NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY & ANOR v. HENSMOR NIGERIA LTD.
(2012)LCN/5357(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of May, 2012
CA/L/62M/2012
RATIO
COURT: DUTY OF A PARTY URGING A COURT TO INVOKE ITS EQUITABLE JURISDICTION
It is trite that although the Courts of Law in Nigeria, by their institutional and jurisdictional set up, operate both the principles of common law and the doctrine of equity, a party urging the Court to invoke its equitable jurisdiction in his favour, when seeking an equitable remedy, must satisfy the Court, by deposing to facts articulated by the Law, why the particular equitable remedy should be granted. SENTINEL ASS. CO. LTD. VS. S.G.B.N., LTD. (1992) 2. NWLR Pt. 224 Pg. 495 at 500 G-H. PER RITA NOSAKHARE PEMU, J.C.A.
JUDGMENT: PRESUMPTION WHEN AN ORDER OF A LOWER COURT IS NOT WRONG
Decidedly, when an order or Judgment of a lower Court is not manifestly wrong or illegal, it is presumed correct, until the contrary is established. PER RITA NOSAKHARE PEMU, J.C.A.
ACTION: WHETHER A SUCCESSFUL LITIGANT BE DENIED THE FRUIT OF HIS SUCCESS
Therefore the principle laid down by the Apex Court, is that a successful litigant should not be denied the fruit of his success unless of course, where some special or exceptional circumstances are shown to exist. See: DEDUWA v. OKORODUDU (1974) 6 SC 21; VASWANI TRADING CO. V. SAVALAKA & CO. (1972) 72 S.C. 77; KIGO (NIG) LTD. V. HOLMAN BROS (NIG) LTD. (1980) 5-7 S.C. 60;
OKAFOR V. NNAIFE (1987) 4 NWLR Pt. 64. 729; MARTINS V. NICAMOR FOOD & CO. LTD. (1988) 2. NWLR Pt. 74. 75; AJOMALE V. YADUAT NO. 2 (1991) 5. NWLR Pt. 191. 266. PER RITA NOSAKHARE PEMU, J.C.A.
EVIDENCE: DOCUMENTS CONSIDERED PUBLIC DOCUMENTS
Section 109 of the Evidence Act 1990 has this to say-
“The following documents ore public documents –
(a) documents forming the acts or records of the acts –
- i) of the sovereign authority
- ii) of official bodies and tribunals, and
iii) of public offices, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) public documents kept in Nigeria of private documents” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY
2. ENGINEER DOMINIC ALIM Appellant(s)
AND
HENSMOR NIGERIA LTD. Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Lead Ruling): By notice in a motion dated 7th February, 2012 and filed on same date, the Applicants seek an order of this Honourable Court for an unconditional stay of Execution of the Judgment of the Federal High Court, delivered on the 2nd day of December 2011.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
In support of the application is a 15 paragraphs affidavit sworn to by one Bibiana Orekyeh, lawyer in the chambers of Louis Mbanefo & Co, representing the Applicants in the suit. There is also a further affidavit filed on 15/3/2012.
Annexed to the application are three exhibits, viz Exhibits BO1, BO2 and BO3 respectively.
Exhibit “BO1” is the Certified True Copy of the Judgment of the Federal High Court, Lagos of Friday 2nd of December, 2011, delivered by Honourable Justice O.E. Abang.
Exhibit “BO2” is the Notice of Appeal filed by the Applicants on the 6th of December, 2011.
Exhibit “BO3”, en bloc are the copies of Bank Statements relating to some of the accounts of the 1st Applicant. They are however not certified according to law. It offends Section 114(1) of the Evidence Act 1990.
The Applicants had filed a motion for Stay of Execution of the Judgment of Honourable Justice O.E. Abang delivered on the 2nd of December 2011, whereby he ordered the Applicants to pay the sum of approximately N6,000,000,000.00 (Six Billion Naira) to the Respondent.
The court below, having heard arguments on the motion, on the 3rd of February 2012, granted a stay of execution, with conditions.
A copy of the said Ruling was however not annexed to this application.
The Respondent filed a counter-affidavit on the 1st of March 2012 and a further counter affidavit on the 19th of March 2012.
In considering this application, I observe that the application is brought pursuant to order 7 Rules 1 & 3 of the Court of Appeal Rules 2011; Section 17 Court of Appeal Act Cap. C36 LFN 2004, and under the inherent jurisdiction of this Court.
