ALHAJA KUDIRAT IJAIYA IBIYEYE & ANOR V. ABDULLAHI GOLD & ORS (2012)

ALHAJA KUDIRAT IJAIYA IBIYEYE & ANOR V. ABDULLAHI GOLD & ORS

(2012)LCN/5484(CA)

In The Court of Appeal of Nigeria

On Monday, the 25th day of June, 2012

CA/IL/M.95/2010 (R)

RATIO

EVIDENCE: ESSENCE OF FACTS

Lets it is forgotten, facts are the fountain heads and forerunners of the law so that facts of case must be symmetrical before the application of one to the other in accord with the doctrine of stare decisis, see Abdulhamid v. Akar (2006) 13 NWLR (Pt. 996) 127; Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Obasi Bros. Co Ltd. v. M. B. A. Ltd. (2005) 9 NWLR (Pt. 929) 117. PER OBANDE OGBUINYA, J.C.A.

JUDGMENT: PRINCIPLES GUIDING THE COURT IN AN APPLICATION FOR A STAY OF EXECUTION

(a) A court has the unfettered discretion to grant or refuse a stay of execution of judgment, but such discretion must be exercised judicially and judiciously. Here, judicious connotes: proceeding from or showing sound judgment, having or exercising sound judgment and marked by discretion, wisdom and good sense.

(b) A court, in granting or refusing a stay, must take into account the competing right of parties to justice, far from being biased for or against one party.

(c) A successful party is entitled to the fruits of his judgment and must not be deprived of same except in situations recognized by law.

(d) A court has to protect the judgment it has awarded to a party.

(e) A court shall strive to preserve the subject-matter of any litigation before it.

(f) A stay is never used as a substitute for obtaining a judgment which a court has denied a party. These factors, regulating a stay of execution of judgment, have, inter alia, been noted in a volley of judicial authorities, see Ajomale v. Yaduat (No. 2) (supra); Okafor v. Nnaife (1087) 4 NWLR (pt. 64). 129; T. S. A. Ind. Ltd. v. Kema Inv. Ltd. (2006) 2 NWLR (Pt. 964), 300; NNPC v. Famfa Oil Ltd. (2009) 12 NWLR (pt. 1156) 462. PER OBANDE OGBUINYA, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF IN AN APPLICATION FOR A STAY OF EXECUTION OF JUDGMENT AND HOW IT SHOULD BE PROVEN

In the eyes of the law, a special or exceptional circumstance is: “a peculiar or unique circumstance which is additional to the ordinary state of affairs,” see Nika Fishing v. Lavina Corp (2008) 35 NSCQR 1 at 39, per Tobi, JSC; N.I.W.A v. SPDCN Ltd (2008) 13 NWLR (Pt. 1103) 48. As to what constitute special circumstances; the incisive and dazzling insights made by Coker, JSC, in the case of Vaswani Trading Co. V. Savalakh & Co. (1972) 12 SC 77 at 82, a locus classicus on ingredients of special circumstances, are opposite. His Lordship, succinctly, stated:

“…When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it 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 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.

See, also, Oyelami V. Mil. Admin. Osun State (supra); Onuzulike V. Commissioner for Special Duties, Anambra State (supra); Olunloyo V. Adeniran (2001) 14 NWLR (Pt. 734) 699; Kabba Multipurpose Co-operative Union Ltd V. Irewole Multiple purpose Union Ltd (supra); Advance Coating Technology Nig. Ltd V. F.B.N. Plc (supra).

It appears that special circumstances in relation to application for a stay are not open ended in the sense that one or more may germinate from a particular case depending on its facts, see NNPC V. B.C.E. (supra). In this wise, generally, recondite, arguable or substantial points of law in a ground of appeal and poverty, resulting in the applicant’s inability to prosecute an appeal, have been held to quality as special circumstance to warrant a grant of a stay, see Okafor V. Nnaife (supra)/(1987) 9 10 SC 105; T. S. A. Ind. Ltd V. Kema Inv. Ltd (supra); NNPC V. Famfa Oil Ltd. (supra); Odedeyi V. Odedeyi (supra).

APPEAL: ORIGIN OF RIGHT OF APPEAL

Needless to say that the right of appeal is donated to citizens by the Constitution, the fons et origo of our laws. Being a Constitutional right, the right of appeal, which enures to all citizens of Nigeria, overrides and dominates most other negative principles aimed at foreclosing it, see, E.F.P. Co. Ltd. V. N.D.I.C. (2007) 9 NWLR (Pt. 1039) 276 at 253; Nwana V. F.C.D.A. (2007) 11 NWLR (Pt. 1044)59. PER OBANDE OGBUINYA, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. ALHAJA KUDIRAT IJAIYA IBIYEYE
2. INSPECTOR GENERAL OF POLICE Appellant(s)

