AIRTEL NETWORKS LTD v. ERINWINGHALE
(2022)LCN/16124(CA)
In the Court of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 28, 2022
CA/B/59M/2022(R)
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
AIRTEL NETWORKS LIMITED APPELANT(S)
And
MR. JAMES ERINWINGHALE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL HAS JURISDICTION TO VARY AN ORDER EARLIER MADE BY A TRIAL COURT FOR STAY OF EXECUTION
This Court in Lingo Nig. Ltd. v (mid Lingo Nig. Ltd.) v. Julius Nwodo, Esq. (A 25 of 2003)[2003] NGCA 1, per Muhammad, JCA, (as he then was) stated that this Court has jurisdiction and discretion under Section 16 of the Court’s Act and Order 3 Rule 23 of its Rules 1981 as amended, to vary an order earlier made by a trial Court for stay of execution under certain circumstances at the instance of the Applicant, who initially applied for an order of stay at the trial Court. See: Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; First Bank of Nig. Ltd. v. Doyin Investment Nig. Ltd. (1989) 1 NWLR (Pt. 99) 634. In as much as the law allows an Applicant, who applies for and was granted a stay of execution by the trial Court to apply for better and more favourable terms or conditions, he must however, show very compelling exceptional circumstance, why the terms or conditions must be varied and improved in his favour. Sentinel Assurance Company Limited v. S.G.B.N. Ltd. (1992) 2 NWLR (Pt. 224) 495. PER ORJI-ABADUA, J.C.A.
THE GROUNDS FOR STAY OF EXECUTION IN A MONETARY JUDGEMENT
The instant application involves a money judgment, therefore the need to confine ourselves to the grounds for stay of execution in a monetary judgment. Bearing that in mind, I would at this juncture have recourse to the decision of this Court in Daily Times of Nigeria Plc vs. Chief Mrs. A. S. Kusamotu (2002) LPELR-10993(CA) where Galadima, JCA, (as he then was) said thus:
“As a general rule, in a money judgment, the only ground for a stay of execution is an affidavit showing that if the damages and costs were paid there would be no reasonable probability of getting them back if the appeal succeeds. This raises a substantial ground and it can be considered as a special circumstance. In the case at hand, the applicant has not shown that the respondent will be unable to refund the judgment debt if the appeal succeeds in her counter-affidavit, the respondent has shown conclusively that she is credit worthy. This deposition is not controverted by the applicant. The reason given by the applicant in their affidavit can hardly support any special circumstance. Bare assertion of poverty simpliciter or impecuniosity of an applicant has never been considered as an exceptional circumstance to warrant the grant of stay of execution of a judgment. See Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257. But if there is a plea that the applicant cannot prosecute an appeal, if the judgment debt is paid, and it is established that there are no resources, this could be taken as a special circumstance. It has not been shown in the present application that the applicant has no resources from which they can meet their obligations in the appeal. It is not sufficient to depose simply that the applicant has no resources or they have not “made profit since 1993” as done in paragraph 8 of the affidavit in support of this application. PER ORJI-ABADUA, J.C.A.
SPECIAL CIRCUMSTANCES THAT CAN JUSTIFY A STAY OF EXECUTION
Also in First City Monument Bank Plc vs. Tamstel Nigeria Ltd & Ors (2017) LPELR-42509(CA) this Court observed per Orji-Abadua, JCA, that:
“It is trite that when it comes to issue of stay of execution the Court of Appeal and indeed any Court as stated by the Supreme Court in Vaswani Case (supra) will not make the practice of depriving a successful litigant of the fruits of his success unless under very special circumstances.
“However, in Odedeyi vs. Odedeyi (2000) 3 NWLR Part 650 page 655, the Supreme Court, per Belgore, J. S. C., (as he then was) expounded that “the special circumstances” that can be advanced to justify a stay of execution is very wide and its category is not closed. A strong and substantial ground of appeal does not necessarily mean the appeal may succeed, certainly the Court must be wary of such ground so as not to prejudge the substantive appeal. In cases where the res, the subject matter of the appeal, is at the risk of destruction if a stay is not granted, or its nature may be altered as to make it irreversible to its original state, or if it is monetary and the victorious party is a man of straw, and may not be able to redeem the money should the substantive appeal be decided against him, the Court in its discretion will grant a stay of execution pending determination of the appeal. The word “special” or strong is taken as involving 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.” PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgement): This is an application filed by the Appellant/Applicant praying this Court for an order staying execution of the judgment of the Edo State High Court, Benin Judicial Division, Criminal Division 3, in Suit No. B/600/2018 delivered on the 24th of October, 2018, pending the determination of the appeal against the said judgment; same application having been rejected at the lower Court and for such further or other orders as the Court may deem fit to make in the circumstances.
