CHIEDOZIE NNAWUIHE & ORS v. BARR. HENRY OKWARA
(2018)LCN/11897(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/OW/330/2017(R)
RATIO
JUDGMENT: TO ASK FOR STAY OF EXCUETION ON JUDGMENT
“The Court cannot stop what has already been done, as that is not possible. See the Zenith Bank Plc Vs John (2015) 7 NWLR (Pt. 1458) 393, where my Lord Onnoghen JSC (now CJN) said:
”It is settled law that once an execution is completed, you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law which does nothing in vain
See also INEC Vs Mbonu (2018) LPELR 44018 (CA); INEC Vs Nwosu (2018) LPELR 44019 (CA).
I cannot see how Applicants can succeed, in the circumstances, that what they wanted to stop what had been done and completed. Moreover, one cannot even talk of the establishment of special or exceptional circumstances by Appellants to justify, denying the successful party of right to enjoy the gains of his success in a judgment. See the case of Integration Nig. Ltd Vs Zumafon Ltd (2014) 288 LRCN 161; Vaswani Trading Co. Ltd Vs Savalakh (1972) 12 SC 77; Martins Vs Nicannar Food Company Ltd & Anor (1988) LPELR 1844 (SC), on the conditions needed to satisfy special or exceptional circumstances to stay execution of judgment, which the parties herein have agreed upon and pleaded. But Appellant could not have proved, in the circumstance of this case.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. CHIEDOZIE NNAWUIHE
2. IKECHUKWU NNAKWE
3. KENNETH NNADOZIE ANUMNU (For themselves and on behalf of the Purported
executive of Nneato Ogwugwu Autonomous Community,Ideato South L.G.A of Imo State)
4. MR. PETER ADIM
5. UCHECHUKWU OKWARA
6. MOSES IKEA Appellant(s)
AND
BARR. HENRY OKWARA
THE EXECUTIVE GOVERNOR OF IMO STATE, NIGERIA Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Lead Ruling):
Appellants/Applicants filed a motion on 25/8/2017, seeking:
”An Order of this Court staying the execution of the judgment of his Lordship, L.C. Azuama J., of the High Court of Imo State, sitting in Orlu and delivered on the 13th of May, 2017, pending the hearing and determination of this appeal.
OR, IN THE ALTERNATIVE
(2) An Order of this Court, restraining the two sets of Respondents from taking any steps (or any further steps) in implementing the orders contained in the said judgment of his Lordship, L.C. Azuama, pending the hearing and determination of this appeal.
And for such Further or Other Orders
The motion was supported by an affidavit of 29 paragraphs and Exhibits (1 to 4) as well as a written address. The grounds for which the motion was predicated (which also agreed with the supporting affidavit) were:
(1) This is an Ezeship matter. The 3rd applicant had been presented and recognized as the Eze (or Traditional Ruler) of his Community by the State Governor of Imo State, the 2nd Respondent in this matter.
(2) Dissatisfied with this, the 1st Respondent went to the High Court of Imo State sitting at Orlu and commenced this action.
(3) In his judgment, the Learned Trial Judge set aside the presentation and recognition of the 3rd Applicant and instead, granted all the Reliefs of the 1st Respondent, including making Orders for his presentation and recognition as Eze by the 2nd Respondent.
(4) Dissatisfied with the judgment, the Applicants have appealed to this Court by their Notice of Appeal filed in the Registry of the Court below on the 29th March, 2017, and thereafter, filed their Motion on Notice for stay/or Injunction on 10th day of April, 2017.
(5) In his ruling delivered on the 26th day of July, 2017, the Learned Trial Judge dismissed the said motion, thus necessitating the filing of this application before this Court.
The applicants contend that it is only the granting of this application that will maintain the status quo, pending the hearing of this appeal as the 1st Respondent is poised to push through the issue of his presentation and recognition as the Eze by the 2nd Respondent, a development that will render nugatory the final outcome of this appeal.
Exhibit 1 by the Applicants is the certified true copy of the judgment of the Court in this case – Suit HOR/28/2012 wherein the trial Court granted the reliefs sought by the Claimant (1st Respondent), that the evidence, proved his claim against the defendants in this Case and is therefore entitled to his reliefs in this Suit which succeeds as prayed with cost? I assess at N50,000.00.
Exhibit 2 is the Notice and grounds of Appeal, filed at the Registry of the Lower Court. Exhibit 3 is a copy of the motion for stay of execution, filed at the Lower Court which was dismissed, while Exhibit 4 is the Order dismissing the motion for stay of execution (Exhibit 3).
