ALHAJI MUFUTAU SERIKI & ORS v. EMMANUEL ADESUMBO ADEPEGBA & ANOR
(2018)LCN/11816(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/L/256/2016(R)
RATIO
COURT AND PROCEDURE: APPLICATION FOR STAY OF EXECUTION
“The application for a stay of execution of the judgment of the Court below is therefore premature vide Mobil oil (Nig.) Ltd. v. Agadaigho (1988) 1 N.S.C.C. 777 at 786 – 787 thus –
“It is true that there was no appeal by the Defendant to the Court of Appeal when his application was heard by the Court. The power to grant a stay of execution is expressly conferred on the Court of Appeal by Section 18 of the Court of Appeal Act, 1976 (now Section 17) which provides :
“18. An appeal under this Part shall not operate as a stay of execution but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court.”” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI MUFUTAU SERIKI
2. SIKIRU SERIKI
3. JIMOH SERIKI
4. MRS. AMAO
5. ALHAJA AYOKA AJIBONA
6. SAYIDI AYOKA AJIBA
7. ALHAJI KASUMU Appellant(s)
AND
1. EMMANUEL ADESUMBO ADEPEGBA
2. OMOWUNMI TOKUNBO Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling):
This is a motion on notice praying for-
1. AN ORDER of this Honourable Court granting enlargement of time within which the Appellants/Applicants may apply for leave to appeal the judgment of Hon. Justice F.O. Atilade (Mrs.) of the High Court of Lagos state, Lagos Division delivered on the 20th day of December, 2012 in suit Number ID/482/1989.
2. ORDER of this Honourable Court granting leave to the Appellants/Applicants to appeal against the judgment of the Honourable Court delivered against them.
3. ORDER of this Honourable Court granting enlargement of time within which the Appellants/Applicants may file their Notice and Grounds of Appeal against the said ruling and in terms of the Proposed notice of Appeal attached herewith;
4. AN ORDER of this Honourable Court staying the Execution of the judgment delivered in respect of these parties by the Court below on the 20th day of December, 2012 by the HON. JUSTICE O. O. ATILADE pending the determination of the Appellants’ appeal.
AND FOR SUCH FURTHER or other orders as the Honourable Court may deem fit to make in the circumstances of this case.
The grounds upon which the application is based are stated in the motion paper as follows :
1. On the 20th day of December, 2012, the Court below per Coram Hon. Justice O. O. ATILADE, delivered its judgment in respect of the subject matter of this suit between the parties before this Honourable Court in favour of the Respondent.
2. On the 3rd day of January, 2013, the Appellants/Applicants herein caused to be filed on their behalf a motion for leave to appeal and motion for stay of execution of the said judgment.
3. That a notice of appeal dated the 3rd day of January, 2013 was also filed along side with the motion seeking for leave to appeal and for stay of execution of the judgment.
4. That on the 9th day of July, 2013 the motion dated the 3rd day of January, 2013 was heard and same was refused by the Honourable Court.
5. That the time frame allotted by the Rules of this Honourable Court for the filing, compilation and transmission of the record of appeal has elapsed.
6. It is not out of disregard that the Appellants/Applicants delayed in filing this application, rather they just briefed our law firm to take over this suit at the appeal stage for them and we only recently traced the stage of the case at the Court below.
7. Flowing from the proceeding paragraphs, it is paramount to bring this application for stay so as to preserve the res so as not to render nugatory the success that will be gotten on appeal.
8. The notice of appeal contains arguable grounds of law and the chance of success at the appeal stage for the Appellants is high.
9. That it will be in the interest of fairness and justice to grant this motion as the Appellants are ready to diligently prosecute the appeal.
The affidavit supporting the motion on notice deposed as follows –
I, OGECHUKWU NNAMANI (MISS), Female, Christian, Nigeria Citizen, and Legal Practitioner of 19, Military Street (3rd Floor), Onikan, Lagos, do make oath and state as follows:
1. That I am a counsel in the law firm of PACLETUS LEGAL CONSULT, solicitors to the Appellants/Applicants herein, by virtue of which I am seized of the facts, deposed herein.