The application is founded on five grounds thus:
a. The Application (sic) is dissatisfied with the judgment of the Edo State High Court, Benin Judicial Division, Criminal Division 3, delivered ON THE 24TH day of October 2018, granting the Respondent’s Claims.
b. The Applicant is desirous of appealing the judgment of Edo State High Court and has filed a Notice of Appeal.
c. That an order of stay of execution pending appeal is extremely necessary and imperative to preserve the res in this matter.
d. That this Honourable Court has the inherent jurisdiction and powers to grant this application staying the enforcement of the judgment of the lower Court.
e. That enforcement of the judgment will render the appeal nugatory if eventually successful or foist situation of fiat accompli on the Court of Appeal and paralyze the Applicant’s grounds of appeal(sic) are recondite and raise issues of law and fact.
f. That the Appellant/Applicant has placed sufficient materials before this Honourable Court to enable the Honourable Court to exercise its discretion in favour of the Applicant to grant an injunction pending the appeal of the judgment of the High Court of Edo State High Court, Benin Judicial Division, Criminal Division 3, delivered on the 24th day of October, 2018.
The facts strengthening the application are contained in 13 paragraphs affidavit deposed to by one Ebere Ndubueze, a Counsel in Firm of Punuka Attorneys & Solicitors. Attached to the affidavit are Exhibits A, the Enrolled Order of the judgment, B, the Notice of Appeal and C, the Enrolment of Order. The Applicant also filed its written address in support of the Notice of Motion as stipulated by the 2021 Rules of this Court. The Respondent filed a counter-affidavit of nine paragraphs sworn to by him. He attached Exhibit EOA 1, thereto. He equally filed a written address in support of the opposition to the application.
The issue submitted by the Applicant for determination herein is “Whether this Honourable Court should grant this application?
In the written address settled by Sir Onyeka Ehiwuogwu, it was submitted that an application for stay of execution must show that circumstances exist why a stay must be granted and whether the end of justice of the case demands that they be stayed. He cited the case of Graseg (Nig) Ltd vs. R. T. T. B. C (2012) 13 NWLR Part 1316 page 168 and submitted that the discretion of the Court will be exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issues being in status quo until the legal issues are resolved. He further submitted that the Applicant has an arguable appeal which contains substantial issues of law which can only be determined by the appellate Court. He stressed that failure of the lower Court to consider key issues raised in the applicant’s final written address and even protection of constitutional right of appeal and fair hearing against the damages awarded against the Applicant and the findings made by the Court on the foregoing are among the issues that require resolution by this Court on appeal. He stated the principles guiding the grant of an application for stay of execution. He referred to Martins vs. Nicannar Foods (1988) 2 NWLR Part 47 page 97 and submitted that the balance of convenience lies in favour of the Applicant. He further pointed out that there are special circumstances that would warrant the Court to grant the application. He cited the case of Vaswani Trading Co. V. Savalakh & Co (1972) NSCC page 692 at 695 and submitted that it is important to ensure that the whole exercise of the appeal is not rendered nugatory if at the end, the Appellant succeeds and the judgment cannot be recovered or the effect of the judgment reversed. He referred to paragraph 6 of their affidavit in support of the Motion and submitted that the judgment of this Court will be rendered nugatory if the execution of the judgment were to be effected. He relied on Ogundipe vs Akinloye (2002) 10 NWLR Part 775 page 312 at 336 and C. N. Ukachukwu & Sons vs. Okeke (2002) 9 NWLR Part 773 page 676 at 690-691 and submitted that the proper course of action open to Court would be to stay execution pending the determination of the appeal. He further said that the Applicant need not show certainty of success of the point of law raised in a ground of appeal, that the Court is only obliged to consider the chances or likelihood of success. He said that the Applicant’s grounds of appeal raised substantial issues of law which are to be determined by the Court of Appeal. He cited the case of AM. CO (NIG) LTD V VOLKSWAGEN NIG. LTD, (2012) 11 NWLR, Part 1312 page 412 on the existence of special circumstances. He said that such special circumstances would involve the consideration of collateral circumstances and in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings and foist upon the Court, complete helplessness or paralyse in one way or the other, the exercise by the litigant of his constitutional right to appeal or generally provide a situation in which whatever happens to the case, and in particular even if the case succeeds in Court of Appeal, there is no return to status quo.