AND

1. ABDULLAHI GOLD
2. RASAQ ADU
3. MUBARAK ADI Respondent(s)

OBANDE OGBUINYA, J.C.A. (Delivering the Lead Ruling): By motion on notice, dated and filed on 29/02/2012, the appellants/applicants prayed this court as follows:
“1. AN ORDER of interlocutory injunction restraining the Respondents from taking any step or acting in anyway under the judgment of your Lordships delivered on 07/12/2011 pending the determination of the Applicants’ appeal filed against the said judgment.
2. AN ORDER staying all the executory orders in the judgment of this Honourable court delivered on 07/12/2011 which executory orders:
(a) Awarded the sum of N100, 000.00 to each of the Respondents against the 1st Appellant/Applicant.
(b) Ordered the Appellant/Applicant to tender a public apology to the Respondents.
3. AND for any order or further orders which this Honourable Court may deem fit to make in the circumstance.
GROUNDS FOR THE APPLICATION
(1) The Applicants have filed an appeal against part of the said judgment of your Lordship delivered on 07/12/2011.
(2) The Notice of Grounds of Appeal contains arguable and substantial grounds raising recondite issues of law and circumstances exist warranting the grant of this application.
(3) The appeal would be rendered nugatory if this application is refused and the appeal eventually succeeds.
(4) The Applicants’ constitutional rights of appeal will be crippled if this application is refused.
(5) It will be equitable for parties to maintain the status quo pending the determination of the appeal as it is impossible to retract a public apology after publication.
(6) The Applicants will prosecute the appeal diligently and timeously.”?
The application stemmed from the judgment of this court delivered on 07/12/2011. Some time ago, the first appellant, now the first applicant, made a written report to the second appellant (now the second applicant) against the respondents. A resume of the report was that the respondents issued post-dated dud cheques to the first applicant, a licensed money lender, as security for a loan transaction and for threatening to kill the first applicant and to destroy her property. The agents of the second applicant acted on the written report by arresting and detaining the respondents for reasons of investigating the complaints therein. Eventually, the agents of the second applicant released the respondents from the police detention. The respondents were not arraigned in court instead the agents of the second applicant advised amicable settlement of the dispute between the parties.
It appeared that contrary to the advise for peaceful settlement, the respondents sued the applicants, under the fundamental rights procedure, for their unlawful detention and illegal seizure of their chattels (two motor vehicles) in the lower court, Federal High Court, Ilorin, on 09/03/2010 in suit No. FHC/IL/CS/10/2010. The matter was duly heard by the lower court. The lower court, in a judgment, delivered on 02/11/2010, found for the respondents and awarded N200, 000.00 to each of them for their detention and N150,000.00 for the detention of each of their chattels against the first applicant. It, also, ordered her to tender a public apology to the respondents in two local newspapers circulating within Kwara State.
The applicants were, visibly, dissatisfied with that decision. Hence, the applicants appealed against it to this court on seven grounds of appeal filed on 18/11/2011. This court heard the appeal and delivered its judgment on 07/12/2011. This court allowed the appeal in respect of the N200, 000.00 for unlawful detention in part as it halved it to N100, 000.00 in favour of the first and second respondents. The court affirmed the lower court’s decision on the tendering of public apology to the respondents in two local Newspapers circulating in Kwara State.
The applicants were still peeved by that decision of this court. Consequently, on 28/02/2012, they appealed against that verdict to the Supreme Court by dint of a notice of appeal housing four grounds of appeal as manifested in exhibit B, attached to the affidavit in support of the application, and prayed the apex court to allow their appeal. It is sequel to that appeal, that the applicants brought this application, on the same 28/02/2012, for, in the main, a stay of execution of that judgment upon the grounds stated thereon, which had been set out verbatim ac litteratim at the cradle of this ruling.
A litany of processes were filed and exchanged by the parties, regarding the application, in the manner ordained by the law. In support and along with the application, the applicants filed a 14 paragraph affidavit with two annexures, marked as exhibits A and B, attached to it and a written address on the same 28/02/2012. Also, the applicants, on 13/03/2012, filed a 10 paragraph further affidavit with two attachments, marked as exhibits E and F, annexed thereto and a written reply address. They, also, filed a 6 paragraph further and better affidavit in support of the application on 26/03/2012.
On the other hand, the respondents, in opposition to the application, filed a 12 paragraph counter-affidavit alongside a written address on 09/03/2012. The respondents, also, filed a 13- paragraph further counter- affidavit on 15/03/2012.
The application was heard on 27/03/2012. In that regard, the learned counsel for the applicants, Taiye Oniyide, Esq., adopted the applicants’ written address and written reply, filed on 28/02/2012 and 13/03/2012 respectively, as representing his arguments in support of the application. Learned counsel urged the court to grant the application. Similarly, the learned counsel for the respondents, Z.K. Lukeman, Esq., adopted the respondents’ written address, filed on 09/03/2012, as forming his arguments against the application. Learned counsel urged the court to dismiss the application.
In the applicants’ written address, they crafted one issue for determination of the application to wit:
“Whether the applicants are entitled to this application for injunction and stay of execution”.
The respondents, in their written address, identified lone issue for determination of the application viz:
“Whether exceptional circumstance has been disclosed by the applicants to warrant the grant of this application”

I have married together the two sets of issues for determination of the application. The respondents, narrower issue can be properly subsumed under that of the applicants’ more encompassing issue since the two of them mirror themselves. On account of being strikingly identical, I will consider the application on the applicants’ more embracing issue, particularly as they are those groaned by the verdict of this court.

ARGUMENTS ON THE ISSUE
As a prelude, learned counsel for the applicants informed the court, inter alia, that the application was brought pursuant to sections 15 and 17 of the Court of Appeal Act, order 7 rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of the court. Learned counsel, then, submitted that the applicants were entitled to a grant of injunction and stay of execution in the overall interest of Justice. He noted that the principles guiding a court in granting or refusing an application of that nature had become notorious. He referred to the case of Cala Niger V. Lead Merchant Bank Ltd. (2004) 5 NWLR (pt. 867) 575 wherein the court restated the principle that a stay of execution would be granted if an applicant showed special or exceptional circumstance. He reasoned that there was no hard and fast rule as to what constituted special or exceptional circumstances; adding that what constituted it would depend on the peculiar facts and circumstances of each case, placing reliance on the case of NNPC v. BCE (2004) 2 NWLR (Pt. 858) 484 at 497, wherein he reproduced what the court stated as constituting special circumstance.
Learned counsel further submitted that what the court would consider in granting an injunction pending appeal would include: The existence of special circumstances which special circumstances meant a variety of things, for instance, (a) Destruction of the subject-matter of the proceeding. (b) Foisting on the court a situation of complete helplessness. (c) Rendering nugatory any order (s) of the Supreme Court. (d) Generally, providing a situation in which whatever happened to the case or particular, even if the appellant succeeded in the court of appeal there would not return to status quo. In support of that submission, he commended the case of Oyelami v. Mil. Admin, Osun State (1999) 8 NWLR (pt. 613) 45 at 60.
Learned counsel placed further reliance on the case of Odedeyi V. Odedeyi (2000) 3 NWLR (pt. 650) 565 at 659-660 where the court held that special circumstance could, also, mean the following:
(a) The strong and substantial ground of appeal
(b) That the res subject matter of the appeal would be at the risk of destruction if the application was refused.
(c) The res might be altered as to make it irreversible.
(d) If the res was such that the victorious party might be a man who would not be able to refund the money should the appeal be decided against him.
(e) The judicial power would operate oppressively or in its effect cause serious hardship which would be disproportionate to the benefit accruing from the order.
2. The grounds of appeal must be somewhat on a novel point as well as raise substantial legal issues to be determined. (3) That it would be right to put matters in status quo in that it would be inequitable to maintain the status quo or preserve the res if the appeal would have any meaning. He, also, cited the case of Onuzulike V. Commissioner for Special Duties, Anambra State (1990) 7 NWLR (pt. 161) 252. Learned counsel insisted that special circumstances existed to justify the grant of the applicants’ application.
Learned counsel went into specifics and contended that if the application was refused pending the hearing and determination of the appeal already filed, a situation of helplessness would have been foisted if the applicants, eventually, succeeded in that appeal in the Supreme Court. He posited that the notice and grounds of appeal filed and attached to the application as exhibit B were strong and they raised substantial legal issues to be determined. He persisted that the respondents were indebted to the first applicant, which they refused to pay despite several demands, so that if the first applicant paid the monetary judgment as ordered by the court before the appeal would be heard and if it, eventually, succeeded, the respondents would not be able to refund the money. He further persisted that if the application was refused and the monetary judgment paid before the determination of that appeal, the judicial power would have operated oppressively and caused hardship on the applicants. He added that it would be equitable and in the interest of justice to put matters in status quo for the applicants’ appeal to have meaning as anything to the contrary would render it nugatory.
He took the view that the balance of convenience lay in favour of granting the application; noting that it would enable the Supreme Court either to confirm or disaffirm the court’s judgment and in either case the rights of the parties would be peacefully maintained as it was the case prior to the court’s judgment. He cited the case of Adesina v. Arowolo (2004) 6 NWLR (pt. 870) 601 at 608 where the court took into account the pervading social and economic factors in deciding the question of balance of convenience. He stated that the first applicant was a business woman, a licensed money lender, so that tying down her money in a loan, the obligation of which were yet to be fully met by the respondents would have catastrophic effect on the liquidity of her business interests and investments let alone paying the respondents huge sums of money as judgment debt. He urged the court to note that as at January, 2010, the total loan facilities granted to the respondents, together with its accumulated interest, was N24, 730,000.00 which had remained unpaid till date; adding that the first applicant’s business interests and investments were collapsing from the effect of that unpaid debt owed her by the respondents.
Learned counsel argued that that order made against the first applicant to pay damages to the respondent would further worsen the state of economic kwashiorkor into which the debts owed her by the respondents had plunged her business interests and investments. He maintained that the respondents who had not been able to meet their obligations to repay the loan sum owed the first applicant would certainly not be in a position to pay damages that would be awarded in the event that the appeal succeeded upon determination.