2. That I have the consent and authority of both my employer and that of the Appellants/Applicants to depose to this affidavit.
3. On the 20th day of December, 2012, the Court below per Coram Hon. JUSTICE O. O. ATILADE, delivered its judgment in respect of the subject matter of this suit between the parties before this Honourable Court in favour of the Respondent. A copy of the said judgment is hereby attached and marked Exhibit” A”
4. On the 3rd day of January, 2013, the Appellants/Applicants herein caused to be filed on their behalf a motion for leave to appeal and motion for stay of execution of the said judgment.
5. That a notice of appeal dated the 3 day of January, 2013 was also filed along side with the motion seeking for leave to appeal and for stay of execution of the judgment.
6. That on the 9th day of July, 2013 the motion dated the 3rd day of January, 2013 was heard and same was refused by the Honourable Court. Attached and marked Exhibit “B” is a copy of the said ruling refusing the motion for stay filed by Appellants/Applicants.
7. That it is now paramount that the Appellants/Applicants approach this Honourable Court for the grant of the prayers contained in their motion paper.
8. That the time frame allotted by the Rules of this Honourable Court for the filing, compilation and transmission of the record of appeal has elapsed.
9. It is not out of disregard that the Appellants/Applicants delayed in filing this application, rather they just briefed our law firm to take over this suit at the appeal state for them and we only recently traced the stage of the case at the Court below.
10. Following from the proceeding paragraphs, it is paramount to bring this application for stay so as to preserve the res and not to render nugatory the success that will be gotten on appeal.
11. The notice of appeal contains arguable grounds of law and the chance of success at the appeal stage for the Appellants is high.
12. That it will be in the interest of fairness and justice to grant this motion as the Appellants are ready to diligently prosecute the appeal.
13. That it will be in the interest of justice of this application.
14. That the Respondent will not be prejudiced in anyway if this application is granted.
15. That I swear to this affidavit bonafide and in accordance with the oaths law.
The respondents opposed the motion with a counter affidavit with these deposition :
I, OLUCHI ONU (MISS.), Female, Christian, Nigerian Citizen of Number 76, Adeniyi Jones Ikeja, Lagos, do hereby make oath and state as follows:
1. That I am the Chambers Manager in the Law firm of Awokoya, Awokoya & Co., Counsel to the Respondents to the Appeal herein, and I have the consent and authority of the said Respondents and that of my employers to depose to this affidavit for and on their behalf.
2. That I have been informed by the Respondents who have read and understood the application foe enlargement of time to appeal dated the 23rd day of May, 2016 and I verily believe them that:
a. Judgment in the above mentioned matter was delivered in favour of the Respondents on the 20th day of December, 2012 by the Honourable Justice Atinuke Atilade.
b. Thereafter the Defendants/Applicants filed a Purported Notice of Appeal dated the 3rd day of January, 2013, against the Judgment of the Honourable Justice Atinuke Atilade.
c. Counsel to the Respondents as at the time judgment was delivered was one Chief Oluwole O. Solanke Esq., of Number 21, Oritse Street, Off Awolowo Way, Ikeja, Lagos, State.
d. The above mentioned counsel has since passed on and our firm was thereafter briefed.
e. Upon being briefed by the Respondents herein, we immediately responded by filing a Motion on Notice praying the Honourable Court to dismiss the Appeal filed by the Defendants/Applicants dated the 4th day of November, 2014 for want of diligent prosecution.
f. That on the 14th day of March, 2016 when this matter came up before the Honourable Court, the Court drew the attention of counsels in the matter, that having gone through the processes before them, that there was no appeal filed before the Court and same struck out by the Court.
g. That the Respondents counsels were however surprised to be served with (2) two different applications on the 24th day of May, 2016 dated the 23rd day of May, 2016.
h. That the said applications are a ploy to further waste the time of both the honorable Court and the respondents, and render the judgment nugatory, and to frustrate the respondents of reaping the fruit of their judgment.
i. That it is now more than 4 (four) years running, since the Appeal has been recently filed, and yet to be heard by the honorable Court nor regularizing their position before the Court in accordance with the rules of this Honourable Court.
j. That the Appellants are still in position of the “RES” in questions, and as it is there have nothing to lose, while the judgment creditors are still awaiting to reap the fruit of their judgment.
k. The matter is over Twenty eight (28) years of age and still counting, since 1989, when it was instituted, and still pending.
