In The Court of Appeal of Nigeria

On Thursday, the 2nd day of June, 2005




IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

MARY U. PETER ODILI   Justice of The Court of Appeal of Nigeria

OLABODE RHODES-VIVOUR   Justice of The Court of Appeal of Nigeria







ODILI, J.C.A. (Delivering the Lead Ruling): This is a ruling that arose on the 26/5/05 when the learned SAN, C.O.I. Joseph made in oral application asking for the payment of economic rents in view of the perceived suspension of hearing the application of the appellant/applicant’s motion for stay of execution of the judgment of High Court of the Federal Capital Territory per I. U. Bello, J. in Suit No. FCT/HC/CV/182/2001 dated 16th February, 2005.
Briefly, the facts are that the respondent being plaintiff had obtained a judgment in her favour in the court below against the appellant being the defendant at that trial:
The appellant being aggrieved appealed to this court and further filed a stay of execution of the said judgment pending the determination of the said appeal. Earlier and precisely on the 22nd February, 2005 the appellant/applicant had filed a motion for stay of execution of the said judgment before the court of trial and that motion was not taken at the lower court on the ground that appeal before this court had been entered.
On the 26th May, 2005 when the motion for stay before this court was to be taken, the learned counsel for the appellant/applicant, Mrs. Olabisi O. Shoyebo, said that in view of the fact that all the briefs have been filed, she would be applying for a date for hearing of the appeal so that her motion for stay of execution of 15th March, 2005 would no longer be taken.
Mr. Joseph (SAN) in reaction therefore stated that while not having a contrary view that the court set down a hearing date for the appeal, he saw that the purport of the appellant’s submission is to suspend the application for stay. He submitted that as there is no challenge by way of further affidavit on the counter affidavit of the respondent, the economic rents, the justice of the suspension of hearing the application demands that the respondent who is the adjudged owner of the property in dispute be compensated because of the suspension of the hearing of the application which is coterminous with the suspension of the realisation of the fruit of the judgment of the lower court. He said he was equally considering the heavy schedule of this court in making the application. He urged the court to order the respective counsel address on the continued stay or occupation of the property in dispute by the appellant/applicant until the final determination of the appeal. He referred to Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266 at 290 – 294 and Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) p. 129.
In reply, Mrs Shoyebo said they would not concede to this application of payment of the economic rents since it is usual practice of this court to go into the appeal proper since the briefs had been filed rather than pursuing interlocutory applications. She said the application for stay had not yet been moved therefore it is appropriate to take a paragraph in the affidavit without considering all the facts in the entire affidavit as the basis. That there was no order from the records of the lower court granting economic rents and so the application of respondent’s counsel is misconceived and would not serve the interest of justice.
In reply on point of law, Mr. Joseph (SAN) said it is trite law that since his application derives from appellant/applicant’s application, in determining what would be in the interest of justice the court cannot shut its eyes against the records placed before the court which includes the fact that appellant is receiving rents as at now.
Those are the issues in contest between the parties and for clarity once again I would state that the appeal before court is ripe for hearing. There is of course, the motion for stay of execution of the judgment of the lower court ready also for hearing. The motion is supported by an affidavit and there is a counter affidavit of the respondent. It is at this stage that this difference of opinion as it were, has arisen for which this court is to decide one way or another.
The Learned Senior Advocate had impressed on the court the fact of the hardship the respondent would suffer so long as the appeal subsists and the need for the court’s intervention at this point. I agree that it will work considerable hardship in land cases where a party adjudged a trespasser in an application for stay pending appeal, is allowed to continue in his trespass during that pendency. Simply because his grounds of appeal contain an arguable point of law. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 137. Furthermore, it is too much to state that a court of justice should protect a deliberate tortuous act of trespass simply because a party has filed an appeal. See Ajomale v. Yaduat (NO.2) (1991) 5 NWLR (Pt. 191) 266 at 292 paras A-D.
Once a person is adjudged a trespasser it is only proper he be asked to cease that act of trespass if there is prayer to that effect. See H. Ajomale v. Yaduat (No.2) (supra) at 295 para B.
Those cases cannot apply here, the situation not being arguments over the stay of execution of motion which is still pending.
Having considered the application of Mr. Joseph (SAN) of the respondent and the response by Mrs. Shoyebo of the applicant/applicant and the background of the application it is clearing the less said at this ruling, the better. This is because the only way forward as I see it is to hear the motion for stay of execution of the judgment filed by the appellant and a ruling either way given.
Anything done outside of that would clearly be prejudicial or jeopardize the justice of the case. It is for that reason that it is best for the court and the parties that I say no more.
The Motion for stay of execution is accordingly fixed for hearing on the 14th day of June, 2005.
I make no order as to costs.

I. T. MUHAMMAD, J.C.A. I read in advance the ruling just delivered by my learned brother Odili, JCA. I agree with her reasoning and conclusion. I abide by consequential orders made in the leading ruling including order as to costs.

RHODES- VIVOUR, J.C.A. I have had the advantage of reading in draft the ruling of my learned brother Mary U. P. Odili, J.C.A. I agree with her reasoning and conclusion.
The need to hear the application for stay of execution notwithstanding the fact that the appeal is ripe for hearing is necessary in view of the complaint by learned counsel for the respondent of hardship his client would suffer if the appellant, an adjudged trespasser is allowed to remain on the land unhindered or with no sanction whatsoever.
I abide by the directive that the motion for stay of execution shall be heard.
Application refused.



Olabisi O. Shoyebo[Mrs]For Appellant



  1. O. I. Joseph, SAN (with him, Ayo Omofaye [Miss])For Respondent


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