The Application reads thus, inter alia
“… as counsel may be heard on behalf of the Appellants/Applicants for on unconditional Stay of Execution of the judgment of the Federal High Court delivered on the 12th day of December 2011 …”
In paragraphs 3, 5 and 6 of the affidavit in support of the application to this Court the Applicants deposed thus:-
Paragraph 3: “That on the 2nd day of December 2011, the trial court delivered Judgment on this suit in favour of the Respondent and ordered the Appellants/Applicants to pay the sum of approximately six billion naira to the Respondent. A copy of the said judgment is annexed hereto and marked Exhibit “BOT””
Paragraph 5: “That the Appellants/Applicants filed a Motion to Stay Execution of the Judgment aforesaid of the Court below pending the final determination of the Appeal herein.”
Paragraph 6: “That the Court below heard arguments on the aforesaid Motion and in its Ruling delivered on the 3rd day of February 2012, granted a Stay of Execution on the condition that the Appellant/Applicants deposit the Judgment sum aforesaid with the chief Registrar of the Court below within 74 days from the date of the aforesaid Ruling. The Court further ordered that the Appellants/Applicants file on affidavit of compliance with the said order within 14 days”
Paragraph 7: “That the total sum ordered by the Court below to be paid into court is in excess of six billion naira”
The facts in paragraphs 3, 5, and 6 in the affidavit in support of this application were admitted in paragraphs 3, 5 and 6 of the Counter-affidavit of the Respondent filed on the 1st of March, 2012.
It is apparent that the Applicants only sought an order for stay of execution simpliciter. They did not seek an Order, pending appeal.
Order 7 Rule 3 of the Court of Appeal Rules 2011 has this to say:
“Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal” (Underlined for emphasis)
Section 17 of the Court of Appeal Act 2004 has this to say:
“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 he imposed in accordance with Rules of Court”
It is apparent that conditional stay of execution was granted the Applicants on the 3rd of February 2012 by the lower Court. This application was filed on the 7th of February 2012 by the Applicants, but without complying with the Order made by the Federal High Court, that they pay the Judgment sum of approximately six billion naira to the Respondent, which shall be deposited with the Chief Registrar of the Court below, within 14 days from the date of the aforesaid Ruling. The Applicants were further ordered to file an affidavit of compliance with the said order, within 14 days.
I wonder why the Applicants brought this present application when the provisions of Order 7 Rule 3 of the Court of Appeal Rules (which they rely on) speak of a situation where an application for stay was refused at the lower court.
The Applicants had not deposed to the fact that an application for conditional stay was refused them at the Federal High Court. Indeed the application was granted them.
They had not sought a variation of that order of the Federal High Court granting them conditional stay of execution. Neither did they ask that it be annulled. Neither had they obeyed the order of the Court.
It is trite that although the Courts of Law in Nigeria, by their institutional and jurisdictional set up, operate both the principles of common law and the doctrine of equity, a party urging the Court to invoke its equitable jurisdiction in his favour, when seeking an equitable remedy, must satisfy the Court, by deposing to facts articulated by the Law, why the particular equitable remedy should be granted. SENTINEL ASS. CO. LTD. VS. S.G.B.N., LTD. (1992) 2. NWLR Pt. 224 Pg. 495 at 500 G-H.The Applicants, in my view, had treated the order of the Court below with levity and abandon. In fact, the Applicants, having failed and/or refused to comply with the condition attached to the stay granted in its favour at the lower court, the Judgment creditor ought to have taken steps to enforce the Judgment.
This is because the lower court had granted them a conditional stay.
Whatever reasons the Applicants have, (and they have proffered no reasons for flouting the order of the lower court), its conduct cannot be described as salutary.
UBN LTD. VS. ODUSOTE BOOKSTORE LTD. (1994) 3 NWLR Pt.331 @ 127 @ 152 a-h.
Decidedly, when an order or Judgment of a lower Court is not manifestly wrong or illegal, it is presumed correct, until the contrary is established.
Therefore the principle laid down by the Apex Court, is that a successful litigant should not be denied the fruit of his success unless of course, where some special or exceptional circumstances are shown to exist. See: DEDUWA v. OKORODUDU (1974) 6 SC 21; VASWANI TRADING CO. V. SAVALAKA & CO. (1972) 72 S.C. 77; KIGO (NIG) LTD. V. HOLMAN BROS (NIG) LTD. (1980) 5-7 S.C. 60;
OKAFOR V. NNAIFE (1987) 4 NWLR Pt. 64. 729; MARTINS V. NICAMOR FOOD & CO. LTD. (1988) 2. NWLR Pt. 74. 75; AJOMALE V. YADUAT NO. 2 (1991) 5. NWLR Pt. 191. 266.The Applicants, having disobeyed the order of the lower court, and having failed to seek an order to vary the said order, or to seek an order declaring it null and void, had no right to approach this Court seeking the same order, which had been granted them at the lower Court.