3. That it will be in the interest of fairness and justice to dismiss the applicant’s application as it is incompetent and a gross abuse of this Honourable Courts process
4. That I swear to the Counter Affidavit believing same to be true and in accordance with the Oaths Act.
The written address in support of the motion on notice relied on Order 7 Rules 1, 2, 3, 4, 7 and 10 of the Court of Appeal Rules 2011, Section 23 of the Sheriffs and Civil Process Act Cap 56 Laws of the Federation (LFN) 2004 and the inherent jurisdiction of the Court together with the cases of CBN v. Ahmed (2001) 11 NWLR (pt. 724) 369 at 392 – 393, NACB v. Ozoemelam (2004) W.R.N. 149 at 164, Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145, Titilope v. Adeyemi (1992) 8 NWLR (pt. 262) (no pagination), Ibodo v. Enarofia (1980) 5 – 7 SC 42 and Olunloyo v. Adeniran (2001) 14 NWLR (pt. 734) 699 at 709 – 710 to urge that the applicants having adduced good and substantial reasons explaining the delay and the proposed notice of appeal with grounds of appeal showing an arguable appeal, and also, the res of the appeal being in danger of destruction before the appeal may be heard the Court should use its discretionary powers judiciously and judicially in granting the application in terms of the motion paper.
The written address of the respondents in opposition to the motion on notice contended that the applicants did not provide materials explaining the delay in appealing within time thus not supplying good and substantial reasons for the delay in question which is up to four years and that the application for a stay of execution of the judgment had earlier been refused by the Court below but the applicants did not file their application for a stay in this Court within fifteen days making the prayer for a stay of execution incompetent, more so materials were not furnished by applicants to enable the Court exercise the discretion to grant the application which should be dismissed vide Williams v. Hope Rising Voluntary Society (1982) 2 SC 145, Oruche v. C.O.P. (1997) 4 NWLR (pt. 497) 6, Kotoye v. Saraki (1995) 5 NWLR (pt. 395) 256, University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156, Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (pt. 77) 383, General Oil Ltd. v. Oduntan (1990) 7 NWLR (pt. 163) 423, Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (pt. 387) 20 at 26, 7-Up Bottling Co. Ltd. v. Abiola and Sons (Nig.) Ltd. (1995) 3 NWLR (pt. 383) 257, Labaran v. Okoye (1995) 4 NWLR (pt. 389) 303, Momah v. Vab Petroleum Inc. (2000) 4 NWLR (pt. 645) 534 at 553 – 554, 557 – 558, Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (pt. 412) 129 at 148 and Order 6 Rule 3 of the Court of Appeal Rules 2016 (the Rules of the Court).
Paragraph 3 of the affidavit in support of the application (supra) refers to a certified true copy of the judgment of the Court below as Exhibit A. I have seen a copy of the judgment. It is from a final decision of the High Court of Justice of Lagos State (the Court below) in a civil action involving land dispute sitting at first instance.
By Section 241 (1) (a) of the 1999 Constitution :
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
Prayers 1 and 2 (supra) of the motion paper praying for enlargement of time to seek leave to appeal and for leave to appeal respectively are accordingly, otiose, unnecessary, incompetent and are hereby struck out.
Prayer 4 (supra) is for a stay of execution of the judgment of the Court below. As rightly indicated by the respondent, an earlier application for a stay of execution of the judgment of the Court below was refused by that Court in a ruling to that effect contained in a copy thereof attached to the motion paper as Exhibit B. the ruling was delivered on 09.07.13. The present motion was filed on 23.05.16. Order 6 Rule 3 of the Rules of the Court stipulates that :
”Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal.”
