IORPUU SOOM & ORS v. TYOTER SHIMA JIBO & ORS
(2019)LCN/13321(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2019
CA/MK/68/M/2019(R)
RATIO
JUDGMENT: THE COURT GENERALLY HAS THE INHERENT JURISDICTION TO GRANT STAY OF ITS OWN JUDGMENTS
Generally, a Court has inherent jurisdiction to grant the stay of its judgment that is being challenged on appeal to a higher Court. In addition to its powers as embodied in Section 17 of the Court of Appeal Act, 2004 and the extant Rules of this Court, particularly Order 4 Rule 6, Court of Appeal Rules, 2016, this Court is intrinsically empowered to grant a stay of execution of its judgment pending further appeal. The considerations that ground the grant of a stay of execution pending appeal have been well articulated in various judicial pronouncements. Foundationally, the power to grant or refuse stay of execution pending an appeal lies at the discretion of the Court, which discretion must be exercised judicially and judiciously, bearing in mind the equal or competing rights of the parties; Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd & Anor (2013) LPELR-20180(SC); Military Governor of Lagos State & Ors v. Ojukwu & Anor (1986) LPELR-3186(SC); SPDC (Nig) Ltd v. Amadi & Ors (supra), (2011) LPELR-3204(SC); Deduwa & Ors v. Okorodudu & Ors (1974) LPELR-935(SC); Momah v. VAB Petroleum Inc (2000) LPELR-1905(SC).PER ONYEKACHI AJA OTISI, J.C.A.
STAY OF EXECUTION: PRINCIPLES GUIDING STAY OF EXECUTION
Restating established principles that guide the grant of an order for stay of execution pending appeal, the Supreme Court, per the Noble Law Lord, Oputa, JSC in the locus classicus Okafor v Nnaife & Ors (1987) LPELR-2420(SC), said, pages 10 – 12 of the E-Report:
What principles will, and should guide the Courts in applications for a stay of execution. These principles have been reiterated in very many decisions of this Court. Perhaps it may be well here to re-emphasize some of them.
(1) The Courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the Court is bound to exercise that discretion both judicially as well as judiciously and not erratically.
(2) 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 Respondents equal right to justice is a discretion that has not been judicially exercised.
(3) 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. See the Annot Lyle (1886) 11 P.D. 144 at p. 116 C.A. per Bowen, L.J.
(4) An unsuccessful litigant applying for a stay must show special circumstances or exceptional circumstances eloquently pleading that the balance of justice is obviously weighted in favour of a stay.
(5) What will constitute these special or exceptional circumstances will no doubt vary from case to case. By and large, however, this Court in Vaswani Trading Company v. Savalakh and Company (1972) 12 S.C. 77 at p. 82 held that 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 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.”
(6) The onus is, therefore, on the 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.
(7) The Court will grant a stay where its refusal would deprive the Appellant of the means of prosecuting the appeal – Emmerson v. Ind. Cooper & Co. (1886) 55 L.J. Ch. 905.PER ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. IORPUU SOOM
2. BEM AWAKA HUR
3. ZAKI NYITSE APEAKIGHIR
4. MRS. ANANEMWAM
KOSOM
5. PHILOMENA MSEVER KOSON Appellant(s)
AND
1. TYOTER SHIMA JIBO
2. TWAR ANZA JIBO
3. KWA KAAIOR JIBO
4. SAAMBE GBERTYO JIBO Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Lead Ruling): By Motion on Notice filed on 26/4/2019, the Applicants seek the following orders:
1. An order Staying the Execution of the judgment and Orders of the Court of Appeal, Makurdi in Appeal No. CA/MK/157/2014 between Iorpuu Soom & 4 Others vs. Tyoter Shima Jibo & 3 Others decided on the 12th day of April, 2019 which upheld the judgment of the High Court Benue State in Appeal No. SHC/13A/2013 decided on the 30th day of May, 2014 pending the hearing and determination of the appeal filed to Supreme Court of Nigeria.
2. AND FOR SUCH FURTHER ORDER(S) as the Court may deem fit to make in the circumstances of this case.
The grounds on which the application was filed were:
1. The Appellants appealed to the Court of Appeal, Makurdi in Appeal No. CA/MK/157/2014 from the decision of High Court of Benue State sitting in its appellate jurisdiction entered against them on the 30th day of May, 2014.
2. That on the 12th day of April, 2019, this Court gave its decision in the matter and dismissed the appeal of the Appellants.
3. That dissatisfied with the decision of
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the Court, the appellants filed their Notice of Appeal as of right on issues of law alone on the 17th day of April, 2019.
4. That the subject matter of the Appeal is a contest between the parties as to who is entitled to bury the remains of Aondofa Emmanuel Merbee alias Aondofa Emmanuel Koson.
5. That the remains of the deceased since his death has been in custody of the 4th Appellant who is the mother of the deceased and she has paid for the maintenance and upkeep of the body in the mortuary throughout the pendency of this appeal.
6. That if a stay of execution is not granted and the remains released to the respondents and subsequently buried, the subject matter of the Appeal will be destroyed and the outcome of the appeal would be rendered nugatory.