He who seeks equity must do equity. He who comes to equity must come within clean hands. Equity leans against double portions.
In UBN LTD. VS. ODUSOTE BOOKSTORE LTD. (supra) the application was for stay of execution pending appeal, unlike the present application which is for unconditional stay of execution.
The Applicants had sought and obtained an order for stay of conditional execution from the Federal High Court on the 3rd of February 2012 (words from their own deposition Re-Paragraph 6 of the affidavit in support of this application).
Why then is this present application?
It, in my view is vexatious and irritating to the adverse party, and indeed this Court. The application at the lower Court was granted with conditions attached. The Applicants had flouted the order of that Court and is bringing the same application to this Court. This Court cannot entertain such an abuse. The abysmal failure of the Applicants to comply with the order of the lower court, and running to this court for umbrage is deprecated.
The Applicants have not sought for a variation or annulment of the order of the lower Court. To allow this application, would be in my view prejudicial to the Respondent.
The application is one that is devoid of merit and ought to be struck and same is hereby struck out.
Assuming I am wrong, it would be necessary to observe that in his argument, opposing the application, L. K. Awodein SAN submits that the Applicants must, in an application of this nature, show very extreme circumstances why the terms must be varied – with respect, a prayer which the Applicants had not sought. In IGE V. OLULOYO, it was held inter alia: that no Court has the power to grant reliefs or remedies not claimed before it.The Applicants (he submits) also have to show how the conditions are oppressive and onerous to them – citing SENTINEL ASSURANCE CO. LTD. v. S.G.B.N. LTD. (1992) 2 NWLR Pt. 224 at 495 @ 501; KOPAK CONSTRUCTION LTD. v. EKISOLA (1998) 10 NWLR. Pt. 568 at 120 @ 129 e-f.
He submits that nowhere in both the affidavit in support of this application, and further affidavit, did the Applicants show that the conditions of the lower court were oppressive and onerous. On the contrary, he further submits, they say that they have the resources to pay (refers to paragraphs 8 and 9 of the Supporting Affidavit). He urges that they do not deserve unconditional stay.
He contends that leaving the Judgment debt in the hands of the debtor is not proper – citing UNION BANK V. ODUSOTE BOOKSTORE LTD. (1994) 3. NWLR Pt. 331 of 121 @ 152 a-b. He urges Court to refuse the application and preserve the RES. That the matter should not enure to the Judgment debtor’s benefit.
He submits that they have gone past the unsubstantiality of the Grounds of Appeal.
Replying on point of law, L.N. Mbanefo SAN cites VASWANI V. SAVAUKAH (supra) where the conditions for grant of a stay of execution are enunciated. He also cites ORIENT BANK NIG. PLC. V. BILANTE NIG. LTD, (1996) 5 NWLR Pt. 447. 166 @ 184. He submits that there are recondite Grounds of Appeal which amount to special circumstances citing UNION BANK LTD. v. EMOLE (1991) NWLR. Pt. 213 @ 74 @ 83 (KUTIJI JSC); GOV. OF GONGOLA STATE V. TUKUR (1989) 4. NWLR Pt. 592 @ 609.
In paragraph 4 of the further Counter-affidavit filed on the 19th of March 20L2, by the Respondent – he deposed thus:
“Now shown to me and marked Exhibit KA1 is a certified True copy of pages 1 and 3 of the punch publication of 10th March, 2012 which carries o news item on the Applicants’ headed: “Oronsanye committee: Navy, NPA demand scrapping of NIMASA”.
This fact was buttressed by Exhibit “KA1”, attached to the Respondent’s further counter affidavit filed on the 19th of March 2012.
Notably is that the Applicants had filed no reply to this deposition. The facts are therefore deemed, in law, admitted.
Now, in paragraph 9 of the affidavit in support of this application, the Applicants had deposed
“That there is annexed hereto and marked Exhibit “B.O.3″ certified copies of hank statements relating to some of the accounts of the 1st Appellant/Applicant supplied to me by Mr. Patrick Akpobolokemi aforesaid which I verity believe to he correct”.
Exhibit “B.O.3” en bloc is not certified. They are purportedly statements of account from Mainstreet Bank.
Section 109 of the Evidence Act 1990 has this to say-
“The following documents ore public documents –
(a) documents forming the acts or records of the acts –
i) of the sovereign authority
ii) of official bodies and tribunals, and
iii) of public offices, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) public documents kept in Nigeria of private documents”
In Section 111 of the Act it says:
“Every public officer having the custody of a public documents which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal lees there for, together with o certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of o seal, and such copies so certified shall be called certified copies”
The use of the word “Shall” in this provision conjures mandatoriness, and the conditions specified must be met and satisfied. NONYE V. ANYICHIE (2005) 2 NWLR (Pt.910) 623.
