite issues of law which are valid, arguable, compelling and have a good chance of success on appeal. The law, as I have always understood it, is that the mere raising of a substantial point of law is not conclusive of the matter nor does it lead inexorably to the grant of stay of execution. In order to satisfy the requirement of special or exceptional circumstance in the context of an application for stay of execution, what the law requires is not merely the raising of a substantial point of law per se, but a substantial issue of law to be decided on appeal in an area in which the law is to some extent recondite, such that either side may have a decision in his favour. See BALOGUN v BALOGUN (1969) 1 All NLR 349 at 351 (per Coker, JSC). A point of law is said to be recondite if it is novel, obscure, abstruse or little known. A notorious point of law which has been overburdened with previous decisions, even if jurisdictional in nature, cannot be said to be recondite. See LIJADU v LIJADU [1991] 1 NWLR (PT. 169) 627 at 646 –per Niki Tobi, JCA as he then was). What is more, even where a serious and recondite point of law is raised, it is not in all cases that an applicant is ipso facto entitled to a stay of execution. Each case must be viewed from its own surrounding circumstances. See AGBAJE v ADELAKAN [1990] 7 NWLR (PT. 164) 595 at 611.

Against the backdrop of the foregoing, I have given a careful and insightful consideration to the grounds of appeal contained in the Notice of Appeal annexed to the supporting affidavit as Exhibit B. Ground One alleges that “the Court of Appeal erred in law when it held that the bank’s power of sale had arisen and had become exercisable as at the date of the purported sale of the Appellant’s property to the Respondent”, whilst Ground Two is to the effect that “the Court of Appeal erred in law when it held that the sale of the property to the Respondent was regular and valid as regards the bank’s publication of intention to sell the property that was placed in a regional newspaper and the sale of the property by private treaty”. The grouse in Ground 3 is that this Court erred in law in holding that the Respondent is a bona fide purchaser for value without notice, whilst Ground Four alleges that the Court erred in law for adjudging the Respondent entitled to a declaration of title to, and possession of, the property lying and situate at No. 38 (now No. 42) Oladeinde Street, Aguda, Surulere, Lagos State.

It does not seem to me that any of the above grounds of appeal disclose any substantial points of law in an area of the law that can be said to be recondite to warrant the grant of stay. Quite the contrary, all four grounds of appeal revolve around alleged irregularities in the exercise of a mortgagee’s power of sale, which has been held not to have any negative impact on the title of the purchaser. As can be gleaned from the judgment of this Court (annexed to the supporting affidavit as Exhibit A), the Conveyancing and Law of Property Act 1881 was expressly excluded under Clause 6 of the Deed of Legal Mortgage executed between the Bank and the Applicant, which states that the Bank can exercise the statutory power of sale at any time after execution of the Deed provided that payment of the moneys secured has been demanded and the mortgagor (Applicant) has failed to pay within one month of the demand. There was default in making payment which fell due in January 1984, whereupon the Bank demanded payment on 28/9/84, 20/11/85 and 13/5/86 (Exhibits C, O and E) to no avail before the property was eventually sold to the Respondent.

The law is well settled that a mortgagee is entitled to exercise his powers over the mortgaged property if mortgage debt is not paid at any time fixed for payment upon demand. See NIGERIAN HOUSING DEVT. SOCIETY LTD v MUMUNI [1977] 2 SC 57, UBN v FAJEBE [1998] 6 NWLR (PT 554) 380, HARUNA v SGBN LTD [1995] 2 NWLR (PT 377) 326 and BANK OF THE NORTH v AKINTOYE [1999] 12 NWLR (PT 631) 392. Once a mortgagee’s power of sale arises and has been exercised, the title of a subsequent purchaser is unaffected by the improper or irregular exercise of the power. Insofar as the sale is not shown to be fraudulent or made at a gross undervalue (so as to suggest fraud), it is regarded as valid and the mortgagor’s remedy arising out of improper or irregular exercise of the mortgagee’s power of sale lies in an action for damages rather than in setting aside the sale whereby a third party has acquired interest or title in good faith. This is a well-worn, if not over-flogged, terrain for which authorities are legion. See ERIKITIOLA v ALLI (1941) 16 NLR 56, SANUSI v DANIEL (1956) SCNLR 288, THE REGISTERED TRUSTEES OF THE NIGERIAN UNION OF TEACHERS v SANKEY (1951) 20 NLR 23, RAJI v WILLIAMS (1941) 7 WACA 147, PINNOCK v G. B. OLLIVANT & CO. LTD (1934) 2 WACA 164, IBIYEYE v FOJULE [2006] 3 NWLR (PT 968) 640, ACB v IHEKWOABA [2003] 16 NWLR (PT 846) 249, MAJEKODUNMI v CO-OPERATIVE BANK LTD [1997] 10 NWLR (PT. 524) 198 at 212, FBN v BENLION (NIG) LTD & ORS (2021) LPELR-54165(CA) amongst a host of other cases.

