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 BEYIOKU v. KOLAWOLE & ORS (2022)

 BEYIOKU v. KOLAWOLE & ORS

(2022)LCN/16028(CA) 

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/L/339/2011(R)

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

SAMINU ATANDA BEYIOKU APPELANT(S)

And

1. ALHAJA LAMIDI KUTI 2. MR. KABIRU KUTI 3. MR. AKEEM KUTI (Substituted For Alhaji Ganiyu Kuti By Order Of Court Dated 6th December, 2011) 4. LAMIDI KOLAWOLE 5. YEKINI KOLAWOLE (Substituted For Alhaji Abdulkadir Kolawole Jimoh By Order Of Court Dated 1st February, 2014) RESPONDENT(S)

 

RATIO:

A STAY OF EXECUTION WOULD ONLY BE GRANTED IF THE APPLICANT SHOWS SPECIAL AND EXCEPTIONAL REASONS

A successful litigant is entitled to enjoy the fruits or benefits of his success. A stay of execution of the judgment of the Court, pending the hearing and determination of an appeal, has the effect of stopping, albeit temporarily, the successful litigant from enjoying the fruits of the judgment while the appeal is being heard. This is the major reason why Courts do not make a practice of depriving the successful litigant of the fruits of his success, unless there are very special circumstances; Vaswani Trading Co v. Savalakh & Co (supra), (1972) LPELR-3460(SC).
A stay of execution would be only be granted if the applicant is able to show special and exceptional reasons; SPDC (Nig) Ltd v. Amadi & Ors (2011) LPELR-3204(SC); T.S.A. Ind. Ltd v. Kema Investments Ltd (2006) LPELR-3129(SC); Fatoyinbo & Ors v. Osadeyi & Anor (2002) LPELR-1252(SC). There must be some special circumstance or unique circumstance to hold back the hand of the Court; Integration Nigeria Limited v. Zumafon Nigeria Limited (2014) LPELR-22012(SC). The aim is to protect the res from destruction, thereby avoiding a situation where the Court hearing the appeal is presented with a fait accompli. ONYEKACHI AJA OTISI, J.C.A.

WHAT CONSTIITUTES SPECIAL AND EXCEPTTIONAL CIRCUMSTANCES

What constitutes special and exceptional circumstances cannot be defined exhaustively, as it would vary from case to case. In Vaswani Trading Co & Co v. Savalakh & Co (supra) at pages 7 – 8 of the E-Report, the Supreme Court prescribed these guiding parameters:
“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 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.” ONYEKACHI AJA OTISI, J.C.A. 

THE RIGHTS ON APPEAL ON GROUNDS OF MIXED LAW AND FACT

It is also trite that the right of appeal from this Court to the Supreme Court on grounds of mixed law and fact can only be competently exercised with leave of either this Court or of the Apex Court. See Section 233 (2) and (3) of the 1999 Constitution, as amended. See also Emokpae v. Stanbic IBTC Pension Managers Ltd (2021) LPELR-53383(SC); Eze v PDP & Ors (2018) LPELR-44907(SC); Comex Ltd v. Nigeria Arab Bank Ltd (supra), (1997) LPELR-882(SC); Nalsa & Team Associates v. NNPC (1991) LPELR-1935(SC); Minister of Petroleum & Mineral Resources & Anor v. Expo-Shipping Line (Nig) Ltd (2010) LPELR-3189(SC).
Recently restating this established position of the law, the Supreme Court, per Garba, JSC in Owners of The Mt “Marigold” v. Nigerian National Petroleum Corp. & Anor (2022) LPELR-56858(SC) at pages 9 – 10, said:
“…where an appeal from the decisions of the Court below to this Court is predicated or based on ground/s which raises or involves questions or issues which are not or pure law alone, but involves or raises questions or issue of either mixed law and facts or of facts alone, then the provisions of Subsection (3) of Section 233 come in to play and apply to the right of appeal, which would, in the circumstances, not be exercised as of right, but in accordance with the stipulation therein. The stipulation is that where the ground/s of an appeal against the decision of the Court below involves or raises questions which are not of pure law alone, as set out in the provisions of Subsection (2), then the appeal shall lie to this Court with the leave of Court below or of this Court. The exercise of the right of appeal, in such a situation, is fettered by the requirement of prior leave or permission of the Court below or this Court before the filing or bringing a valid appeal in this Court which will in turn, vest the Court with the requisite competence and jurisdiction to entertain and adjudicate over it. The leave of Court is made a condition precedent to be satisfied or fulfilled for the validity and competence of an appeal to this Court from the decisions of the Court below which involves or raises questions of either mixed law and fact or facts alone, under the provisions of Subsection (3). It is the prior leave of Court; first sought and obtained, that constitutes the fulfillment or satisfaction of the condition precedent for the filing or a valid and competent appeal which will vest the Court with the requisite judicial vires and authority to entertain such an appeal. The absence of the required and so necessary leave of Court in such a situation, will deprive the Court of competence and jurisdiction to hear or adjudicate over the appeal.” (Emphasis mine). ONYEKACHI AJA OTISI, J.C.A. 