He urged the court to hold that the balance of convenience tilted in favour of the applicants in view of the pervading economic factors aforementioned which factors he repeated. He further argued that the application substantially depended in the court’s discretion with its objective to attain substantial justice.
He reasoned that the respondents would lose nothing by a grant of the application as it would enable the Supreme Court to, finally, determine the appeal. Learned counsel urged the court to grant the application.
For the respondents, their learned counsel submitted, per contra, that a successful party to a suit must not be denied the fruit of judgment at the instance of an unsuccessful litigant and for a court to order a stay of execution, temporary denial of a successful party of the fruits of his judgment, the applicant must show that there existed a special or exceptional circumstance to warrant or justify such order. He cited the case of Kabba Multipurpose Co-Operative Union Ltd. V. Irewole Multipurpose Union Ltd. (2000) All NWLR (pt. 500) 622 at 611. He posited that since the law recognized that a successful party to be pamia facie entitled to the prompt enjoyment of the benefit of his judicial success, an applicant to deprive, albeit temporarily, the enjoyment of such success had the legal duty to show such extraordinary or special reasons that aggressively threatened the res of the appeal which dictated a compelling necessity to grant an order for a stay. He placed reliance on the case of Advance Coating Technology Nig. Ltd. V. FBN Plc (2009) All FWLR (Pt. 471) 982 at 991-992. He added that special circumstances though not closed, whatever an applicant considered as a special circumstance must be juxtaposed with the facts that balance of justice obviously weighed in favour of stay.
Learned counsel reminded the court that its judgment, sought to be stayed, involved payment of money and tendering of public apology. He, then, further submitted that where judgment had been entered for the payment of a Sum of money, as in the instant case, and the judgment debtor sought for a stay of execution, his affidavit must state the relevant facts upon which to consider the principles for stay and must ensure that those facts were full and frank, including a complete and accurate account and description of his income. He referred to the case of Ikere L.G. V. Mr. Olumuyiwa Olufemi Auguston Adelusi (2008) All FWLR (Pt. 404) 1534 at 1546 wherein the terms for a grant of a stay of execution of money judgment were held to be: (1) Whether making the applicant satisfy the judgment would make his financial position such that he would not prosecute the appeal (2) Whether it would be difficult to secure the refund of the judgment debt and cost from the respondent if the appeal succeeded for which purpose the financial ability of the respondent would be taken into.
He, then, took the view that since the execution of judgment sought to be stayed involved money, what might constitute special circumstances for the grant in line with the reasoning in Ikere’s case supra”, would be for the applicants to satisfy the court that: (i) Their financial position was such that satisfying judgment would prevent them from the prosecution of the appeal. (ii) It would be difficult for the respondents to refund the judgment sum and cost if the appeal succeeded.

Learned counsel contended that the applicants, by the deposition in the affidavit in support of the application, did not show that making them satisfy the judgment sum would make their financial position such that they would not prosecute the appeal. He noted that paragraph 7 thereof showed that they would prosecute the appeal diligently and timeously; adding that the applicants in effect were financially buoyant to prosecute it. He posited that a careful perusal of the supporting affidavit revealed that no fact (s) showed why the orders in the judgment, sought to be stayed, should not be executed or why the applicants were not in a position to carry them out or what prejudices they would suffer if those orders were obeyed, enforced or executed. He reasoned that instead of those crucial evidence, the applicants went on a voyage of submission on balance of convenience in their written address which had no nexus to the facts in the affidavit in support of the application; maintaining that submission of counsel, no matter how eloquent or brilliantly made, would not serve as substitute to evidence. He placed reliance on the cases of Chief Johnson Emere Nkponwi v. H.R.H. Samuel Oluka Ejire (2009) All FWLR (Pt. 499) 450 at 473; Fashanu v. Adekoya (1974) SC 83. He urged the court to discountenance the submission as it had no foundation in the affidavit.
He further contended that the facts in the affidavit in support of the application were neither full or frank as to disclosure of assets and liabilities as no deposition referenced the account and description of the applicants’ income not to say whether same was full or not. In support of the contention, he relied on the cases of University of Ilorin v. Idowu Oludare (2008) All FWLR (pt. 441) 839 at 862 and West African Examination Council V. The Governing Council of Industrial Training Fund (2009) All FWLR (pt. 453) 1299 at 1316. He urged the court to bind itself by those previous decisions and dismiss the application for want of adequate material/facts to the exercise of its discretion.
Learned counsel argued, contrariwise, that the respondents deposed to fact in paragraphs 4-9 of their counter-affidavit to the effect that they were not distressed, but in active financial yielding business which enabled them to defray the principal loan sum of N7.3 Million and substantial amount of the interest even with their incessant unconstitutional arrest and detention and as such would be able to refund the judgment sum and costs if the applicants’ appeal succeeded. He persisted, on the basis of the above contentions, that no special circumstance had been disclosed by the applicants in that affidavit; a situation fatal to the grant of the application as the court had no business dishing out its discretionary power in their favour.
He went further to argue that the application must fail on the ground that the depositions, in the affidavit in support of the application ran foul of the provision of the Evidence Act and as such not worthy of the court’s usage. He drew the court’s attention to paragraphs 8 (i) – (v) and 9 (a) (h) of the said affidavit which offended he provision of section 115 (2) of the Evidence Act, 2011 as they contained extraneous matter by way of legal argument, conclusion and prayers.

