BENEDICT UDEORAH & ORS V. OKWUNDU NWAKONOBI & ORS
(1999)LCN/0606(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of November, 1999
CA/E/22m/99
Before Their Lordships
NIKI TOBI Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
Between
- BENEDICT UDEORAH
2. IGWEZE AKUNNA
3. HENRY ANONYE CHIGBO
4. FESTUS CHIRA
S. UDOLISA NWOKAFOR
(For themselves and on behalf of the People of OsiIe Ogbunike)
6. CHIEF OSITADIMMA UMENYIORA Appellant(s)
AND
- OKWUNDU NWAKONOBI
2. NWEKE IGWEAGU
3. ROWLAND NWABUDE (For themselves and on behalf of the People of Ezi Umunya Village, Umunya) Respondent(s)
RATIO
THE DUTY OF AN APPLICANT WHO WANTS A STAY OF EXECUTION OF JUDGEMENT
An applicant who wants a stay of execution of judgment should ensure that the relevant, duly certified copy of the judgment is presented before the court for due consideration of his application. An applicant, who fails to present the duly certified judgment before the court, does so to his own peril and/or chagrin. An uncertified judgment cannot be perused: for it’s authenticity is in doubt. And so, the grounds of appeal cannot be cross-checked vis-a-vis the judgment complained against. Yet, the applicant’s desire to have a stay of execution pending the determination of their pending appeal. The lapse has created a yawning gap which remains uncovered.
The law relating to the grant of an order of stay of execution pending determination of appeal is now well settled by deciding authorities. In Vaswani Trading Company v. Savalakh & Co. (1972) N.S.C.C. 692, it was held that a court of appeal should not grant a stay of execution unless there are special circumstances for doing so. This means 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 of 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. The following authorities are also in point- Lawrence Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129; (1987) 1 All NLR 373 at 377 – 378; Williams v. Busari (1973) 3 E.C.S.L.R. 518 at 520; Nigeria Civil Service Union v. Essien (1985) 3 NWLR (Pt.12) 306 at 316 – 317. PER FABIYI, J.C.A.
WHETHER OR NOT GROUNDS WHICH CAN BE RELATED TO A JUDGMENT MUST CONTAIN SUBSTANTIAL POINTS OF LAW
Grounds of appeal which can be related to the judgment must contain substantial and arguable points of law. See Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 at 77. PER FABIYI, J.C.A.
FABIYI, J.C.A.: (Delivering the Lead Ruling): Vide the motion on notice dated 5-3-99 and filed on 11-3-99, the applicants prayed for:-
“1. AN ORDER for leave of this honourable court to substitute, (1) Oguno Isiuzo (2) Nwoye Onyemutagui (3) Nwankwo Adigwe (4) Obiora Iloka for the 2nd, 3rd, 4th and 5th Defendants/Appellants as representatives of the people of Osile Ogbunike in this appeal.
2. AN ORDER for stay of execution of the judgment of the High Court of Otuocha delivered by the Honourable Justice P. I. Amaizu (as he then was) on the 25th day of September, 1998.”
The application was supported by a 15 paragraph affidavit deposed to by Mrs Genevieve Peter-Okoye, learned counsel for the applicants. A copy of the judgment of the Trial court, which was not duly certified, is Exhibit ‘A’. Amended notice of appeal with amended grounds of appeal is Exhibit -B”. A counter-affidavit of 12 paragraphs, deposed to by Mr. P.C. Ikebuase, a legal practitioner in the chambers of G. E. Ezeuko, Esq. SAN, counsel to the Plaintiffs/Respondents, was filed in opposition to the application. It is instructive to note here that Mrs. G. Peter-Okoye further filed a 12 paragraph reply to the counter-affidavit.
On 23-9-99, Mr. G. E. Ezeuko, SAN, Learned Senior Counsel for the Respondents stated that he did not oppose prayer 1 for leave to substitute the 2nd, 3rd, 4th and 5th Defendants/Appellants who were said to have passed on to the great beyond. Without much ado, leave to substitute the stated late Defendants/Appellants was granted as prayed.
Prayer no 2 was the only one in contention. It is for stay of execution of the judgment of the Trial court dated 25-9-98.
