MURPHIS BURGER (NIG) LTD V. MADAM FAVOUR YAWE EGBE
(2010)LCN/3737(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of April, 2010
CA/L/272M/2008
RATIO
JURISDICTION: JURISDICTION OF THE COURT OF APPEAL TO STAY ITS JUDGMENT
This court, like all superior courts of record, has an inherent jurisdiction to stay its judgment. Also by S. 17 of the Court of Appeal Act 2004, the Court of Appeal has the jurisdiction during the pendency of an appeal before it to stay the execution of the judgment of the court which judgment is the subject matter of the appeal. Section 17 of the Court of Appeal Act reads thus:
“An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of court.” PER RAPHAEL CHIKWE AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
MURPHIS BURGER (NIG.) LTD. Appellant(s)
AND
MADAM FAVOUR YAWE EGBE Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A.(Delivering the Leading Ruling): The applicant was the defendant in Suit No. M/9/2005 at the High Court of Lagos State sitting at its Lagos Division. In a considered judgment the trial court on 17th March, 2006 adjudged the plaintiff entitled to immediate possession of No. 37 Adeniran Ogunsanya Street, Surulere, Lagos the lease agreement between the parties having been determined and N400,000.00 per annum Mesne profit from 1st September, 2004 till vacant possession is given up. Dissatisfied with this judgment the appellant by a notice of appeal dated and filed on 20th March, 2006 appealed against the judgment of the trial court to this court. On 8th April, 2008 this court pursuant to Order 17 Rule 10 of the Rules of this court dismissed the appeal. The appellant by notice of appeal dated and filed on 9th April, 2008 appealed against the judgment of this court to the Supreme Court. It subsequently filed this application on the same date it filed the notice of appeal seeking an order of this court staying the execution of the judgment of the trial court. On 18/4/08 the appellant filed in the registry of this court a further ground of appeal. The parties exchanged affidavits. They also exchanged written addresses.
In its written address the appellant determined the issue for determination in its application as ‘whether in the circumstances of this appeal the grounds of appeal and additional ground raises exceptional or substantial issues to entitle the appellant/applicant to the grant of a stay of execution.The respondent on the other hand identified the issue for determination as “whether this Honourable court should in the circumstance of this appeal exercise its discretion in granting a stay of execution in favour of the appellant/applicant’.
In arguing this application, the applicant concentrated substantially in trying to establish that the ruling of this court was wrong. It relied on Nneji vs. Chukwuma (1988) 3 NWLR (Pt.81) 184, State vs. Gwonto (1993) 1 SCNLR 142, Oyeyipo vs. Oyinloye (1987) 1 NWLR (pt 50) 356 and Nishizawa Ltd vs. Jethwani (1984) ALL NLR 470 in coming to the conclusion that the judgment amounted to technical justice and was wrong. It then proceeded to set out the special circumstances as stated in Orient Bank of Nigeria Plc vs. Bilante International Ltd (1996) 5 NWLR (PT 477) 166 in which the execution of the judgment of a court may be stayed as follows:
‘(a) Where execution will have the effect of destroying the subject matter of litigation stay of execution is granted.
(b) Where execution will foist on the Court especially the Court of Appeal a situation of complete helplessness.
(c) Where execution will render nugatory any order or orders of the Court of Appeal.
(d) Where execution will paralyse the exercise by the litigant of his constitutional right of appeal.
(e) Where the appellant cannot be returned to his status quo if the appeal succeeds or
(f) Where the appellant has an important point of law to argue on appeal’.
It concluded that grounds ‘a, b, c, e and f’ had been made out.
There is however a fundamental lacuna in the argument presented by the applicant. This court, like all superior courts of record, has an inherent jurisdiction to stay its judgment. Also by S. 17 of the Court of Appeal Act 2004, the Court of Appeal has the jurisdiction during the pendency of an appeal before it to stay the execution of the judgment of the court which judgment is the subject matter of the appeal. Section 17 of the Court of Appeal Act reads thus:
“An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of court.”
In this application the applicant prays this court for
“An order staying execution of the judgment of Honourable Justice F.O. Atilade of the Lagos High Court, Lagos Judicial Division dated the 17th day of March, 2006 pending the determination of the appeal to the Supreme Court of Nigeria against the ruling of the Court of Appeal dated 8th April, 2008.”
The prayer above is not invoking the inherent powers of this court to stay its judgment. It is rather asking this court to stay the execution of the judgment of the trial court. The applicant’s appeal to this court has been dismissed. There is therefore no pending appeal from the trial court. Without a pending appeal against the judgment of the trial court, S.17 of the Court of Appeal Act 2004 cannot avail the applicant. This court is not in a position to grant the prayer sought. This application is dismissed with N20,000.00 costs to the respondent.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read, before now, the lead ruling prepared and just delivered by my learned brother, Agbo, J.C.A. I entirely agree with the reasoning and conclusion reached therein, to the effect that the instant application, filed on 09/4/08, is unmeritorious.
Consequently, the said application is hereby dismissed by me. I abide by the order of costs of N10,000.00 in favour of the Respondent.
REGINA OBIAGELI NWODO, J.C.A.: I have read in advance the lead Ruling of my learned brother, Agbo J.C.A. I agree with his reasonings and the conclusion therein.
I also dismiss this application with cost of N20,000.00 to the Respondent.
Appearances
E. O. OBOH;
P. I. OKOFor Appellant
AND
K.O. DAWODUFor Respondent