In his written address, Counsel for Appellants/Applicants distilled a lone issue for determination:
”Whether this Honourable Court should grant stay of execution of the judgment and/or Order an junction restraining the respondents from taking any further steps in enforcing the said judgment, being that the Applicants have disclosed special or exceptional circumstance to warrant granting the application.”
Counsel answered that in the affirmative. He argued that the order made was executory in nature and enforceable and so can be stayed. He relied on the case of Alhaji Ode & Ors Vs Pa Balogun & Ors (2002) FWLR (Pt.115) 693; University of Uyo Vs Akpan (2014) ALL FWLR (Pt. 736) 472; and Owena Bank Nig Plc Vs Jof Ideal family Farms Ltd (2003) FWLR (Pt.183) 128.
Counsel also argued that the trial Court was wrong to imply that process of election of the 1st Respondent had been completed, whereas evidence showed that only the Notice of Election was issued; he said that the election had not been held; that that was part of the issue Appellant was to address in the appeal; that since there was incontroverted evidence that 1st Respondent had not been presented to the government for recognition, as an Eze and that he had not been so recognized, that constituted the aspect of the judgment sought to be stayed, as they constitute the substance of the appeal. Thus, Counsel said that the said judgment has not been executed, merely by the holding of the election, and thus it can be effectively stayed.
He argued that it is trite that the general purpose of granting a stay of execution pending the determination of appeal, is to preserve the res in the case and in so doing, maintain the status quo. He relied on the case of Morison Industries Plc Vs CPL Ind. Ltd (2010) ALL FWLR (Pt. 552) 1753 at 1762 – 1763.
Counsel admitted that the onus was on the Applicant to satisfy the Appellate Court about the existence of special circumstances or exceptional reasons to justify the grant of stay and relied on the case of Amadi Vs Chukwu (2013) ALL FWLR (Pt. 703) 1944 at 1949 – 1950 to state such conditions that establish the special or exceptional reasons, as follows:
”In a situation where there is a pending appeal against the judgment, the following constitute special circumstances, when execution of the judgment would:
(a) Destroy the res or subject matter of the proceedings.
(b) Foist upon the Court, a situation of complete helplessness.
(c) Render nugatory any order or orders of the Appeal Court.
(d) Paralyze in one way or the other the exercise of the litigant of his constitutional rights of appeal, or
(e) Provide a situation in which even if the Appellant succeeds in his appeal, there could be no return to the status quo.
Counsel argued that the conditions (a) (c) and (e) above apply to this case, going by the supporting affidavit of the Applicant. He relied on Ikeja Real Estate Ltd Vs National Bank of Nigeria Ltd (2000) FWLR (Pt. 9) 4448 at 1452 ? 1453.
Counsel argued that if this application is not granted, and the 1st Respondent and his supporters proceed to present him for recognition and he is recognized, then the entire appeal is over, finished, done with, and further pursuit thereof will be a vain, useless, academic exercise.
For the alternative prayer, Counsel submitted that even if the judgment of the Court below is a mere declaratory judgment, that it is the law that if a declaratory order in which there is an appeal, would be proper for the Court to grant an injunction. He relied on the case of Nigeria Breweries Plc Vs Dumeje (2015) ALL FWLR (Pt. 807) 513; Akibu Vs Oduntan (1991) LPELR ? 335; Okoya Vs Santilli (1990) 2 NWLR (Pt. 131) 1172.
Counsel asserted again that if 1st Respondent is not restrained from enforcing the judgment, whatever decision this Court may give will be rendered nugatory should the Applicant succeed in the appeal.
He argued us to grant the application.
Replying, Respondent’s Counsel, C.O.N. Anyiam Esq., relied on the Counter affidavit of the 1st Respondent, filed 22/12/17 together with the Exhibits attached including the address of Counsel. He said that the application is completely empty, misconceived, misinformed and aimed at solely to deceive this Court; as the application is hinged on nothing. Counsel argued that Applicants are not approaching equity with clean hands – he said that the trial Court had earlier imposed an interlocutory injunction on 18/2/13 for the maintenance of status quo ante, but Appellants/Applicants defied it and caused the 2nd Respondent to recognize him and issue him with a staff of office on 31/3/2014, while the case was pending at the Lower Court; that that was one of the issues settled by the trial Court on 13/10/14 in the Exhibit E; he said that, the judgment in Exhibit E has not been appealed against and so remains binding. Thus, with effect from 13/10/2014, and before the judgment of the Lower Court on 13/3/2017, the 3rd Respondent ceased to be a traditional ruler (his staff of office having been voided).