Learned counsel made an alternative submission that in the event that the court would be disposed to granting the application, it should be upon condition to deposit the money adjudged due to the respondents in an interest yielding account or with the registrar of the court within a stipulated period of time. Learned counsel, based on the foregoing submissions, concluded by urging the court to dismiss the application.
On points of law, learned counsel for the applicants submitted that the applicants clearly and convincingly established the terms for a grant of stay of execution of money judgment as highlighted in the case of Ikere Local Govt. v. Olumugiwa Olufemi Auguston Adelusi (supra) cited by the respondents. He referred to the applicants’ further affidavit wherein they showed that they were impecunious as shown in their bank accounts and that the respondents would not be able to refund the judgment debt if the applicant’ appeal succeeded. He posited that the applicants’ demonstration of their intention to prosecute the appeal diligently and timeously could not be taken for financial buoyancy to prosecute it. He maintained that the applicants had disclosed exceptional and special circumstances to justify the grant of the application.
Learned counsel contended that the respondents’ argument that paragraphs B (i) – (v) and 9 (a) – (h) of the affidavit in support of the application offended the provision of section 115 (2) of the Evidence Act, 2011 was erroneous and at variance with the correct position of the law. He explained that where a party pleaded recondite issues of law in a pending appeal, such party would be required, under the law, to state the point of law which he considered to be recondite. He relied on the case of NNPC V. Famfa Oil Ltd. (2009) 12 NWLR (Pt. 1156) 462 at 482 in support of that contention. He maintained that the facts deposed to in paragraph 8 (i)-(v) of that affidavit in support of the application were recondite issues of law which were raised in the applicants’ pending appeal. He added that those facts in that paragraph B (i) – (v) of that affidavit could not, in any way, be deemed to be legal argument, conclusion nor prayers as they merely reproduced the points of law raised in the applicants’ notice of appeal which they believed were recondite issues of law. He placed further reliance on the case of NNPC V. Famfa Oil Ltd. (supra) at 482 to show that those facts were special circumstances which were to co-exist with recondite points of law in line with the dictates of the law. He urged the court to hold that those facts deposed in paragraph 9 (a)-(h) of the said affidavit were in accord with the demands of the law. Learned counsel, finally, urged the court to uphold the applicants’ depositions and submissions and grant the application.

Resolution of the Issue:
Before I delve into the focus of the application, I will first, as a matter of law and necessity, settle a threshold point, raked up by the respondents. The respondents picked quarrel with the applicant’s averment in paragraphs 8 (1) (v) and 9 (a) (h) of the affidavit in support of the application describing them as containing extraneous matters by way of legal arguments, conclusions and prayers contrary to the provision of section 115 (2) of the Evidence Act, 2011.
The depositions in paragraphs 8 (i) (v) and 9 (a) – (h) of the said affidavit, which the respondents launched the vitriolic/terminal attacks against, are reproduced, ipsissima verba, as follows:
“8. The Taiye Oniyide Esq., Counsel in Bayo Ojo & Co. informed me in his office on 24/02/2012 at about 12 noon and I verily believe him that this application has merit because the Appellants/Applicants’ appeal raises recondite issues of law among others as follows:
i. That the Honourable Court based its findings and conclusions on mere speculative assumptions.
ii. That the Honourable Court wrongly substituted its views and descended into the arena of conflict by supplying a missing link to the case of the Respondent.
iii. That the Honourable Court failed to consider and appraise the legal submissions/arguments and evidence which would have assisted the court either for approval or rejection.
iv. That by the decision of the Honourable Court the Appellants have been denied their rights to fair hearing under section 36(1) of the 1999 Constitution.
v. That the Honourable Court put himself in a position of a father Christmas and also exercised his discretion wrongly in his award of damages and Public apology.
9. That Taiye Oniyide. Esq. Counsel in Bayo Ojo & Co. also informed me in his office on 24/02/2012 at about 12 noon and I verily believe him that special circumstances exist to justify the grant of this application by this Honourable Court as follows:
a. That if the application is not granted, it will foist upon the Supreme Court a situation of complete helplessness.
b. That it is impossible to retract a public apology once publication is made.
c. That if the application is not granted, it will render nugatory any order or orders of the Supreme Court.
d. That if the application is not granted, it will provide a situation in which whatever happens to the case or particular, even if the Appellants succeed in the Supreme Court, there would be no return to status quo.
e. That there is a strong and substantial ground of appeal.
f. That if the application is not granted, the judicial power will operate oppressively or in its effect cause serious hardship which is disproportionate to the benefit accruing from the order.
g. That it is right to put matters in status quo in that it will be equitable to maintain the status quo if the appeal is to have any meaning.
h. That it will be better to grant this application in order to await the judgment of the Supreme Court on the appeal.”
The provision of section 115 (2) of the Evidence Act, 2011, which those averments are alleged to have flouted /violated, reads:
“115(2) An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion”.
This provision is a clone of the provision of section 87 of the erstwhile Evidence Act Cap. E 14, Laws of the Federation of Nigeria, 2004, which had fallen for interpretation in a deluge of decided cases. On account of this striking similarity, I will invite one recognized principle of law as an aid to the construction of the extant provision of section 115 (2) of the Evidence Act, 2011. It is this. Where a provision of a statute is in pari materia with another which had been previously interpreted by a competent court the law grants the courts the licence to follow that principle laid down in the previous one and use the decision in the previously interpreted one as the barometer to construe the latter provision that is confronting it for interpretation, see, A.-G., Abia State v. A.-G., Fed. (2005) 12 NWLR (pt. 940) 452; Bakare V. NRC (2007) 17 NWLR (Pt. 1064) 606; Nyame V. FRN (2010). 7 NWLR (Pt. 1193) 344. When armed with this cardinal principle of law, the herculean task of interpreting the provision of section 115 (2) of the Evidence Act 2011, saddled on this court by law, is reduced to the barest minimum.
Now, an affidavit denotes a statement of fact (s) which the maker or deponent swears to be true to the best of his knowledge, information or belief. The facts could be the ones the deponent has personal knowledge of or based on information which he believes to be true, see section 115 (1) of the Evidence Act, 2011. It is trite law that where a deposition in an affidavit runs counter to the prescription of section 115 (2) to the Evidence Act, 2011 in the sense that it consists a legal argument, conclusion or prayer, it must be jettisoned from proceedings in court or no probative value is attached to it, see Orji v. Zaria Ind. Ltd. (1992) 1 NWLR (Pt. 216) 124/(1992)/SCNJ 29; Josien Holding Ltd v. Lornamead Ltd (1995) 1 NWLR (PT. 371) 254/(1995) 1 SCNJ 133.
Against the back drop of the above positions of the law, a stubborn exercise, laden on the court to carry out, is how to discover when a deposition or paragraph of an affidavit desecrates or infracts the provision of section 115(2) of the Evidence Act, 2011. In the case of Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 289, Uwaifo, JSC, Propounded/evolved the litmus test in these illuminating words:
“I think the legal position is clear that in any affidavit used in the court, the law requires, as provided in sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the Paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusion should not be drawn by witness but left for the court to reach.”
See, also, Gen, & Aviation Serv. Ltd. v. Thahal (2004) 10 NWLR (Pt. 880) 50.