He further submitted that the grounds of appeal are clear and that if the Claimant/Respondent is allowed to execute the awarded damages in the sum of N8,476,196.80 (Eight Million Four Hundred and Seventy Six Thousand, One Hundred and Ninety Six Naira, Eighty Kobo), which is part of the grounds of the appeal, as well as interest on same against the Applicant in the face of the groaning economy, the Applicant would be adversely affected and helpless and this would have a rippling effect on employees of the Applicant’s company. He further said that the issue of the stoppage of the Applicant’s operations on the land is also an issue to be considered, the Applicant’s business would virtually be crippled by such execution. He further submitted that the Applicant has placed before the Court sufficient materials to enable the Court grant the motion for stay of execution and they urged this Court to so hold.
The Respondent for his part couched one issue as well for the determination of this Court thus: ‘’whether from the antecedent of the appellant/applicant herein, the applicant is entitled to the grant of the order of stay of execution of the judgment of the lower Court sought?
It was submitted on his behalf that the grant or refusal of an application for stay of execution pending an appeal is at the discretion of the Court and such discretion must be exercised judicially and judiciously bearing in mind the equal rights of the parties. Counsel referred to the case of Aboseldehyde Laboratories PLC v. Union Merchant Bank Limited & Anor. (2013) All FWLR Part 711 page 1421 at 1454 in support. He further said that the grant of the application is one that involves the equitable jurisdiction of the Court as same is an equitable remedy and the maxims of equity, ‘he who comes to equity must come with clean hands’ and ‘he who seeks equity must do equity’ are apposite in the instant application. He referred to paragraphs 6(b), 6(f), 6(g), 6(h), 6(j), 6(1) and 6(m) of the counter affidavit deposed to by the Respondent herein and the Enrolment of Order of the lower Court attached to the motion, marked as Exhibit C in the Appellant/Applicant’s motion on notice and submitted that the Appellant/Applicant is in stark disobedience of the lower Court’s Order.
He explained that the Applicant filed an earlier motion on notice on the 6th December, 2018, for stay of execution of the judgment of the lower Court but the Applicant failed woefully to prosecute the same. He pointed out that the equitable maxim: ‘equity aids the vigilant and not the indolent,’ is against the Applicant. He also pointed out that the Applicant and Counsel were absent in Court on the 10th March, 2022 when the Motion was struck out by this Court. Counsel argued that by filing and abandoning the motion on notice filed on the 6th December, 2018, the Applicant has not exhibited any diligence and has used the machinery of Court to prevent the Respondent from enjoying the fruits of the judgment of the lower Court. Counsel submitted that by the decision Chief Great Ovedje Ogboru & Anor vs. Dr. Emmanuel Ewetan Uduaghan & 2 Ors (2014) All FWLR Part 719 at page 1060, a party whose motion on notice is struck out has the option to either file a fresh application or apply that the one struck out be re-listed.
He said that in its fresh application, the Applicant failed to mention the earlier application for stay of execution filed by it which was struck out for want of diligent prosecution. He argued that this act of omission by the Applicant amounts to an abuse of Court process. He cited Ogboru & Anor vs. Uduaghan & 2 Ors (supra), per Ogunbiyi JSC., in support. He argued that by filing this fresh application after 3 years of the judgment without first seeking the leave of Court, the Applicant is in breach of the provisions Order 6 Rule 10 of the Court of Appeal Rules, 2021 which requires an applicant to bring an application for the setting aside of a ruling within 14 days from the date of delivering of such ruling. In this instant case, the ruling of the lower Court was delivered since 3/12/2018. He therefore urged this Court to dismiss this application for being an abuse of Court process and lacking in merit.