At this stage, the facts, as discernible from the affidavit in support of the application, counter affidavit in opposition and reply to same should be duly assembled in as much as the same are relevant to prayer 2.
As can be gleaned from the affidavit in support, judgment in the suit was handed out by the Trial Judge, Amaizu, J., (as he then was) on 25-9-98. The Applicants felt dissatisfied and appealed on 26-9-98. CHC Nwanya, Esq. Applicants’ erstwhile counsel filed a motion for stay of execution of the judgment of the lower court. The motion came up for hearing before Obiora, J. on 2-2-99. As CHC Nwanya, applicants’ counsel, as at then, was absent, Obiora. J., struck out the applicants’ motion for stay of execution with N500.00 costs against the Appellants who had to change counsel. An amended notice of appeal was filed. It is Exhibit B. Applicants’ grounds of appeal contain substantial points of law. The land in contention is worth millions of Naira. Appellants have been in possession from time immemorial. The land is their main source of livelihood. The Respondents now trespass into other lands not attached to the judgment. That there is a risk of Respondents alienating the Res and thereby rendering nugatory the judgment of this Court.
The facts that can be garnered from the counter-affidavit point to the direction that the Respondents have been in actual possession of the subject-matter of the appeal and same was reaffirmed by the judgment of the Trial court handed out on 25-9-98. Notice cum grounds of appeal did not indicate any exceptional circumstance or substantial points of law warranting the grant of stay of execution of the judgment pending the determination of appeal. Immediately after the judgment, the applicant invaded the land and harvested all the crops on the land and cut down economic trees therein to the chagrin of the Respondents.
The Respondents have been in actual possession of the land and have been exercising acts of ownership as confirmed by the judgment of the lower court. The Respondents deny any plan to part with the Res and are willing to give an undertaking not to alienate any portion of the land.
The essential facts in the reply to counter affidavit are that acts of wanton destruction were caused by the Respondents. Applicants do not have interest in destroying their main source of livelihood which they depend on to prosecute this appeal. Applicants are prepared to accept an undertaking offered by the Respondents not to alienate any portion of the land in dispute pending the determination of the appeal to this court.
Mrs. G. Peter-Okoye moved the application with equanimity. She relied on her stated affidavit as well as the stated uncertified judgment – Exhibit ‘A’ and amended notice of appeal cum grounds of appeal- Exhibit ‘B’. She submitted that the court has jurisdiction, power and the will to grant the application. She observed that there are special circumstances to warrant a stay of execution of the stated judgment of the Trial court. She referred to paragraphs 9 – 15 of the affidavit in support.
She opined that their grounds of appeal contain substantial and arguable points of law and referred to the case of Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 at 77. She referred, in particular, to ground no 6 of the grounds of appeal. She pointed it out that each party is ready to enter into an undertaking not to alienate any portion of the land pending the determination of the appeal. She urged that the application be granted.
Mr. G. E. Ezeuko. SAN, maintained that the complaint about judgment in the land matter being one in rem or in personam is not contained in the proceedings in the certified copy of the record of appeal. He referred to pages 179 – 180 or what he called record. He observed that consequently, the point raised cannot be an arguable point of law. Ground 6 relied upon by learned counsel for the applicant is not a special circumstance to grant a stay of execution according to the senior counsel. He further referred to page 193 of the record with him to show reliefs granted by the Trial Judge. According to the Senior Advocate, the appellants were found to be trespassers. He observed that it will not be correct to give them greenlight to go into the land. He cited the case of Lawrence Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129 at 137. He referred to paragraph 9(i) of the counter affidavit and re-affirmed the Respondents’ undertaking not to alienate the land and further referred to the case of Orient Bank of Nigeria Plc v. Bilante International Ltd. (1996) 5 NWLR (Pt.447) 166 at 168. Learned senior counsel submitted that the application does not qualify to be favourably considered as the only issue in the appeal relates to facts. He urged that the application be dismissed.
Mrs. G. Peter-Okoye, in reply, submitted that for the purpose of the application, the document relied upon is the judgment of the Trial court- Exhibit .A’. She referred to paragraph 8 (vi) of reply to counter affidavit which deposes to the poverty of the applicants. She asserted that the character of the land should not be changed.