Counsel added that, with effect from the 13/3/2017, when the trial Court gave judgment to 1st Respondent, he (1st Respondent) become the Eze-Elect; therefore this Court cannot act in vacuum; that it cannot stay a non-existing thing, as one cannot put something on nothing and expect it to stand. He relied on the case of MCFOY VS UAC (1962) AC 152 at 160.
Counsel further stated that what the trial Court ordered to be done in paragraph F of the judgment of 13/3/17 had since been done and concluded i.e.:
”An Order mandating 5th, 6th and 7th Defendants through the 6th Defendant as Secretary, to Issue Fresh Notice of Election in accordance with Town Union Constitution for the purpose of electing and Executive that will present the Claimant as the Eze-Elect and move the Community forward.” See paragraph (f) of the reliefs claimed in the judgment of 13/3/17 (appealed against).
He said that, pursuant to that declaratory order of Court, the 5th, 6th and 7th Defendants, in obedience to the order, issued fresh Circular for the Town Union Election on 15/3/2017 and on 18/4/2017, the Community held her first ever Town Union Election, without problem (as per Exhibits A and B, deposed to by the 6th Respondent).
Counsel observed that the Lower Court, while ruling on similar application for stay, brought by Applicant on 26/7/2017, at the lower Court held:
”that the 5th, 6th and 7th Defendants in the judgment now sought to be stayed have complied with the orders of this Court and there is nothing from the said 5th – 7th Defendants denying such assertion. Where that stands as I hereby accept to be the position, it becomes difficult, if not impossible, to contemplate a stay of a concluded action.”
Counsel added that further to the obedience to the Court order, the said Elected Executive had gone further by presenting the 1st Respondent before the General House, who equally adopted him as the Eze-Elect in obedience to the judgment order, before forwarding official letter for his presentation to the Local Government. He referred to Exhibit C. Counsel said that a judgment is presumed to be correct and rightly made, until the contrary is proved; that the Courts will not therefore make the practice of depriving a successful litigant of the fruits of his success, unless the Applicant discloses special and exceptional circumstance, to make it inexpedient to enforce the judgment. He relied on Integration Nig. Ltd Vs Zumafon Ltd (2014) 228 LRCN 161; Vaswani Trading Co. Ltd Vs Savalkh & Ors (1972) 12 SC 77.
Counsel submitted that Applicant has not disclosed any special or exceptional circumstance to predicate this application, adding that the fact that one has appealed does not operate as a stay of execution of the judgment. He urged us to dismiss the application, and relied on Deduwa Vs Okorodudu (1974) 6 SC 21 and Nwabueze Vs Nwosu (1988) 4 NWLR (Pt. 88) 257; T.S.A. Industries Ltd Vs Kema Investment Ltd (2006) 136 LRCN 1235.
Counsel further argued that the grounds of the appeal are not competent to sustain application for stay of execution; and that the motion for stay is not even competent; that it was filed on 25/8/2017 after the Lower Court had refused a similar application on 26/7/2017; that by Order 6 Rule 3 of the Court of Appeal Rules, 2016, such application should be brought within 15 days, after the refusal by the Lower Court. He urged us to strike out the application.
Counsel also said that the decision of the Lower Court was declaratory in nature and so cannot be stayed. He relied on Nigerian Army Vs Mowarin (1992) 4 NWLR (Pt. 235) 345; Albion Construction Ltd Vs Rao Investment (1992) NWLR (Pt. 219) 583; Govt of Gongola State Vs Tukur (1989) 4 NWLR (Pt. 117) 592; Bassey Vs Sama (1996) 6 NWLR (Pt. 457) 737.
RESOLUTION OF THE ISSUE
Applicants in this application sought for the following orders:
(1) An Order of this Court staying the execution of the judgment of His Lordship L.C. Azuama J, of the High Court of Imo State, sitting in Orlu and delivered on the 13th day of May 2017, pending the hearing and determination of this appeal.
OR, IN THE ALTERNATIVE
(2) An Order of this Court restraining the two sets of Respondents from taking any steps (or any further steps) in implementing the orders and directives contained in the said judgment of His Lordship, L.C. Azuama J, pending the hearing and determination of this appeal.? (Underlining Mine)
”I do not think there is anything to consider in this application, as it is founded on a purported judgment that does not exist, or is mistaken! ”
Whereas, the motion talked about the judgment of Imo State High Court delivered by his Lordship L.C. Azuama, on 13th May, 2013, the affidavit of the Appellants, deposed to by Kenneth Nnadozie Anumnu, male Christian, the 3rd Defendant/Appellant/Applicant himself, stated that judgment, they sought to stay its execution was delivered on 13th day of March 2017! And the judgment is exhibited to the Motion papers as Exhibit I.