The present application was made over two years from the date of its refusal by the Court below. There is no explanation in the affidavit in support of the application for the delay in applying for an order of stay of execution of the judgment of the Court below. The prayer for a stay of execution is on that basis incompetent.
Moreover, the applicants are yet to file notice of appeal in the case. The application for a stay of execution of the judgment of the Court below is therefore premature vide Mobil oil (Nig.) Ltd. v. Agadaigho (1988) 1 N.S.C.C. 777 at 786 – 787 thus –
“It is true that there was no appeal by the Defendant to the Court of Appeal when his application was heard by the Court.
The power to grant a stay of execution is expressly conferred on the Court of Appeal by Section 18 of the Court of Appeal Act, 1976 (now Section 17) which provides :
“18. An appeal under this Part shall not operate as a stay of execution but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court.”
These provisions are word for word the same as those of Section 24 of the Supreme Court Act, 1960 applicable to this Court. In interpreting the provisions of Section 24, this Court had held in a number of cases that before an application to it for stay of execution can be competent an appeal from the decision sought to be stayed must first of all be filed by the party applying for the stay of execution –
P.O.P. Martins v. Nicannar Food Co. Ltd. & Anor. S.C. 203/1986 (1988) 2 N.W.L.R. (Pt.74) p.75 judgment delivered on the 25th March, 1988.
This construction of Section 24 applies also to the provisions of Section 18 of the Court of Appeal Act, 1976 since it is in pari materia with the former – See University of Lagos v. Olaniyan, (supra) at pp.167, 169, 170 and 174.
It therefore follows that the Court of Appeal was in error to grant the application for stay of execution when there was no
appeal pending before it.”
Prayer 4 (supra) for a stay of execution of the judgment of the Court below is thus premature and is hereby struck out on ground of incompetence.
The extant prayer is for enlargement of time to appeal – prayer 3 of the motion paper. The twin requirements of the prayer are stated in Order 6 Rule 9 (2) of the Rules of the Court thus :
‘Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.’
See also Nigerian Laboratory Corporation and Anor. v. Pacific Merchant Bank Ltd. (2013) 8 W.R.N. 1 at 19 thus –
”Thus, the fundamental requirements as per the above provisions are two:
(a) Good and substantial reasons for failure to appeal within the period prescribed, and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.”
These two requirements are interwoven such that they must co-exist. If one is satisfied and the other is not, then the whole application will collapse. See generally Doherty v. Doherty (1964) 1 All NLR 299; (1964) NMLR 144; (1964) LLR 226; (1964) 3 NSCC 213, Ibodo & Ors. v. Enarofi & Ors. (1980) 5 ? 7 S.C. 42; (1980) 12 NSCC 196 Mobil Oil Ltd. v. Agadaigho (1988) 4 S.C. 178; (1988) 19 NSCC (pt. 1) 777, Okere v. Nlem (1992) 4 NWLR (pt. 234) 132, Balogun v. Afoloju (1994) 7 NWLR (Pt. 355) 206, Okwelume v. Anoliefo (1996) 1 NWLR (Pt. 425) 468, Federal Housing Authority v. Abosede (1998) 1 SCNJ 133.
The proposed notice of appeal is attached to the motion paper as Exhibit C. It has six grounds of appeal. The said grounds of appeal appear on the surface arguable. One of the twin prayers for enlargement of time to appeal has therefore been satisfied by the applicants.
The second requirement is ‘good and substantial reasons.’
Something is said to be ‘good’ if it is of high quality or an acceptable standard, while something is said to be ‘substantial’ if it is of value or importance or considerable vide Oxford Advanced Learner’s Dictionary 7th Edition pages 642 and 1476, respectively. It follows that the reason(s) for delay should meet the parameters (supra) for an application for enlargement of time to appeal to succeed.