Learned Counsel further referred to the case of Chief J. S. Amadi & Ors vs. Mr. Edmund Chukwu & Ors. (2013) All FWLR Part 703 page 1944 at 1950 and contended that the Applicant completely failed to satisfy the condition precedent necessary for the grant of a stay of execution in favour of an Applicant. He submitted that for an unsuccessful litigant to succeed in an application for stay of judgment, such Applicant must show clearly that there exist special or exceptional circumstances showing that the balance of justice is in his/her favour. He said that this is lacking in the application.
Learned Counsel submitted that it is settled law that what constitutes special or exceptional circumstance to warrant the grant of a stay of execution varies from case to case. He then outlined what could be considered as special circumstances where there is a pending appeal that is, where the execution of judgment would: (a) Destroy the res or subject matter of the proceeding; or (b) Foist upon the Court a situation of complete helplessness; or (c) Render nugatory any order or orders of the Appeal Court; or (d) Paralyse in one way or the other, the exercise by the litigant of his constitutional right of appeal; or (e) Provide a situation in which even if the Appellant succeeds in his appeal, there could be no return to the status quo.
He cited the case of Amadi vs. Chukwu (supra) particularly at page 1950, and submitted that the onus is on the Applicant to show that special or exceptional circumstances exist. He said that the balance of convenience tilts towards the side of the Respondent in refusal of the grant of the application for stay of execution in favour of the Applicant.
Further, the Respondent vehemently opposed this application on the ground that the judgment sought to be stayed is a monetary judgment. He referred to paragraphs 6(f), 6(g)-6(k) of the Respondent’s counter affidavit to this application and the case of Pamol (Nig) Limited vs. Illah Agric Project Ltd. (2005) All FWLR part 243 page 787 particularly at page 799 where this Court enumerated the terms upon which the Court may grant a stay of execution in a judgment involving money thus:
(a) Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal.
(b) Whether it would be difficult to secure the refund of the judgment debt and costs from the respondent, if the appeal succeeds, for which purpose the financial ability of the respondent is taken into account.
He then contended that at nowhere in the Applicant’s affidavit evidence was any of those situations shown. He relied on Pamol (Nig.) Ltd v. Illah Agric Project Ltd (supra) at 800-801,
Where it was stated inter alia: “where judgment has been given for the payment of the sum of money and the judgment debtor seeks a stay of execution, the affidavit or affidavits relied upon by him,—apart from stating the relevant facts upon which to consider the principle for stay, must ensure that those facts are full and frank, including a complete and accurate account and description of all the applicant’s income, assets, interests, and properties as well as his obligations and liabilities. That is the only way the Court can best exercise its discretion to grant or refuse the stay”.
Counsel then referred to the affidavit of the Applicant’s affidavit in support of this application and submitted that a quick but insightful perusal of the affidavit will reveal to this Court that nowhere in the said affidavit did the Applicant place facts and figures as to its income, assets, liabilities and obligation, therefore the application must fail. Counsel urged this Court to resolve the lone issue raised in favour of the Respondent and dismiss the application.
Before I proceed to consider this application, it needs to be reminded that this application is asking for stay of execution of the judgment of the Edo State High Court in suit No. B/600/2018, simpliciter. It was in the counter-affidavit of the Respondent it was revealed that the lower Court, though it dismissed the application for stay of execution filed by the Applicant on 3rd December, 2018, however, made an order for the Applicant to pay the judgment sum into an interest yielding account designated by the Assistant Director of Edo State High Court within three days from the date the application was dismissed. What it did was that it refused the application for unconditional stay and ordered the grant of stay of execution on condition that the judgment sum be deposited in an interest yielding account.