7. That it is in the interest of justice that the status quo ante bellum be maintained pending the outcome of the appeal.
?In support of the application is an affidavit of five paragraphs to which had four Exhibits marked A ? D. The Respondent filed a Counter Affidavit on 10/5/2019 of nine paragraphs in opposition. In response, the Applicants filed a Further Affidavit of seven
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paragraphs on 20/5/2019.
At the hearing of the application on 20/5/2019, N.E. Tsobaza, Esq. who appeared for the Applicants, urged the Court to discountenance the depositions in the counter affidavit which, he argued, were extraneous to the issue in controversy in this application. The application for an order of stay of execution of the order of this Court was sought to maintain the status quo existing between the parties as at the time hostilities began. This status quo was that the remains of the deceased Emmanuel Aondofa Jibo, also called Emanuel Aondofa Koson, had been in the custody of the Applicants from the time trial began up to the filing of this application. The Applicants have not been shown to have compromised with the remains of the deceased. The balance of justice was in favour of the grant of the application. The Court was urged to grant the application.
?For the Respondents, F.M.Z. Umar, Esq. opposed the application, relying on the depositions in their counter affidavit. He submitted that in an application of this nature, the Court is called upon to strike a balance between the party who has judgment in his favour and the other party
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against who the judgment stands. An application for stay is discretionary in nature, and the Court exercises its discretions judicially and judiciously. Reliance was placed on the case of SDPC v Amadi (2011) All FWLR (PT 593) 1817 at 1874. The party applying for stay must have the balance of convenience in his favour. It was submitted that the Applicants had failed to establish this condition in their affidavits. The balance of convenience was in favour of the Respondents. There was no justification to employ resources to take care of the living to care for the dead when the corpse should have been buried. He argued that this application was repugnant to natural justice and good conscience. Mr. Uwar urged the Court to dismiss the application as it lacked merit.
In reply on points of law, Mr. Tsobaza submitted that the repugnancy rule is not applicable herein. The right of the Applicants to seek this order was enshrined in the Rules of this Court. He again urged the Court to grant the Order sought.
Resolution
The uncommon res herein is the corpse or remains of one Emmanuel Aondofa Jibo, also called Emanuel Aondofa Koson, who died on 3/8/2013.
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This Court had on 12/4/2019 in Appeal No CA/MK/157/2014 dismissed the appeal of the Applicants lodged against the decision of the lower High Court sitting in its appellate jurisdiction. It is against the said decision that this application seeks a stay of execution pending the determination of a further appeal to the Supreme Court.
Generally, a Court has inherent jurisdiction to grant the stay of its judgment that is being challenged on appeal to a higher Court. In addition to its powers as embodied in Section 17 of the Court of Appeal Act, 2004 and the extant Rules of this Court, particularly Order 4 Rule 6, Court of Appeal Rules, 2016, this Court is intrinsically empowered to grant a stay of execution of its judgment pending further appeal. The considerations that ground the grant of a stay of execution pending appeal have been well articulated in various judicial pronouncements. Foundationally, the power to grant or refuse stay of execution pending an appeal lies at the discretion of the Court, which discretion must be exercised judicially and judiciously, bearing in mind the equal or competing rights of the parties;
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Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd & Anor (2013) LPELR-20180(SC); Military Governor of Lagos State & Ors v. Ojukwu & Anor (1986) LPELR-3186(SC); SPDC (Nig) Ltd v. Amadi & Ors (supra), (2011) LPELR-3204(SC); Deduwa & Ors v. Okorodudu & Ors (1974) LPELR-935(SC); Momah v. VAB Petroleum Inc (2000) LPELR-1905(SC).
Restating established principles that guide the grant of an order for stay of execution pending appeal, the Supreme Court, per the Noble Law Lord, Oputa, JSC in the locus classicus Okafor v Nnaife & Ors (1987) LPELR-2420(SC), said, pages 10 – 12 of the E-Report:
?What principles will, and should guide the Courts in applications for a stay of execution. These principles have been reiterated in very many decisions of this Court. Perhaps it may be well here to re-emphasize some of them.
(1) The Courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the Court is bound to exercise that discretion both judicially as well as judiciously and not erratically.
(2) A discretion to grant or refuse a stay must take into account the competing rights of the parties to
6
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 to justice is a discretion that has not been judicially exercised.
(3) 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. See the Annot Lyle (1886) 11 P.D. 144 at p. 116 C.A. per Bowen, L.J.
(4) An unsuccessful litigant applying for a stay must show ?special circumstances? or ?exceptional circumstances? eloquently pleading that the balance of justice is obviously weighted in favour of a stay.
(5) What will constitute these ?special? or ?exceptional? circumstances will no doubt vary from case to case. By and large, however, this Court in Vaswani Trading Company v. Savalakh and Company (1972) 12 S.C. 77 at p. 82 held that such circumstances will involve ?a consideration of some collateral circumstances and perhaps in some cases
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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 Court of Appeal, a situation of c