It cannot escape notice that whereas “the only obligation incumbent on a mortgagee selling under and in pursuance of a power of sale in a mortgage deed is that he should act in good faith” [see EKA-ETEH v NIGERIAN HOUSING DEVT. SOCIETY LTD & ANOR [1973] NSCC 373 at 380 – 381, WEST AFRICAN BREWERIES LTD v SAVANNAH VENTURES LTD (2002) LPELR-3475(SC) and BABATUNDE & ANOR v BANK OF THE NORTH LTD & ORS (2011) LPELR-8249(SC)], the Appellant/Applicant deemed it necessary to proceed against the Respondent to whom the mortgaged property was sold rather than the mortgagee (Mercantile Bank of Nigeria) that exercised the power of sale. The implication therefore is that the prospects of success of the further appeal to the Supreme Court may not be as bright as it is being projected by the Applicant.

It equally does not seem to me that a consideration of the competing equities of the parties tilts the balance of convenience in favour of the Appellant/Applicant whose burden it is to satisfy the Court that a refusal of a stay would be unjust and inequitable in the peculiar circumstances of his case: OKAFOR v NNAIFE (supra) and NNPC V FAMFA OIL LTD & ANOR (2009) LPELR-2023(SC). Let us put things in proper perspective. The defunct Mercantile Bank of Nigeria (qua mortgagee) sold the mortgaged property lying and situate at No. 38 (now No. 42) Oladeinde Street, Aguda, Surulere, Lagos State to the Respondent by private treaty in February 1995. The sale was evidenced by a Deed of Assignment dated 4/11/95, which is duly registered as No. 21 on Page 21 in Volume 2078 at the Lagos State Land Registry. Three years later, the Applicant (as mortgagor) challenged the sale by initiating Suit No. LD/1327/98 against the Respondent, but not the mortgagee. The suit was eventually resolved in favour of the Respondent against the Appellant/Applicant on 14/1/2010 – a period of twelve years from the date it was filed. The Applicant retained possession of the property throughout the pendency of the suit at the trial Court. His appeal to this Court (filed on 10/2/2010) was dismissed on 19/1/22 – a period of another twelve years. The Appellant/Applicant has now lodged a further appeal at the Supreme Court whilst still retaining possession of the property.

Much as one cannot begrudge the Appellant/Applicant for exercising his constitutional right of appeal to the Supreme Court, this Court cannot also shut its eyes to the deprivation suffered by the Respondent in whose favour judgment was entered since 2010. In this regard, it is deposed in the counter affidavit that the Appellant/Applicant has remained in possession and continue to benefit from the property by collecting rents from tenants even after the High Court decreed title in favour of the Respondent in a considered judgment delivered over twelve years ago on 14/1/2010, which judgment was affirmed on appeal by this Court on 19/1/2022. Bearing in mind that stay is an equitable relief, it seems to me that it would be patently inequitable to grant stay of execution in the peculiar facts and circumstances of this case and thereby perpetuate the deprivation of the longsuffering Respondent from reaping the fruits of the judgment entered in his favour 12 years ago in respect mortgaged property sold to him since 1995. As stated hereinbefore, a successful party in litigation is entitled to reap the fruits of his victory, and the Courts will not make a practice of depriving him of the fruits of the judgment in his favour: VASWANI v SAVALAKH TRADING CO LTD (supra) and SHODEINDE v REGISTERED TRUSTEES OF AHMADIYA MOVEMENT IN ISLAM (supra).

The Appellant/Applicant’s contention that tenants in occupation of the property would be rendered homeless if stay of execution is not granted clearly loses sight of the settled proposition of law that where there is a contract for the sale or demise of a property which is thereafter transferred to a third party, specific performance may be had against the transferee who takes the property with notice of the prior contract. See OBIJURU v OZIMS [1985] 2 NWLR (PT 6) 167 (SC), EZENWA v OKO [1999] 14 NWLR (PT 637) 95 (CA) and Halsbury’s Laws of England, 3rd ed., 330 para. 482. Thus, a purchaser (such as the Respondent herein) who acquires property with tenants in occupation takes the property subject to the equity of those sitting tenants. The purchaser inherits from the former landlord the sitting tenants who retain the right to occupy the property on the terms and conditions of their prior contract (tenancy) with the former landlord, and he can only wrest possession from them by due process of law. See PAN ASIAN AFRICAN CO. LTD v NICON (1982) 9 SC 1. The Appellant/Applicant’s anxiety in that regard is therefore unfounded.

In the ultimate analysis, the Appellant/Applicant has not disclosed any special or exceptional circumstance to warrant the grant of stay of execution, and the course open to me is to record an order dismissing the motion for stay of execution dated and filed on 7/4/22 without further assurance. I so order. There shall be no order as to costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse in draft, the succinct lead ruling delivered by my learned brother: Peter Oyinkenimiemi Affen, JCA. I endorse in toto the judicial reasoning and conclusion in it. The application is entitled to a reserved penalty of dismissal. I, too, dismiss the application. I abide by the consequential orders decreed in the lead ruling.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which the application for stay of execution of the judgment of this Court delivered on 19/1/2022 was dismissed. I agree with, and adopt as mine the resolution of the issue in controversy, as has been comprehensively done by my learned brother.

I see no merit in this application. The Appellant/Applicant has not disclosed any special or exceptional circumstance to warrant the grant of an order of stay of execution. The application is also dismissed by me.