This Court in Lingo Nig. Ltd. v (mid Lingo Nig. Ltd.) v. Julius Nwodo, Esq. (A 25 of 2003)[2003] NGCA 1, per Muhammad, JCA, (as he then was) stated that this Court has jurisdiction and discretion under Section 16 of the Court’s Act and Order 3 Rule 23 of its Rules 1981 as amended, to vary an order earlier made by a trial Court for stay of execution under certain circumstances at the instance of the Applicant, who initially applied for an order of stay at the trial Court. See: Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; First Bank of Nig. Ltd. v. Doyin Investment Nig. Ltd. (1989) 1 NWLR (Pt. 99) 634. In as much as the law allows an Applicant, who applies for and was granted a stay of execution by the trial Court to apply for better and more favourable terms or conditions, he must however, show very compelling exceptional circumstance, why the terms or conditions must be varied and improved in his favour. Sentinel Assurance Company Limited v. S.G.B.N. Ltd. (1992) 2 NWLR (Pt. 224) 495. In this case, Tobi, J.C.A. (as he then was) did rightly, in my view, on pages 501-502 of the report, observe as follows: “The applicant has so much rough and turbulent storms to break through or meander. I dare say that the burden placed on an applicant for better and more favourable terms or conditions is heavier than that on a first application for stay. After all, he asked for a stay and stay the Court granted. Therefore, when he wants a variation of the terms or conditions in his favour, he has a big hurdle to cross, applying all gymnastic feats with all dexterity. He must certainly improve upon his first race to have a second bite at the cherry to his taste and therefore to the distaste of the respondent.” Such an applicant can only show the appeal Court having jurisdiction and discretion to vary the conditional stay granted by the trial Court by deposing to facts in an affidavit spelling out the reasons why the conditions are onerous for him to fulfill or unfair to him and why they should be varied. Fawehinmi v. Akilu (1990) 1 NWLR (Pt. 127) 450 at page 469; Ladipo v. Aminike Investment Company Limited (1998) 4 NWLR (Pt. 546) 496 at pages 501-502 paragraphs G-A; Construzion’s cases (supra); Defendant Geronimo v. Janonuzelli (1924) 5 NLR 77; LSDPC v. City Bank (W A.) Ltd. (supra); Okafor v. Nnaife (supra).”
The application before this Court is not for the order of conditional stay to be varied by granting unconditional stay of execution pending the final determination of the appeal. It is a fresh application for an order for unconditional stay. It is evident in the processes before this Court that the Order of the lower Court made on 3/12/2018 for the judgment sum to be paid into an interest-yielding account still subsists. It has not been complied with and has not been set aside and it is not being applied herein to be varied. The present application is not a variation of that order of 3/12/2018. I totally agree with the Counsel for the Respondent that this application is a total abuse of process and ought to be dismissed.
Be that as it may, I will still proceed to consider the substance of this application. The instant application involves a money judgment, therefore the need to confine ourselves to the grounds for stay of execution in a monetary judgment. Bearing that in mind, I would at this juncture have recourse to the decision of this Court in Daily Times of Nigeria Plc vs. Chief Mrs. A. S. Kusamotu (2002) LPELR-10993(CA) where Galadima, JCA, (as he then was) said thus:
“As a general rule, in a money judgment, the only ground for a stay of execution is an affidavit showing that if the damages and costs were paid there would be no reasonable probability of getting them back if the appeal succeeds. This raises a substantial ground and it can be considered as a special circumstance. In the case at hand, the applicant has not shown that the respondent will be unable to refund the judgment debt if the appeal succeeds in her counter-affidavit, the respondent has shown conclusively that she is credit worthy. This deposition is not controverted by the applicant. The reason given by the applicant in their affidavit can hardly support any special circumstance. Bare assertion of poverty simpliciter or impecuniosity of an applicant has never been considered as an exceptional circumstance to warrant the grant of stay of execution of a judgment. See Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257. But if there is a plea that the applicant cannot prosecute an appeal, if the judgment debt is paid, and it is established that there are no resources, this could be taken as a special circumstance. It has not been shown in the present application that the applicant has no resources from which they can meet their obligations in the appeal. It is not sufficient to depose simply that the applicant has no resources or they have not “made profit since 1993” as done in paragraph 8 of the affidavit in support of this application.
The burden is on them to establish this. They must make a full disclosure of their assets and liabilities: See Chris Chukwu v. R. Onyia (1990) 2 NWLR (Pt. 130) 80. This is the only way the Court can best exercise its discretion to grant or refuse the stay. It is not the duty of the judgment creditor to show that the judgment debtor has means to pay the debt. He is entitled only to his fruits of his litigation. The burden is on the judgment debtor to satisfy the Court that placing his liabilities and obligations against his income and all his assets, he deserves to be granted some equitable relief in regard to his indebtedness. That is why the applicant must not suppress or misrepresent facts. Affidavit of the applicant must present detailed facts with every candour.”