Now, the documents in Exhibit “B.O.3” en bloc, have not been certified according to law. This is because, the official title of the officer certifying same was not provided. Only his names, initial, his signature and date were provided.
Assuming I am poised to granting this application as it is, it would be prejudicial to the Respondent, because this application is vexatious, as first of all, a copy of the application to the lower court was not annexed to this application. Second of all, this application should not have come before this Court at all, as it has not been refused at the court below. (See paragraphs 5 and 6 of the affidavit in support of this application – (words from the mouth of the Applicants). The Applicants should comply with the order made by the lower court, as their application there was granted as prayed, or in the alternative ask for a variation of that order. This they have failed to do.
Either way this application is in my humble view devoid of merit and same is hereby struck out with costs of N30,000 in favour of the Respondent.
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have read the Ruling just delivered by my learned sister RITA NOSAKHARE PEMU, JCA, I am in complete agreement with her reasoning and conclusion that the motion is incompetent being in disobedience of Order 7 Rule 3 of the Court of Appeal Rules. In the circumstances, the motion is hereby struck out.
I abide by all consequential orders made.
M. A. DANJUMA, J.C.A.: The Appellant/Applicants herein had been granted a conditional stay of execution pending appeal with the condition thereof being a deposit of the adjudged Judgment sum into a deposit account to be opened by the chief Registrar of the Lower court. That order has neither been obeyed nor varied by that court or this court. The instant Application to unconditionally stay the execution of the Judgment or order as made without first asking that the conditional order of stay be set aside or showing that it had been obeyed surely smarks of abuse of judicial process.
The Applicants/Appellants were in default of order on deposit of Judgment sum as a condition determination of appeal.
That it is an abuse of court process to seek to super impose an order of unconditional stay on the order of conditional stay without justifiable reasons is certainly an insult and irritation being foisted on the courts and the adverse party. It is an attempt to ridicule the even handed administration of Justice and sabotage the fountain of equity.
A party who does not obey or is in disobedience of a court order cannot be entitled to or be granted the indulgence of the exercise of the equitable jurisdiction of a court of law.
So long as, a party is in disobedience or contempt of the lawful authority, power and orders of a competent court of taw, he cannot be allowed any relief sought in equity. He that comes to equity must come with clean hand; that is to say, he who seeks equity must do equity.
I remember the apex court of the land (supreme Court of Nigeria) deprecating such earring and aberrant party or litigant in the case of the GOVERNOR OF LAGOS STATE Vs. OJUKWU 1986 1 NWLR; that the court cannot exercise an equitable jurisdiction in aid of a person guilty of disobedience to its orders, as such a litigant by even approaching the court is merely one that is out to taunt the court.
Why should I lend my judicious helping hand to a taunting, disobedient and disentitled person or litigant?
To do so, will be in violent collision course with the trite position of the law that law and equity shall be administered concurrently; and in their state of fusion since the advent of the Judicature Act of 1875, “Equity,” shall always prevail in the even of conflict. For the avoidance of doubt, the Applicants should be made to understand that the proof and certification of their Exhibits “BO3” – being statements of account, is not the issue that operates against them in this application, although I should state that a private record or statements of account needed not be certified as a public document but whether done or not, it is the equitable consideration that has disentitled them to any equitable relief from this court. This is obvious, as the Appellants/Applicants’ averments in paragraphs 3, 5, 6 and 7 which have not been countered is an admission by the Applicants themselves that a subsisting Judgment or order annuring to the benefit of the respondent subsists. Is it equitable to deny a successful litigant of the fruit of his Judgment without a Justifiable cause?
I have looked at the option left the appellants, and that is even if they had complied with the conditional order of Stay of execution, this application, on its merit, would equally not have the light of a meritorious
conclusion, on account of the palpable legal defects rightly observed, by the leading Judgment of my ford, RITA N. PEMU JCA.
It is for the above views and the more comprehensively set out views in the leading judgment, which I adopt as mine, that I also refuse this application. I abide by the order struck out same with costs of N30,000 only.
Appearances
L. N. Mbanefo (SAN), B. Orekyeh (Mrs.) C. Megafu (Mrs.)For Appellant
AND
K. Awodein (SAN) with him I. O. Zaid Esq, A. Agbaje (Mrs.) and P. N. Omorodion (Mrs.)For Respondent