THE DUTY OF THE COURT IN AN APPLICATION FOR STAY OF EXECUTION PENDING APPEAL

The duty is on the Court in an application for stay of execution pending appeal to consider very dispassionately the competing rights of the parties the category of which includes the right of a successful party to reap the fruits of his victory and the demand of Justice to preserve the res pending the determination of the appeal, so that the appeal if successful should not be rendered nugatory. This duty foist on the Court the herculean task of exercising its discretion both judicially and judiciously with one view in mind and that in the dispensation of justice. See: Kigo (Nig.) Ltd vs. Holman Bros. (Nig.) Ltd (1980) 5-7 S. C. 60. For a grant of stay to be successful there must be special circumstances to warrant the grant of stay of execution. I have also noted that the applicant did not seek leave of Court before lodging the notice of appeal. In short, there is no competent notice of appeal as such while there is no competent, or valid notice of the appeal, the appeal ultimately would collapse. This appeal has no leg to stand and consequently it will fail and so since it failed to stand the proper decree to make is to dismiss it. I, too like my learned brother in the lead judgment had ruled, the appeal is hereby dismissed. OBANDE FESTUS OGBUINYA, J.C.A 

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgement): By Motion on Notice filed on 23/3/2022, the Appellant/Applicant sought the following orders:
1. AN ORDER staying execution of the judgment of this Honourable Court delivered on the 25th of November, 2021 pending the hearing and determination of the appeal lodged in the Supreme Court by the Appellant/Applicant.
2. AND such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

The grounds upon which the application was brought were:
a. The Appellant/Applicant has lodged an appeal against the judgment of this Honourable Court delivered on the 25th November, 2021 at the Supreme Court.
b. The Appellant/Applicant has lodged an appeal to the Supreme Court and the grounds of appeal as disclosed in the Notice of Appeal forming part of Exhibit US1 raise substantial and recondite issues of law.
c. Unless the Judgment of this Honourable Court delivered on the 25th November, 2021 is stayed, the Appellant will be ejected from the property the subject matter of this appeal.

In support of the application is an affidavit of seven paragraphs deposed to by Oluyomi Jegede, Litigation Officer in the Law Firm of Universal Solicitors & Advocates, Solicitors to the 1st Appellant/Applicant. Annexed to the affidavit as Exhibit US1 is a copy of the Notice of Appeal.