Also in First City Monument Bank Plc vs. Tamstel Nigeria Ltd & Ors (2017) LPELR-42509(CA) this Court observed per Orji-Abadua, JCA, that:
“It is trite that when it comes to issue of stay of execution the Court of Appeal and indeed any Court as stated by the Supreme Court in Vaswani Case (supra) will not make the practice of depriving a successful litigant of the fruits of his success unless under very special circumstances.
“However, in Odedeyi vs. Odedeyi (2000) 3 NWLR Part 650 page 655, the Supreme Court, per Belgore, J. S. C., (as he then was) expounded that “the special circumstances” that can be advanced to justify a stay of execution is very wide and its category is not closed. A strong and substantial ground of appeal does not necessarily mean the appeal may succeed, certainly the Court must be wary of such ground so as not to prejudge the substantive appeal. In cases where the res, the subject matter of the appeal, is at the risk of destruction if a stay is not granted, or its nature may be altered as to make it irreversible to its original state, or if it is monetary and the victorious party is a man of straw, and may not be able to redeem the money should the substantive appeal be decided against him, the Court in its discretion will grant a stay of execution pending determination of the appeal. The word “special” or strong is taken as involving 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.”
I will now study the facts deposed to by the Applicant in its affidavit to ascertain if they fulfilled the conditions set out in the aforementioned principles.
The Applicant in its argument referred to paragraph 6 of its affidavit where it averred that the Applicant’s appeal against the judgment of the lower Court referenced in paragraph 4 will be rendered nugatory if eventually successful and foist a situation of fiat accompli on the Court of Appeal and paralyse the Applicant’s right of appeal. There is no deposition in the Applicant’s affidavit indicative of the fact that if the general damages and costs were paid there would be no reasonable probability of retrieving them if the appeal succeeds. As depicted in the above case, the Applicant has not shown that the Respondent will be unable to refund the judgment debt if the appeal succeeds in its affidavit in support of the Motion for Stay.
It was only in the address and submissions of Counsel for the Applicant in support of the Motion that this point was raised and argued by the Applicant’s Counsel that they believe that if the Respondent is allowed to execute the awarded damages in the sum of N8,476,196.80 (Eight Million Four Hundred and Seventy Six Thousand, One Hundred and Ninety Six Naira, Eighty Kobo), which is part of the grounds of the appeal, as well as interest on same against the Applicant in the face of the groaning economy, the Applicant would be adversely affected and helpless and this would have rippling effect on employees of the Applicant’s company. He further said that the issue of the stoppage of the Applicant’s operations on the land is also an issue to be considered, the Applicant’s business would virtually be crippled by such execution. I must state unequivocally that none of these facts were averred in the affidavit evidence of the Applicant upon which Court would have acted. It is trite that submissions of Counsel do not constitute evidence for the parties.
For this reason and other reasons I have given above, I hereby refuse this application and dismiss the same with N50,000.00 costs against the Applicant in favour of the Respondent.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed a draft of the ruling delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA.
His Lordship in the ruling meticulously considered the affidavit evidence proffered in support of the application. The conclusion arrived at cannot be faulted.
As a general rule, in a monetary judgment, the only ground for a stay of execution is an affidavit showing that if the damages and costs were paid, there would be no reasonable probability of getting them back if the appeal succeeds. This raises a substantial ground, and it can be considered as a special circumstance. In this application, this has not been proved.
This glaring deficiency in the Appellant/Applicant’s affidavit, coupled with the other issues which were considered in the leading ruling evinces the refusal of the application by my learned brother which I roundly adopt.
I abide by the order for costs of N50,000.00 in favour of the respondent made in the leading ruling.
ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft, the ruling of my brother, THERESA NGOLIKA ORJI-ABADUA, PJCA. I am in agreement with his reasoning and conclusion. I adopt them as mine. This application for an order staying execution of the judgment of the High Court in Suit No. B/600/2018 delivered on 24th October 2018 pending the determination of the appeal against the judgment of the lower Court lacks merit. The application is consequently dismissed. I make no order as to cost.
Appearances:
…For Appellant(s)
Edwin Atohengbe Esq. For Respondent(s)