Mr. G. E. Ezeuko, SAN, further assured the court of Respondents’ undertaking that apart from using the land as farm land, they will not build on it or sell same. The character of the land will not change pending the determination of the appeal.
At this juncture, it must be pointed out that the copy of the judgment of the Trial court, attached as Exhibit A was not duly certified by the Assistant Chief Registrar of the said court. He did not sign that he certified same.
It must be stated that an uncertified judgment, such as Exhibit A, cannot be taken as an authentic document. It was not surprising to me that Mr. G.E. Ezeuko, SAN, Senior Counsel for the Respondents picked holes in Exhibit A. He referred to pages 179 – 190 of the certified record of appeal with him (not at our disposal) and maintained that ground 6 of the grounds of appeal touching judgment in the land case being one in rem did not feature therein. I must say that I cannot now embark upon investigation of the record of appeal which was not at my disposal in the open court.
A court of justice should not embark upon cloistered justice, as it were.
An applicant who wants a stay of execution of judgment should ensure that the relevant, duly certified copy of the judgment is presented before the court for due consideration of his application. An applicant, who fails to present the duly certified judgment before the court, does so to his own peril and/or chagrin. An uncertified judgment cannot be perused: for it’s authenticity is in doubt. And so, the grounds of appeal cannot be cross-checked vis-a-vis the judgment complained against. Yet, the applicant’s desire to have a stay of execution pending the determination of their pending appeal. The lapse has created a yawning gap which remains uncovered.
The law relating to the grant of an order of stay of execution pending determination of appeal is now well settled by deciding authorities. In Vaswani Trading Company v. Savalakh & Co. (1972) N.S.C.C. 692, it was held that a court of appeal should not grant a stay of execution unless there are special circumstances for doing so. This means 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 of 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. The following authorities are also in point- Lawrence Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129; (1987) 1 All NLR 373 at 377 – 378; Williams v. Busari (1973) 3 E.C.S.L.R. 518 at 520; Nigeria Civil Service Union v. Essien (1985) 3 NWLR (Pt.12) 306 at 316 – 317.
Grounds of appeal which can be related to the judgment must contain substantial and arguable points of law. See Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 at 77.
Grounds 6 in Exhibit ‘B’ – Notice cum grounds of appeal complained about pronouncement that judgment in the land matter being one in rem. Since there is no certified copy of judgment from which I can cross-check same, I cannot now say it is an arguable point of law. Equally, I cannot, for now, say that it is a special circumstance to warrant a grant of an order for stay of execution pending determination of appeal herein. An averment in the counter-affidavit says the Applicants were adjudged to be trespassers on the land. It will not tally with reason to dislodge the respondents and give the applicants the lee-way to go into the land. The status quo, as presently dictated by the judgment of the Trial court, should remain.
The Applicants appear to be very apprehensive as regard alienation of the Res and/or change in it’s character pending the determination of the appeal. I think the solemn undertaking by the Respondents not to alienate the Res or radically change it’s character is noted. They should keep to their words. The further undertaking by Mr. G. E. Ezeuko, SAN, from the Bar covers the ground. He talked like a gentleman. I feel he is one. In any event, Mrs. G. Peter – Okoye, learned counsel for the Appellants, said they are ready to accept the solemn undertaking.
I am unable to pin-point any special or strong circumstance to warrant an order of stay of execution of the judgment pending determination of appeal. Sequel to the solemn undertaking of the Respondents, backed by that of their senior counsel, the subject-matter will not be alienated or have its character changed radically. The ultimate judgment of this court will not be rendered nugatory.
I come to the final conclusion that the application lacks merit. I accordingly refuse lo accede to same. Application is hereby refused. The Applicants shall pay N1,000 costs to the Respondents.
TOBI, J.C.A.: In arguing that the appeal contains substantial and arguable points of law, which satisfy the principle of granting the application on exceptional circumstances, learned counsel referred particularly to Ground 6 of the Notice of Appeal. The ground deals with an alleged wrong exposition of the law by the learned trial Judge that a proceeding in land case is a judgment in rem. Learned Senior Advocate for the respondents submitted that Ground 6 does not constitute a special circumstance to grant the application. I entirely agree with him. The issue of whether judgment in a land matter is judgment in rem or in personam is commonplace and not a recondite principle of law to qualify as special circumstance.