The 1st Appellant/Applicant had deposed in paragraphs 3 – 6 of the supporting affidavit that:
3. That I am(sic) informed by the Appellant/Applicant in my office on the 16th of March, 2022 at about 12 noon and I verify belief(sic) him as follows:
a. That this Honourable Court on the 25th of November 2021 delivered judgment against the Appellant/Applicant.
b. That the Applicant/Appellant been dissatisfied with the said judgment has lodged an appeal to the supreme Court. Herewith attached and marked Exhibit US1 is copy of the Notice of Appeal.
c. That the Applicant is in possession of the subject matter of the suit and if stay of execution is not granted, the Applicant will be ejected.
4. That I am informed by Yemi Okewoye, Esq., of Counsel in my office on the 16th March, 2022 at about 1:00pm and I verily believe him as follows:
i. That the grounds of appeal is(sic) disclosed in the Notice of Appeal forming part of Exhibit US1 raise substantial and recondite issues of law.
ii. Having regard to the grounds of appeal raised in the proposed Notice of Appeal, it is in the interest of justice that execution of the judgment delivered on 5th July, 2010 be stayed pending the determination of the appeal.
iii. If the application for stay of execution is not granted the constitutional right of appeal of the Applicant will be destroyed.
5. Unless this Application is granted, the Applicant will suffer untold prejudice and hardship and the Applicant may be faced with a state of complete helplessness should the appeal be determined in the Applicant’s favour.
6. The Applicant is eager and willing to prosecute the appeal.

In opposition to this application, the Judgment Creditors/Respondents filed a counter affidavit of seven paragraphs on 31/3/2022, deposed to by the 2nd Judgment Creditor/Respondent, on behalf of both Respondents, stating in paragraph 5 of the counter affidavit:
“a. That the Judgment Debtors/Applicants(sic) intention is to use the motion to stall execution.
b. That the Judgment Debtors;/Applicants are not willing to prosecute the appeal in this case.
c. That no record of Appeal are(sic) being collated for Supreme Court by the Judgment Debtors/Applicants.
d. That the Judgment Debtors/Applicants will not be denied their right of Appeal if the application is refused.”

The parties filed written submissions, pursuant to the Rules of this Court. At the hearing of the application on 25/4/2022, Abdulrasheed Ibrahim, Esq., for the Applicant adopted their written address filed on 23/3/2022. Prof A. Amuda-Kannike, SAN, who appeared with M.S. Arikewuyo, Esq., for the Respondents, adopted their written address filed on 31/3/2022.

ARGEMENT OF COUNSELS
Mr. Ibrahim for the 1st Appellant/Applicant relied on the depositions in the affidavit in support of the motion, and on the Notice of Appeal attached as Exhibit US1.

A sole issue was formulated for determination of the application, thus:
Whether the Applicant has placed sufficient materials before this Honourable Court to be entitled to the reliefs sought.

​The 1st Appellant/Applicant acknowledged that Courts do not make it a practice to deprive a successful litigant the fruits of his labour. But that Courts are generally disposed to granting a stay of execution of the judgment in order to preserve the status quo, when special circumstances exist for the grant of the order. The grant of an order of stay of execution is done in order not to render nugatory the whole exercise of an appeal, citing Vaswani Trading Co Ltd v Savalakh & Co (1972) 12 SC 77.

The grant of an order for stay of execution is discretionary, which discretion the Court must exercise judicially and judiciously upon special circumstances shown in the affidavit in support of the application. Determining special circumstances include a consideration of the balance of convenience between the parties and the existence of grounds of appeal that raise substantial and recondite issues, citing Olunloyo v Adeniran (2001) 14 NWLR (Pt 734) 699 at 709; Martins v Nicannar Foods Co Ltd (1988) 2 NWLR (PT 74) 75, Abdulkadiri v Ali (1999) 1 NWLR (PT 584) 61. It was argued that the balance of convenience was in favour of the grant of the application. The Court was urged to allow the application.

​Learned Senior Counsel for the Respondents adopted the sole issue raised by the 1st Appellant/Applicant, and relied on the Counter affidavit. He submitted that no special circumstances had been shown to enable the grant of the application, citing Comex Ltd v. Nigeria Arab Bank Ltd (1997) 3 NWLR (PT 496) 643; Vaswani Trading Co Ltd v Savalakh & Co (1972) 4 NWLR (PT 64) 129; Martins v Nicannar Foods Co Ltd (1988) 2 NWLR (PT 74) 75; United Spinners v Chartered Bank (2001) FWLR (PT 66) 640.

He argued that there was no competent appeal. There was no application for leave to appeal against mixed law and fact. That the application itself was an abuse of Court process. The motion on notice did not tally with the notice of appeal filed. They were contradictory to each other. The judgment, which execution was sought to be stayed, was not attached to the supporting affidavit. The Court was urged to dismiss the application.