In a spirited bid to decipher the valid and invalid depositions in the chastised paragraphs 8 (i) – (v) and 9(a)-(h) of the said affidavit, I have married them with the tenets of the acid and decisive test invented by the apex court in the case of Bamaiyi v. State (supra). I have, also, given a clinical examination to the castigated averments. In my humble view, the depositions, in paragraph 9(b) and (h) of the said affidavit consist of “statements of facts and circumstances” to which the deponent, Babatunde Eleja, deposed to “from information which he believes to be true” in keeping with the sacred provision of section 115(1) of the Evidence Act, 2011. In other words, those depositions fit, squarely, within the four walls of receivable evidence which the law gives a witness the latitude to place before a court in his oral testimony on oath in an attempt to prove or disprove a disputed fact(s).
The other remnants of those averments in the despised paragraphs 8 and 9, id est, 8(i) – (v) and 9(a), (c) – (g), of the said affidavit are world away from statement of facts and circumstances. I will justify this point anon. The depositions in paragraph 8(i),(ii), (iii), (iv) and (v) and 9(f) and (g) of that affidavit are a quintessence of legal arguments which fall within the exclusive domain of learned counsel to canvass before a court for and on behalf of litigants. It does not, by sanction of law; lie in the mouth of the maker of that affidavit, Babatunde Eleja, to factor those legal arguments/ submissions therein in the guise of facts and circumstances. The applicants, unwittingly, admitted this much when most of their contentions were a complete replica of those purported averments. The other averments in paragraphs 9(a), (b), (c), (d) and (e) of that affidavit, wholly, come within the province of finding or conclusion, a monopoly the law has, deservedly, preserved for the court.
Put simply, the deponent, Babatunde Eleja, is disrobed of the right to count in those conclusions, as it were, as facts and circumstances in that affidavit. In the aggregate, Babatunde Eleja’s deposition in paragraphs 8(i), (ii), (iii), (iv) and (v) and 9(a), (c), (g) of that affidavit are, at best, legal submissions and conclusion and they, de jure, constitute an usurpation of the sacrosanct duties of learned counsel and courts respectively vis-a-vis affidavit evidence. In a nutshell, while these latter depositions, seriously, offend the inviolable provision of section 115(2) of the Evidence Act, 2011 which, in turn impinges on their judicial utility and probative value, the other former averments, paragraph 9(b) and (h), are quite in consonance with the law as they are void of any vitiating vices/elements in section 115(2) of the Evidence Act, 2011.

Let me place on record, apace, that the case of NNPC v. Famfa Oil Ltd (supra), on which the applicants placed high premium on the validity of all the depositions in paragraphs 8 and 9 of that affidavit, is not on hand to them.
This is because, in that case, which was, correctly, premised on the principles governing grant of stay of execution, there was no protestation against any affidavits filed by any of the parties. The facts of that case are, completely, distinguishable from this tangential point only. On this score, I will dishonour the inviting invitation of the applicants to employ that case on this preliminary point for wants of facts similarity. Lets it is forgotten, facts are the fountain heads and forerunners of the law so that facts of case must be symmetrical before the application of one to the other in accord with the doctrine of stare decisis, see Abdulhamid v. Akar (2006) 13 NWLR (Pt. 996) 127; Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Obasi Bros. Co Ltd. v. M. B. A. Ltd. (2005) 9 NWLR (Pt. 929) 117.
In the light of the foregoing, I uphold, in part, the objection of the respondents as to the legality of the averments in paragraphs 8(1) – (v) and 9(a) (h) of the said affidavit. In the circumstance, I declare the depositions in paragraphs (8 (i) (v) and 9 (a), (c) (g) of that affidavit as being unwelcome to this application having flagrantly infracted the provision of section 115(2) of the Evidence Act, 2011. Accordingly, I strike them out as unusable averments in this application. I will return to this excision in the fullness of time in this ruling.
Having dispensed with that subsidiary side issue, I proceed to deal with the hub of the application viz: Whether the applicants are entitled to a grant of injunction and stay of execution over the judgment of this court delivered on 07/12/2011. By way of prefatory remarks, the applicants are in line with the law when they prayed the court for a stay of execution and injunctive relief over that judgment. The law gives them the nod to couch their prayer for stay in the manner/form of request for an order of injunction, see Shodeinde v. Reg. Trustees of Ahmadiyyah Movement-In-Islam (1980) 19 NSCC 70 at 80; Kigo (Nig) Ltd v. Holman Brothers (Nig) Ltd (1980) 12 NSCC 204; Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 178/ (1991) 3 LRCN 950/ (1991) 5 NWLR (Pt. 191) 266. Since the prayer for this specie of injunction dovetails with that of stay of execution, the same principles govern them and references to one are references to the other.

In considering an application for a stay of execution, a post-judgment application, the Supreme Court had, in myriads of decided cases, evolved principles that will guide the courts. The paramount ones are:
(a) A court has the unfettered discretion to grant or refuse a stay of execution of judgment, but such discretion must be exercised judicially and judiciously. Here, judicious connotes: proceeding from or showing sound judgment, having or exercising sound judgment and marked by discretion, wisdom and good sense.
(b) A court, in granting or refusing a stay, must take into account the competing right of parties to justice, far from being biased for or against one party.
(c) A successful party is entitled to the fruits of his judgment and must not be deprived of same except in situations recognized by law.
(d) A court has to protect the judgment it has awarded to a party.
(e) A court shall strive to preserve the subject-matter of any litigation before it.
(f) A stay is never used as a substitute for obtaining a judgment which a court has denied a party. These factors, regulating a stay of execution of judgment, have, inter alia, been noted in a volley of judicial authorities, see Ajomale v. Yaduat (No. 2) (supra); Okafor v. Nnaife (1087) 4 NWLR (pt. 64). 129; T. S. A. Ind. Ltd. v. Kema Inv. Ltd. (2006) 2 NWLR (Pt. 964), 300; NNPC v. Famfa Oil Ltd. (2009) 12 NWLR (pt. 1156) 462. I will bear all these principles in mind while attending to the application.

For an applicant, in an application for a stay of execution of judgment, to succeed; the burden is on him, laden on him by law, to establish, to the satisfaction of a court, a special, an exceptional or an unusual circumstance.
In the eyes of the law, a special or exceptional circumstance is: “a peculiar or unique circumstance which is additional to the ordinary state of affairs,” see Nika Fishing v. Lavina Corp (2008) 35 NSCQR 1 at 39, per Tobi, JSC; N.I.W.A v. SPDCN Ltd (2008) 13 NWLR (Pt. 1103) 48. As to what constitute special circumstances; the incisive and dazzling insights made by Coker, JSC, in the case of Vaswani Trading Co. V. Savalakh & Co. (1972) 12 SC 77 at 82, a locus classicus on ingredients of special circumstances, are opposite. His Lordship, succinctly, stated:
“…When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it 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 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.
See, also, Oyelami V. Mil. Admin. Osun State (supra); Onuzulike V. Commissioner for Special Duties, Anambra State (supra); Olunloyo V. Adeniran (2001) 14 NWLR (Pt. 734) 699; Kabba Multipurpose Co-operative Union Ltd V. Irewole Multiple purpose Union Ltd (supra); Advance Coating Technology Nig. Ltd V. F.B.N. Plc (supra).
It appears that special circumstances in relation to application for a stay are not open ended in the sense that one or more may germinate from a particular case depending on its facts, see NNPC V. B.C.E. (supra). In this wise, generally, recondite, arguable or substantial points of law in a ground of appeal and poverty, resulting in the applicant’s inability to prosecute an appeal, have been held to quality as special circumstance to warrant a grant of a stay, see Okafor V. Nnaife (supra)/(1987) 9 10 SC 105; T. S. A. Ind. Ltd V. Kema Inv. Ltd (supra); NNPC V. Famfa Oil Ltd. (supra); Odedeyi V. Odedeyi (supra).