I have had a cursory look at the said Exhibit I, and noted that it carries 13th March, 2017, on the front page of it, as the date of delivery of the judgment. If Applicants actually brought this application to stay the said decision of the trial Court in HOR/28/2012, delivered on 13/3/17 by Hon. Justice L.C. Azuama, I am afraid, they slipped into a fatal error, as their prayers in the motion, rather relate to a non-existing judgment, or one unrelated to the supporting affidavit and the exhibits/arguments in this application. That means all the claims and arguments of the Applicants in this matter, are all wasted, misplaced empty rumbling, like an empty cloud without rain.
The application is therefore incompetent and should be struck out as the arguments went to no issue. See Mato Vs Hember & (Ors) (2017) LPELR 42765 (SC); Abudullahi and & Anor Vs Mamza (2013) LPELR 21964 CA.
I also think even if Applicants had stated the correct date of the judgment in the motion they wanted this Court to stay its execution, that that application would not sail or succeed in the face of the facts and evidence disclosed in the arguments of the parties. There is evidence that the order which Applicants would want to be stayed in the Suit No. HOR/28/2013, delivered on 13/3/17 had already been carried out and complied with. In Exhibit E (the judgment) the trial Court simply held:
That the Claimant on the preponderance of evidence, proved his claim against the defendants in this case and it therefore entitled to his reliefs in this Suit which succeed as prayed with cost which I assess at N50,000.00 against the 1st set of Defendants.
The Reliefs at the Lower Court were declaratory in nature, among which was relief (f):
”An order mandating the 5th, 6th and 7th Defendants through the 6th Defendant as Secretary, to issue fresh notice of election in accordance with the Town Union Constitution for the purpose of electing an executive that will present the Claimant as the Eze-Elect and move the Community forward.” See Exhibit I attached to the motion for stay.
Of course, the trial Court had held in the Ruling refusing the motion for stay, filed on 26/7/17 at the Lower Court:
”that the 5th, 6th and 7th Defendants in the judgment now sought to be stayed have complied with the orders of this Court and there is nothing from the said 5th – 7th Defendants denying such assertion. Where that stands as I hereby accept to be the position, it becomes difficult, if not impossible, to contemplate a stay of a concluded action.” (See paragraphs 4 and 5 (page 7) of Exhibit 4 in support of the application).
Applicants did not raise any appeal against those findings and holding of the trial Court in 4. Exhibits A and B also show how the 6th Respondent complied with the said Court order. Having therefore already carried into effect the said order (in relief (f)), which Applicants would have wanted this Court to stay its execution, there is nothing left to stay. The Court cannot stop what has already been done, as that is not possible. See the Zenith Bank Plc Vs John (2015) 7 NWLR (Pt. 1458) 393, where my Lord Onnoghen JSC (now CJN) said:
”It is settled law that once an execution is completed, you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law which does nothing in vain
See also INEC Vs Mbonu (2018) LPELR 44018 (CA); INEC Vs Nwosu (2018) LPELR 44019 (CA).
I cannot see how Applicants can succeed, in the circumstances, that what they wanted to stop what had been done and completed.
Moreover, one cannot even talk of the establishment of special or exceptional circumstances by Appellants to justify, denying the successful party of right to enjoy the gains of his success in a judgment. See the case of Integration Nig. Ltd Vs Zumafon Ltd (2014) 288 LRCN 161; Vaswani Trading Co. Ltd Vs Savalakh (1972) 12 SC 77; Martins Vs Nicannar Food Company Ltd & Anor (1988) LPELR 1844 (SC), on the conditions needed to satisfy special or exceptional circumstances to stay execution of judgment, which the parties herein have agreed upon and pleaded. But Appellant could not have proved, in the circumstance of this case.
I also think an order recognizing the 1st Respondent as the Eze – Elect of a Community should not be toyed with or vacated, while the hostilities are yet to be settled by a final determination of the disputes. This is because that decision recognizing the Eze – Elect tends to vest the Eze – Elect with some authority over the Chiefdom to check anarchy in the community, while the case is pending. Somebody must have to hold the forte in the Community, pending the settlement of the disputes. And I think, prevalence of peace and civil order in the Community requires such interim measures, while the case is yet to be concluded. The trial Court was therefore right in my view. I cannot fault the trial Judge for vesting responsibility on 1st Respondent.
The application is therefore wholly devoid of merit and is hereby dismissed.
Applicants shall pay the cost of this application assessed at Thirty Thousand Naira (N30, 000.00) payable to the 1st Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
Appearances:
S.A. NJOKU; ESQ.For Appellant(s)
C.O.N. ANYIAM; ESQ.For Respondent(s)