Resolution
A successful litigant is entitled to enjoy the fruits or benefits of his success. A stay of execution of the judgment of the Court, pending the hearing and determination of an appeal, has the effect of stopping, albeit temporarily, the successful litigant from enjoying the fruits of the judgment while the appeal is being heard. This is the major reason why Courts do not make a practice of depriving the successful litigant of the fruits of his success, unless there are very special circumstances; Vaswani Trading Co v. Savalakh & Co (supra), (1972) LPELR-3460(SC).
A stay of execution would be only be granted if the applicant is able to show special and exceptional reasons; SPDC (Nig) Ltd v. Amadi & Ors (2011) LPELR-3204(SC); T.S.A. Ind. Ltd v. Kema Investments Ltd (2006) LPELR-3129(SC); Fatoyinbo & Ors v. Osadeyi & Anor (2002) LPELR-1252(SC). There must be some special circumstance or unique circumstance to hold back the hand of the Court; Integration Nigeria Limited v. Zumafon Nigeria Limited (2014) LPELR-22012(SC). The aim is to protect the res from destruction, thereby avoiding a situation where the Court hearing the appeal is presented with a fait accompli.

What constitutes special and exceptional circumstances cannot be defined exhaustively, as it would vary from case to case. In Vaswani Trading Co & Co v. Savalakh & Co (supra) at pages 7 – 8 of the E-Report, the Supreme Court prescribed these guiding parameters:
“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 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 onus is always on the applicant for a stay of execution, pending appeal, to satisfy the Court that in the peculiar circumstances of his case, a refusal of a stay would be unjust and inequitable; Okafor v Nnaife (1987) LPELR-2420(SC); NNPC v Famfa Oil Ltd & Anor (2009) LPELR-2023(SC).

​It is in the light of this onus on an applicant for an order of stay of execution pending appeal that I find it noteworthy that the 1st Appellant/Applicant did not deem it necessary to depose to a further affidavit to refute the depositions of the Judgment Creditors/Respondents in their counter affidavit. The judgment sought to be stayed was also not placed before the Court in a further affidavit to present a complete picture to ground the grant of their application.

In the Notice of Appeal on nine grounds of appeal, attached to the affidavit in support of this application as Exhibit US1, the 1st Appellant/Applicant stated that the appeal was lodged against the judgment of this Court delivered on 25/11/2021, “as of right to the Supreme Court”. Grounds 1 – 9 of the said Notice of Appeal all challenged the evaluation of the evidence by this Court. It is trite that a complaint on the evaluation of the evidence is a ground of mixed law and fact; Ogbechie & Ors v. Onochie & Ors (1986) LPELR-2278(SC); Jim Jaja v. COP Rivers State & Ors (2012) LPELR-20621(SC).