There is nothing recondite about the principle because it is not a profound, hidden, obscure principle of law.
Learned Senior Advocate called the attention of the court of paragraph 9(i) of the counter affidavit and assured the court that the deposition will be adhered to. The sub-paragraph deposes as follows:
“The plaintiffs/Respondents deny any plan on their part to dispose of any portion or portions of their farmland to any individual or individuals. The plaintiffs/Respondents are prepared and willing to give an undertaking not to alienate any portion or portions of the said land pending the determination of the appeal.”
Learned Senior Advocate, Mr. Ezeuko reaffirmed the undertaking in the course of his submissions in court and I have no cause to doubt him. The matter becomes very easy when the above is taken along with the deposition in paragraph 9 of the applicant’s Reply to the counter affidavit. The paragraph reads:
The Applicants are prepared and willing to accept an undertaking offered by the Respondents not to alienate any portion or portions of the land in dispute pending the determination of the appeal to this Honourable court.”
Learned counsel for the applicants made reference to the above two paragraphs which coincidentally fall on the figure “9”. I think she will be satisfied with the undertaking.
An undertaking may not necessarily be monetary or financial. A legal practitioner can, at the bar, make a solemn pronouncement or statement that he undertakes as counsel qua advocate to do or perform or refrain from doing or performing a particular act. I think courts of law should accept such an undertaking as good for most purposes. I so accept the undertaking of learned Senior Advocate for the respondent. In the light of the above and the reasons given by my learned brother, Fabiyi, JCA. I also dismiss the application. I equally award N1,000.00 costs in favour of the respondents.
OLAGUNJU, J.C.A.: On a preview of the draft of the Ruling made available to me, I agree with the conclusion of my learned brother. J.A. Fabiyi, JCA, that this application lacks merit and should be refused. The application is pitched precariously between the devil and the deep blue sea.
For one thing, from quasi-procedural standpoint, staying execution of a judgment pending the determination of an appeal calls for striking a just balance between the competing rights of the parties a task which is not assisted by the applicants’ failure to furnish the court with a certified true copy of the judgment of the trial court being appealed against from which a prima facie merit of the application can be assessed. This is a desideratum that militates against a dispassionate exercise of the court’s discretion for which the applicants must carry the can. See NNSC Ltd. v. Alhaji Hamajoda Sabana Co. Ltd. (1988) 2 NWLR (Pt.74) 23; (1988) 3 SCNJ (Pt.1) 130, 160; and Ogunsola v. NICON (1999) 10 NWLR (Pt.623) 492. 501.
For another, on the merit of the application, the applicants as adjudged trespassers are on a sticky wicket. The hurdles faced by suppliants in the applicants’ position were explained in a recent decision of this court in Ajayi v. Oladele (1999) 7 NWLR (Pt.612) 567, 578, where it was said: …granting to an adjudged trespasser a Stay of execution of the judgment is tantamount to the court sanctioning a continuance of act of trespass by the applicants/trespassers which follows the principle enunciated in The Military Governor of Lagos Sttate v. Ojukwu (1986) 1 NWLR (Pt.18) 621, 645-646, and applied in Akibu v. Oduntan (1991)2 NWLR (Pt.171) 1, 13: and Ajomale v. Yaduat (1991) 5 NWLR (Pt.191) 266, 291. ..a return to status quo ante litem anticipated as the aftermath of the grant of a stay may not be more than a camouflage by the applicants to settle on their own terms. It is impractical because the applicants having entrenched themselves on the land at the time the action was instituted hold all the aces that would enable them to bounce back to the position from where the judgment had dislodged them.”
Indeed, whichever way one looks at it the odds are heavily stacked against the applicants without a dog’s chance of getting a relief on the merit of their application. Therefore, for the fuller reasons given in the leading judgment coupled with the foregoing, I too will refuse this application with N1,000 costs against the applicants.
Application refused.
Application granted in part.
Appearances
- U. E. Peter-Okoye (Mrs.) (with her, B. S. C. Ibeziako, Esq.)Respondents For Appellant
AND
- E. Ezeuko, SAN (with him, O. A. Ulasi, Esq.) For Respondent