The judgment of this court being sought to be stayed, is, in the main, monetary judgment. In an application for a stay of money judgment, the exceptional circumstances which an applicant has to, additionally, show are: (a) That making him satisfy the judgment will make his financial position such that he will hot prosecute the appeal. (b) That it will be difficult to secure a refund of the judgment debt and cost from a respondent if the appeal succeeds, see Ikere L.G. V. Olumuyiwa Olufemi Auguston Adelusi (supra); NNPC V. Famfa Oil Ltd (supra).
It is incumbent on the applicants to establish one or two of these exceptional circumstances if they must clinch their prayer in the application. The reason is obvious. This application, which is deeply rooted in sections 15 and 17 of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004, and order 7 rule 1 of the Court of Appeal Rules, 2011, is founded in an equitable remedy which, in turn, involves this court’s judicial and judicious exercise of discretion – the right or power of a judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman V. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298 at 318. Being an exercise of discretion, the law mandates the applicants, if they must earn the favourable discretion of this court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a court does not dish or dash out its discretion in vacuo, material facts being, invariably, desiderata for such judicial exercise, see Dongtoe V. Civil Service Commission, Plateau State (2001) 9 NWLR (Pt. 717) 132; Menakaya V. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: Mawa V. NACBCFC Ltd (2007) 7 NWLR (Pt. 1032) 54; Ebe V. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58.
The applicants woke up to that judicial responsibility, presentation of materials for use by this court in the determination of the application, when they, through Mustapha Hamidu, the deponent, averred in paragraphs 6 and 7 of their further affidavit, filed on 13/03/2012, as follows:
“6. That Alhaja Kudirat Ijaiya Ibiyeye, 1st Appellant/Applicant herein also informed me in our office at No. 10, Ahmadu Bello Way, G.R.A. Ilorin on the 12th March, 2012 at about 1.00 p.m. of the following facts and I verily believe her:
(i) That the Respondents are not credit worthy.
(ii) That the Respondents are still indebted to the 1st Appellant, hence they are not capable of refunding the judgment sum in the event that the appeal of the Applicant became successful at the Apex Court.
(iii) That the Appellants/Applicants are ready to prosecute this appeal diligently.
(iv) That the 1st Appellant/Applicant’s business investments are on the verge of collapse and it would be in the interest of justice to grant an injunction and stay of execution of the judgment of this court pending the hearing and determination of the appeal already filed.
(v) That the 1st Applicant/Appellant cannot at the moment afford to pay the judgment sum of the respondents and her inability to pay is due to lack of fund to do so and also the Respondents’ refusal to settle their indebtedness to her among others.
(vi) That the 1st Appellant/Applicant’s present financial position is such that she can neither satisfy the judgment, sum nor prosecute the appeal if made to satisfy the judgment of this Honourable Court.
(vii) That the 1st Appellant/Applicant’s corporate and personal accounts with Access Bank is bereft of sufficient fund. Her Oceanic Bank Account has also been dormant due to lack of fund as a result of which she cannot even print out her statement of account from Oceanic Bank for your Lordship’s perusal/consideration. A copy of her statements of account i.e. corporate and personal accounts with Access Bank dated 12/3/2012 and 13/3/2012 respectively are attached and marked as Exhibits E and F respectively.
(viii) That by Exhibit; E and F, the 1st Appellant/Applicant has only the sum of N2, 910.39 and N7, 548.29 respectively in her accounts with Access Bank Plc which sum cannot pay the judgment sum against her to the Respondents herein pending the determination of the appeal.
(ix) That making the 1st Appellant/Applicant satisfy the judgment sum would make her unable to prosecute the appeal.
7. That Exhibits E and F were not attached to the 1st Appellant/Applicant’s affidavit of 29/2/2012 because they were not ready for collection as at the time of filing this affidavit.”

By the same token, the applicants, via Babatunde Eleja, the deponent, averred in paragraph 4 of their further and better affidavit, filed on 26/03/2012, thus:
4. That Alhaja Kudirat Ijaiya Ibiyeye 1st Appellant/Applicant herein informed me at our office at No. 10, Ahmadu Bello Way, G.R.A. Ilorin on Friday 16/03/2012 at about 12:00 noon of the following facts and I verily believe her.
(i) That the depositions in the Respondents’ Further Counter Affidavit filed on 1/3/2012 are false and do not represent the actual position of things.
(ii) That the 1st Appellant/Applicant cannot satisfy the Judgment sum due to lack of fund to do so.
(iii) That the 1st Appellant/Applicant will not be able to prosecute this appeal if made to, satisfy the judgment of this Honourable Court.
(iv) That the 1st Appellant/Applicant’s statement of account, i.e. corporate and personal accounts with Access Bank Plc. dated 12/3/2012 and 13/3/2012 respectively attached to the Further Affidavit in Support of her motion filed on 13/03/2012 as Exhibits E and F is to the effect that the 1st Appellant/Applicant is indigent to the extent that she can neither satisfy the judgment sum nor prosecute the appeal at the apex court.
(v) That Exhibits E and F referred to in paragraph a (iv) above represents the true and correct position of the Appellant/Applicant’s financial status.
(vi) That the 1st Appellant/Applicant indicated at paragraph 6(vii) of the Further Affidavit in support of Motion filed on 13/3/2012 that she also had an account at Oceanic Bank Plc but that that account has been dormant due to lack of fund.
(vii) That it is not true as deposed in paragraphs 9 and 10 of the Respondents’ Further Counter Affidavit filed on 15/03/2012 that the 1st Appellant/Applicant’s account with Oceanic Bank is still viable or that she deliberately refused to furnish the statement of her said account with Oceanic Bank.
(viii) That a copy of the 1st Appellant/Applicant’s statement of account with Oceanic Bank subsequently obtained to the effect that her account is dormant is attached and marked as Exhibit G.
(ix) That by Exhibit G, the 1st Appellant/Applicant’s account status with Oceanic Bank from 01/01/2011 to 12/03/2012 a period of 15 months is N259.21 credit balance.
(x) That the 1st Appellant/Applicant sought for and deposited N5,000.00 on 12/03/2012 in other (sic) to enable her obtain a copy of her statement of account now before your Lordships as exhibit G for your Lordship’s consideration to the effect that her account with Oceanic Bank is dormant.
(xi) That by Exhibit G, the 1st Appellant/Applicant’s closing balance with Oceanic Bank as at 13/03/2012 is N4,259.21 credit which sum cannot pay the judgment sum against her to the Respondents herein pending the determination of the appeal.
(xii) That making the 1st Appellant/Applicant satisfy the judgment sum would make her unable to prosecute this appeal.”?