Paragraphs 3 – 9 of the affidavit in support of the application (supra) contain the reasons for delay to the effect that after the applicants attempted to appeal on 03.01.13, and the application for leave to appeal was refused by the Court below on 09.07.13, the applicants briefed counsel to file the application for enlargement of time to appeal which was filed on 23.05.16, close to three years interval. The affidavit evidence leaves material facts on the time the applicants briefed counsel and why it took counsel time to process the brief as well as the interest and vigilance shown by the applicants to keep abreast of the progress of the brief vide Nigerian Laboratory Corporation and Anor. v. Pacific Merchant Bank Ltd. (supra), Ngere (supra).
These gaps do not make the reason for delay good and substantial. Once a judgment is entered and an aggrieved party is out of time in appealing against it the delay should be accounted for in a satisfactory manner by good and substantial reasons. Counsel did not proffer reason(s) for counsel?s blame for not appealing within time. See Obeya v. First Bank Plc. (2012) ALL FWLR (pt. 636) 544.
Agreed the primary objective is to do justice vide Olatubosun v. Texaco (Nig.) Plc (2012) 44 WRN 1 at 13. But in an application of this nature which requires the judicious and judicial exercise of discretion, it should not be seen counsel assumed responsibility merely to save his client and have the application granted on the presumed basis of fault of counsel. The matter is better put in Obeya (supra) at 556 and 558 ? 559 where the Court per the lead judgment prepared by Rhodes ? Vivour, J.C.A., (now J.S.C.), held inter alia thus :
”For an application for extension of time to succeed, the applicant must show:
(a) Good and substantial reasons for failure to appeal within the prescribed period; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
Both (a) and (b) must co-exist before the application can be granted.
This is a discretion which must be exercised judiciously. That is to say, the judge must consider (a) and (b) and not act as he likes, (a) and (b) are the requirements to be considered. Any action short of that, the judge would be said to have acted arbitrarily.
In (a) there must be a detailed explanation why the applicant was unable to appeal within the time
… I am also of the view that after a litigant briefs counsel to handle his case he should not go to sleep, rather he should be vigilant and keep himself abreast of the progress of his case.(My emphasis).
See further National Inland Waterways Authority v. The Shell Petroleum Development Company of Nigeria Ltd. (2008) 13 NWLR (pt. 1103) 48 at 66 – 67, where it was emphasized that if it is the fault of counsel, the fault should be so specified in the affidavit which would be excusable, but that if it is a factual blunder, the party, as owner of the facts of the case, must accept full responsibility and not pass the buck to counsel. Being a discretionary remedy where no excuse is offered no indulgence will be given vide Williams v. Hope Rising Voluntary Funds Society (1982) 13 NSCC 36.
The length of delay becomes material where there are no good and substantial reasons for the delay vide Ikenta Best (Nig.) Ltd. v. A. – G., Rivers State (2008) 6 NWLR (pt. 1084) 612 at 649 following Ojora v. Bakare (1976) 1 S.C. 47 at 52. In this case, the length of delay of over two years is in the circumstances of the case inordinate.
Accordingly, I conclude that prayers 1, 2 and 4 (supra) in the motion paper are incompetent and are hereby struck out while prayer 3 thereof is not made out for lacking in materials showing good and substantial reasons for delay in appealing which prayer is hereby dismissed for lacking in merit vide F.H.A. v. Abosede (1998) 2 NWLR (pt. 537) 177, Nigerian Laboratory Corporation and Anor. (supra). The applicants shall pay N100, 000 costs to the respondents.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead Ruling delivered by my learned brother Joseph Sagbaor Ikyegh, JCA, I agree that the application is unmeritorious and join him in dismissing it in terms of the lead Ruling.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the draft of the ruling just delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA and I am in complete agreement with how the application was resolved. I have nothing to add.
I too strike out prayers 1, 2 and 4, prayer 3 is dismissed for lacking in merit. I abide by the order on cost.
Appearances:
O. Nnamani, Esq.For Appellant(s)
Mr. D. AwokoyaFor Respondent(s)