​It is also trite that the right of appeal from this Court to the Supreme Court on grounds of mixed law and fact can only be competently exercised with leave of either this Court or of the Apex Court. See Section 233 (2) and (3) of the 1999 Constitution, as amended. See also Emokpae v. Stanbic IBTC Pension Managers Ltd (2021) LPELR-53383(SC); Eze v PDP & Ors (2018) LPELR-44907(SC); Comex Ltd v. Nigeria Arab Bank Ltd (supra), (1997) LPELR-882(SC); Nalsa & Team Associates v. NNPC (1991) LPELR-1935(SC); Minister of Petroleum & Mineral Resources & Anor v. Expo-Shipping Line (Nig) Ltd (2010) LPELR-3189(SC).
Recently restating this established position of the law, the Supreme Court, per Garba, JSC in Owners of The Mt “Marigold” v. Nigerian National Petroleum Corp. & Anor (2022) LPELR-56858(SC) at pages 9 – 10, said:
“…where an appeal from the decisions of the Court below to this Court is predicated or based on ground/s which raises or involves questions or issues which are not or pure law alone, but involves or raises questions or issue of either mixed law and facts or of facts alone, then the provisions of Subsection (3) of Section 233 come in to play and apply to the right of appeal, which would, in the circumstances, not be exercised as of right, but in accordance with the stipulation therein. The stipulation is that where the ground/s of an appeal against the decision of the Court below involves or raises questions which are not of pure law alone, as set out in the provisions of Subsection (2), then the appeal shall lie to this Court with the leave of Court below or of this Court. The exercise of the right of appeal, in such a situation, is fettered by the requirement of prior leave or permission of the Court below or this Court before the filing or bringing a valid appeal in this Court which will in turn, vest the Court with the requisite competence and jurisdiction to entertain and adjudicate over it. The leave of Court is made a condition precedent to be satisfied or fulfilled for the validity and competence of an appeal to this Court from the decisions of the Court below which involves or raises questions of either mixed law and fact or facts alone, under the provisions of Subsection (3). It is the prior leave of Court; first sought and obtained, that constitutes the fulfillment or satisfaction of the condition precedent for the filing or a valid and competent appeal which will vest the Court with the requisite judicial vires and authority to entertain such an appeal. The absence of the required and so necessary leave of Court in such a situation, will deprive the Court of competence and jurisdiction to hear or adjudicate over the appeal.” (Emphasis mine).

The main reason or special circumstance given by the 1st Appellant/Applicant for seeking the grant of this application is that a Notice of Appeal had been lodged in the Supreme Court. However, the 1st Appellant/Applicant did not consider it necessary to obtain leave of Court, in compliance with constitutional provisions, before lodging the proposed Notice of Appeal. There is therefore no competent notice of appeal. This is fundamental. The Notice of Appeal relied on the Applicant was, patently, an irredeemably incompetent Notice of Appeal.
​An order staying execution of a judgment cannot be granted in vacuum. If there is no competent Notice of Appeal, then there is nothing to hang the grant of the order of stay of execution on. There was therefore no material placed before this Court to enable the grant of the order for stay of execution as sought. The sole issue formulated for determination of this application is, thus, resolved against the 1st Appellant/Applicant.

This application is therefore refused and is hereby dismissed. It is further ordered that the 1st Appellant/Applicant shall pay costs of N50,000.00 to the Judgment Creditors/Respondents.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the succinct leading ruling delivered by my learned brother: Onyekachi Aja Otisi, JCA. I endorse in toto the legal reasoning and conclusion in it. I, too, visit a deserved penalty of dismissal on the application. I abide by the consequential orders decreed in the leading ruling.

.: I have the privilege of reading the draft judgment of my learned brother ONYEKACHI AJA OTISI, JCA. I agree with his reasoning and conclusion, I would also make the same orders as in the lead ruling. The privileges guiding the grant or refusal of an application for stay of execution have been stated several times in a plethora of judicial decision. The duty is on the Court in an application for stay of execution pending appeal to consider very dispassionately the competing rights of the parties the category of which includes the right of a successful party to reap the fruits of his victory and the demand of Justice to preserve the res pending the determination of the appeal, so that the appeal if successful should not be rendered nugatory. This duty foist on the Court the herculean task of exercising its discretion both judicially and judiciously with one view in mind and that in the dispensation of justice. See: Kigo (Nig.) Ltd vs. Holman Bros. (Nig.) Ltd (1980) 5-7 S. C. 60. For a grant of stay to be successful there must be special circumstances to warrant the grant of stay of execution. I have also noted that the applicant did not seek leave of Court before lodging the notice of appeal. In short, there is no competent notice of appeal as such while there is no competent, or valid notice of the appeal, the appeal ultimately would collapse. This appeal has no leg to stand and consequently it will fail and so since it failed to stand the proper decree to make is to dismiss it. I, too like my learned brother in the lead judgment had ruled, the appeal is hereby dismissed.

I abide by the order to the cost.

Appearances:

Abdulrasheed Ibrahim, Esq. – for 1st Appellant/Applicant. For Appellant(s)

Prof A. Amuda-Kannike, SAN, with him, M.S. Arikewuyo, Esq. For Respondent(s)