I have, in my avowed desire to do justice to this issue, pooled the two sets of depositions together. At the same time, I have given an intimate and holistic reading, with a fine tooth comb, to those expansive averments. In the exercise of that communal examination of those copious averments, I have drawn some inferences, taking sanctuary under the law which gives me the liberty to do so regarding evidence, inclusive of affidavit evidence, see Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421.
The fulcrum of the applicants’ averments, displayed above, is that the first applicant, Alhaja Kudirat Ibiyeye, is poor to discharge the judgment sum of N200,000.00 awarded to the respondents by this court and at once prosecute their appeal to the Supreme Court which was, properly, lodged in the registry of this court on 28/02/2012. In exhibit E, the first applicant’s statement of account, in account number 0100861320 (corporate account owned by Larakud Nigeria Limited), her credit closing balance is the sum of N2, 910.39k as at 29/02/2012. This is a concrete documentary evidence of impecuniosity par excellence. In the first applicant’s statement of account in account number 0100857318, exhibit F, personal account owned and operated by Kudirat Ijaiya Ibiyeye, has a credit closing balance of N2, 548.29k as at 31/01/2011. Indubitably, this is an impregnable documentary evidence of indigency. In another statement of account of the first applicant, account number 0020728407, owned and operated by Kudirat Ijaiya Ibiyeye, the credit closing balance is the sum of N7, 548.29k as at 12/03/2012.
Doubtlessly, this exhibits yet another tangible documentary evidence of poverty. The three accounts are with Access Bank Plc.
The first applicant’s account with Oceanic Bank Plc, as shown in exhibit G, was dormant with the paltry sum of N259.21k credit therein. From exhibit G, the first applicant revived/rejuvenated the comatose account on 12/03/2012 by feeding it with N5, 000.00 and, ultimately, had a credit balance of 4, 259. 21k as at 13/03/2012. By allowing that account to be in commercial fallow for months is an incorruptible material evidence that the first applicant is impoverished; precipitated by unsatisfied debts due to her by people. The first applicant, also, indicated in the averments that her business investments are dwindling and same stand on the brink of an economic precipice. Again, this is a stellar/classic instance of the first applicant being a person without ostensible means of subsistence.
When the paltry amounts of money, in the first applicant’s three red accounts in exhibits E and F, are put/added together, a trifling sum of N17, 266.18k is realized as her gross income. I have placed that sum of N17, 266.18k side by side with the N200, 000.00 awarded against the applicants by this court. It seems clear to me that the first applicant’s total income, placed before this court, is, certainly, infinitesimal in relation to payment of the whopping judgment sum of N200, 000.00. It is indisputable that the first applicant’s negligible income cannot pay the entire or substantial part of the judgment sum.

For a good measure, that pittance, the first applicant’s income of N17, 266.18k, will not be sufficient enough for her to prosecute her appeal to the Supreme Court which must engulf a sum far in excess of that bubble sum. In other words, the first applicant’s small income cannot, by any stretch of economic prudence and management, defray the frightening judgment debt of N200, 000,00 a well as foot the staggering bill of prosecuting her appeal. Put starkly, the first applicant pitiable state of pauperism will disable her from prosecuting her appeal when she discharges the judgment debt.

The pernicious effect of the first applicant’s financial incapacity to prosecute the appeal is not a moot point. The first applicant’s non-induced poverty will, definitely, paralyze and truncate her constitutional right of appeal against this court’s judgment to the Supreme Court. Needless to say that the right of appeal is donated to citizens by the Constitution, the fons et origo of our laws. Being a Constitutional right, the right of appeal, which enures to all citizens of Nigeria, overrides and dominates most other negative principles aimed at foreclosing it, see, E.F.P. Co. Ltd. V. N.D.I.C. (2007) 9 NWLR (Pt. 1039) 276 at 253; Nwana V. F.C.D.A. (2007) 11 NWLR (Pt. 1044)59. This court will not allow the first applicant’s right to appeal its decision to be scuttled or washed away by her indigency. Altogether, the first applicant has amply, demonstrated, by dint of the unscathed or unharmed portions of her affidavits, that she is a man/woman of straw to the extent that her pauperism will bedevil her financial capability to prosecute her appeal and, by extension, put paid to her constitutional right of appeal. It means that the earlier expunction of the averments in paragraphs 8 (i) – (v) and 9(a), (c) (g) of the applicants’ affidavit in support of the application, for their violation of the provision of section 115 (2) of the Evidence Act, 2011, is not inimical or injurious to the applicants’ application.
It is pertinent to remark that, having reached a finding that the first applicant has established that she is not affluent enough to satisfy the judgment debt as well as prosecute her appeal, the question as to whether or not the respondents will have the financial muscle to repay the judgment sum if the applicants’ appeal succeeds in the Supreme Court peters out and becomes otiose. The reason is not farfetched. The respondents’ financial ability to return the judgment debt can only crop up if the first applicant has the wherewithal to pay it to them in the first place. That is to say, the issue of refund by the respondents does not stand on its own, but, heavily, turns on the first applicant’s ability to discharge the judgment sum. It follows, in my view, that where an applicant for a stay of execution is unable to pay a judgment debt and prosecute an appeal for paucity of funds/financial resources, as in the case in hand, a respondent’s/judgment creditor’s capability to return it if the applicant’s appeal pulls through does not crystallize at all. In the result, the respondents’ contention on their willingness and ability to refund the judgment debt on the success of the appeal in the Supreme Court is non sequitur for want of substratum.
In the same vein, the first applicant’s financial weakness afflicts and decimates the respondents’ alternative supplication for conditional stay whereby the adjudged judgment debt is deposited in an interest yielding account or with the registrar of this court, in custodia legis, within a stipulated period of time. The reason is plain. The first applicant has to be financially buoyant to pay the judgment sum and prosecute the appeal first before a conditional stay, solicited by the respondents, will be feasible. The former is a precursor/forerunner to the latter. In short, the respondents’ alternative prayer for a conditional stay is totally, torpedoed by the first applicant’s financial impotence, as it were, and like the earlier point, the respondents’ financial capacity to refund the judgment debt in the event of the appeal succeeding, it has no pedestal to perch on. In sum, I decline to honour the respondents’ alternate invitation to grant a conditional stay of execution of the judgment debt.

All in all, the net consequence of the foregoing x-rayed expositions, done with the aid of judicial authorities, is that the first applicant has proved that she is poor such that she will not pay the judgment debt and prosecute the appeal at the same time; and that same will paralyze her inalienable constitutional right of appeal to the Supreme Court which is allotted to her by the provision of section 233 of the 1999 Constitution, as amended. Suffice to state that these two established considerations, as already dissected above, amply qualify as special or exceptional circumstances in this class of application for stay of execution. Furthermore, the two special circumstances take adequate care of the two arms of the judgment of this court to wit: the monetary judgment of N200, 000.00 and an order to tender public apology rendered in favour of the respondents. It will, therefore, meet the ends of justice, in this matter, to maintain the status quo ante pending the determination of the applicants’ appeal to the Supreme Court. On the premise of the foregoing, I resolve the solitary issue in this application in favour of the applicants
On the whole, given the reasons advanced heretofore, the applicants’ application is imbued with merit. It deserves to be granted to pave way for the applicants to exercise their inviolate constitutional right of appeal to the Supreme Court without any hiccups in it: route thereto. In the circumstances, the application is granted. Accordingly, it is ordered:
(a) That the respondents are restrained, by way of interlocutory injunction, from taking any step or acting in anyway under the judgment of this court, delivered on 07/12/2011, pending the determination of the applicants’ appeal filed against the said judgment.
(b) That all the executory orders in court, the judgment of this court delivered 07/12/2011, namely, the sum of N200, 000.00 and tendering public apology made in favour of the first and second respondents, are unconditionally stayed pending the determination of the applicants’ appeal against them to the Supreme Court.
(c) That parties shall bear their respective costs of prosecuting and defending the successful application.

TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft the ruling just delivered by my learned brother Obande Ogbuinya, JCA in this appeal. His lordship has exhaustively and meticulously dealt with all the live issues that call for determination in this application. I entirely agree with his reasoning and conclusions arrived thereat. I too allow the application in the terms set out in the lead ruling and abide by all the consequential orders therein contained.

IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in advance the erudite Ruling just delivered by my learned brother, Obande Ogbuinya, J.C.A. and I am completely in tandem with his reasoning and conclusion that this Application is meritorious and should therefore be granted and ordered as prayed.
It is now trite and part of our jurisprudential policy that our courts are not in the habit of depriving successful litigants of the fruits of their judgment and are therefore always reticent in granting a stay of execution of the Judgment of a court of competent jurisdiction which is always presumed to be sacrosanct until set aside by an appellate court.
In order for a court therefore, (be it a court of first instance or an appellate court like ours), to deprive the claimants/Respondents, albeit momentarily of the fruits of their victory, in the litigation process, the Applicants/Judgment/creditors, as in this case, must be able to furnish this court with special and exceptional circumstances.
Generally speaking, my Lord has ably articulated and enunciated the basic principles and factors to be taken into consideration in granting or refusing an application for stay of execution of the judgment of this Honourable Court, as prayed by the Respondents/Applicants; and I need not over-flog the point again. However, see the cases of Mobil Oil Ltd. v. Agadiagho (1988) 4 SCNJ 174; Martin v. Nicanner Food Co. Ltd, (1988) 2 NWLR (pt. 74) 75; Ajomale v. Yaduat (No. 2) (2003) FWLR (Pt. 182) 1913 at 1935; Balogun v. Balogun (1969) 1 All NLR 349 at 351; Momah v. VAB Petroleum Incorporated (2000) FWLR (Pt 5) 806 S.C; Ikeja Real Estate Ltd. v. N.B.N. Ltd. (2000) FWLR (Pt 9) 1448 C.A and A.G Anambra State v. Onitsha North Local Government (2001) FWLR (pt. 45) 622.
On whether the Applicants have furnished this Court with Special and exceptional circumstances, my learned brother have also sufficiently and brilliantly dealt with the issue in his characteristic manner. I only have to refer to the following authorities to buttress his position. Thus: See Dr. Dada v. Unilag (1971) UILR 344; Utilgas Nigeria & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S.C; Wilson v. Church (No. 2) 1879 12 (H.d 458 and Iriri v. Erharhobare (1979) 3 L.R.N 261; Vicent v. Xtodeus (1993) 6 SCNJ (Pt. 11) 283; Kigo (Nig) Ltd; v. Holman Bros. (Nig) Ltd, (1980) 5-7 SC, 60 and Fatoyinbo v. Osadenyi (2002) 5 SCNJ 166 at 174.
Commenting specifically on the nature of the judgment sought to be stayed which is monetary in nature, see Lawrence Ogboeju Ebegbuna v. J. O. Ebegbuna (1974) 3 W.S.C.A. 23; Nwajekwu Emefisi & ors v. Mbanugwo & Ors (1970-71) 1 ECSLR 100, Lijadu v. Lijadu (1991) 1 NWLR 627 at 643; Okafor v. Nnaife (1987) 4 NWLR 139; Nwabueze v. Nwosu (1988) 4 NWLR 257 (S.C).

I must emphasize that in recent times the Courts have held that the mere assertion by the Applicant that, if the judgment-debt is satisfied he cannot successively prosecute the appeal is not enough to warrant the grant of his application for stay of execution, so also will his assertion on the enormity and substantiality of the debt not constitute special circumstance for the grant of his application. In Anyaogu & Ors. v. Our Line Limited (1993) 4 NWLR (Pt. 289) 607; Ugwu & Ors. v. Ogbuzuru & 3 Ors. (1973) 3 ECSLR (Pt. 11) 253; Abubakar v. Ali (1999) 1 NWLR (Pt. 588) 613 C.A. University of Ilorin v. Akinola (2007) All FWLR (Pt 372) 1844 C.A; Mobil Producing Nig. Unlimited v. Monokpono (2001) FWLR (Pt. 49) 1516 and Governor of Oyo State v. Akinyemi (2002) FWLR (Pt. 120) 1761; it was variously held that for a party to convince the Court to grant a stay of execution on ground of his financial disability to satisfy a monetary debt, he must disclose the sources of his income with the utmost candour and also the magnitude of his liabilities. See Unilorin v. Adesina (No. 1) (supra) at pages 727-728; and also Oladimeji Ise-Oluwa Ltd, v. N.D. Ltd. (2001) 18 WRN 28 at 36-32 per Adekeye JCA (as he then was); Ikere Local Government v. Adelusi (2008) All FWLR (Pt 404) 1534 Per Abdullahi, JCA; Okonkwo v. Nyamoko (2007) All FWLR (Pt. 365) 608 and Odedeyi v. Odedeyi (2000) FWLR (Pt. 3) 489.”
In this case, the 1st Applicant truly in the words of my Lord Ogbuinya, JCA; woke up to that judicial responsibility by disclosing the sources of his income with the utmost candour and also the magnitude of her liabilities to the Court when she deposed to paragraphs 6 and 7 of her Further Affidavit of 13th March, 2012, and annexing her Statements of Accounts from Access Bank and Oceanic Bank as Exhibits E and F. In response to the Further Counter-Affidavit of the Respondents she also deposed to a Further and Better Affidavit and annexed Exhibit G thereto which is the balance of funds in her account with Oceanic Bank as at 13th March, 2012.
I agree therefore that, the Applicant had ably demonstrated that if compelled to satisfy the judgment of this Court without an order of stay of execution, she will be deprived of her constitutional right to appeal against the judgment of this Honourable Court. Accordingly, upon a juxtaposition of the competing rights of the Appellant/Applicant and the Respondents in this case; she has been able to furnish us with special and exceptional circumstances warranting the judicial and judicious exercise of our discretion in her favour.
For these and the more elaborate reasons advanced by my learned brother in his lead Ruling, I also grant this Application for being meritorious and abide by the order as to costs as made in the lead Ruling.

Appearances

Taiye Oniyide, Esq. (With him, B. Eleja, Esq)For Appellant

AND

Z. K. Lukuman, Esq.For Respondent