CHIEF JAMES ADEBAYO OYEWUSI & ORS. v. GOVERNOR OF OYO STATE & ORS. (2012)

CHIEF JAMES ADEBAYO OYEWUSI & ORS. v. GOVERNOR OF OYO STATE & ORS.

(2012)LCN/5340(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of April, 2012

CA/I/24/09

RATIO

JUDGMENT: NATURE OF AN APPLICATION FOR A STAY OF EXECUTION OF A JUDGMENT PENDING APPEAL

Undoubtedly, an application for a stay of execution of a judgment pending the resolution of an appeal against the judgment is a discretionary equitable remedy calling for judicious and judicial or honest exercise of the discretion of the court handling the application.

The matter was well put by the High Court of the then Northern Region of Nigeria (Reed, Ag. S. P. J.) in the case of the Chairman of The Board of Inland Revenue v. Joseph Rezcallah & Sons Ltd, (1961) N.R.N.L.R. 32 at 37 –

“Lord Halsbury, L. C., said in Sharp v. Wakefield (1891) AC 173 at 179 –

“‘Discretion’ means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke’s case 5 Rep. 100, a; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself: Wilson v. Rastall 4 T. R. at page 757.”

In Oyeyemi & Ors. v. Irewole Local Govt. & Ors. (1993) 1 NWLR (Pt.270) 452 at 477, the Supreme Court amplified the scope of ‘discretion’ thus –

“For as the celebrated Coke Well said in Rooke’s case (supra) judicial discretion is

“…a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.”

Compliance with rules, reason, and forensic logic are therefore but handmaids for a proper exercise of a judicial discretion, indeed justice”

As held by the Supreme Court in Odusote v. Odusote (1971) 1 ALL NLR 219 at 222 –

“For, in matters of discretion, no one Case can be authority for another; and “the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion” – Per Kay L. J., in Jenkins v. Bushby (1891) 1 Ch. 484 at P.495.”

“I also believe that the clear principle discernable from many decided cases is that unless this court (or the Court of Appeal) comes to the conclusion that the exercise of it was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice, it cannot interfere, even if it might have exercised the discretion differently if the discretion were that of this Court (or the Court of Appeal). See on this; The University of Lagos & Anor. v. C.I.O. Olaniyan & Ors. (1985) 1 NWLR (Pt.1) 155- P.I, University of Lagos & Anor. v. M. I. Aigoro (1985) NWLR (Pt.1) 143; John Akujobi Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt. 88) 257 at p. 160 and so many other cases”

In addition, the Supreme Court held in Enekebe v. Enekebe & Anor. (1964) N.S.C.C. 72 at 75-76-

“The discretion conferred on the trial judge is unfettered, but there is a right of appeal, and, to quote from Lord Simon’s speech in Blunt v. Blunt (above at P. 526):-

“If it can be shown that court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached because the court’s discretion will have been exercised on wrong or inadequate materials, but, as was recently pointed in this House in another connexion in Charles Osenton v. Johnston (1942) A.C. 130, 138:

“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reached the clear conclusion that there was a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations…then the reversal of the order on appeal may be justified.”

…In Holland v. Holland (1918) p. 273, Swinfen Eady M. R. defined only the issue that can be raised in the Court of Appeal in challenge of the exercise of the … judge’s discretion thus:

“The question for consideration by this court is whether his judgment is erroneous, and not whether we should have exercised the discretion in the same manner as the judge below did. There is no appeal from his discretion to our discretion, and the appellant is not entitled to succeed unless the judgment is erroneous.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUDGMENT: CONDITIONS FOR AN ORDER FOR STAY OF EXECUTION

The refusal of the prayer for unconditional stay of execution of a judgment does not, in my considered view, preclude the court from, in an appropriate case, issuing an order for conditional stay of execution of the judgment as the former is wider in scope from which the latter is carved, so it cannot be right for the appellants to contend that by issuing the order for conditional stay of the money judgment, the court below granted unsolicited prayer to run foul of the settled position of the law adumbrated in the string of cases cited on the point (supra) in the appellants’ brief that parties and the court are bound by the prayers on the motion paper and, the court cannot stray outside the said prayers by granting to a party what was not specifically prayed for on the motion paper, For clarity see Order 46 Rule 2 (2) of the rules of the court below as follows –

“An order for stay may be made subject to such conditions, as shall appear just, including the deposit in court of any money adjudged due to any party in the judgment appealed from.”

See also Obaro v. Dantata & Sawoe Construction Co Ltd. (1997) 10 NWLR (Pt. 525) 675 at 691 as follows:-

“I disagree with the submission of learned counsel for appellant that the court is not Father Christmas and cannot grant or award a relief that was not asked for. The argument is not only irrelevant it is equally not apt. The conditional order of stay of execution made by the trial court, is supported by the provisions of Order 46 rule 2 (2) of the trial court’s civil procedure rules recited earlier in this judgment. It is clear from the enactment that the trial court in its absolute discretion can order a conditional or unconditional stay once it is satisfied with the excuse or exceptional circumstance canvassed by the applicant. In other words, in my respectful opinion, an applicant for a stay of execution does not have to ask for the variants of the relief separately.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

CHIEF JAMES ADEBAYO OYEWUSI & ORS. Appellant(s)

AND

1. GOVERNOR OF OYO STATE
2. ATTORNEY GENERAL OF OYO STATE
3. OBA SUNDAY OLAGBAMI (ONPETU OF IJERU) Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Judgment): A stay of execution of a judgment of the High Court of Justice of Oyo State holding at Ogbomosho (the court below) was granted by that court on 18.7.2008 pending the determination of an appeal against the award of title to a disputed parcel of land located at Ogbomosho Farm settlement in Ogbomosho, Oyo State and general damages of N500,000 in favour of the present appellants against the 3rd respondent.
In granting the application for stay of its judgment the court below ordered at pages 163-164 of the record of appeal, (the record) –
”The Judgment Creditor/Respondents are restrained from tampering with the existing structure of the appellant/applicant, his privies and assigns on the land which is the subject matter of the appeal pending the determination of the appeal filed by the judgment Debtor/Applicant against the judgment of this court delivered on 7th March, 2007. The status quo on these structures must be maintained by the parties.
The applicant shall pay the adjudged sum of N500,000 into an interest yielding account in a reputable bank within jurisdiction to be opened by the Registrar of the court pending the hearing and final determination of the appeal lodged by him.
The applicant shall give an undertaking to pay damages to the Judgment Creditor/Respondents for any damages that they may be proved to have resulted from the grant of the 1st leg of the application if it is later found to have been wrongly granted.
However in the interest of justice the order of stay granted in respect of the 1st leg of the application may be discharged if the Applicant is found wanting in the prosecution of the appeal and the adjudged sum to be paid into the bank shall be ordered to be paid back to the Respondents.”
Naturally, the present appellants were aggrieved by the Ruling and appealed against it in an original notice of appeal which was by order of the Court amended. The amended notice of appeal with seven grounds of appeal was filed on 22.4.09. Briefs were exchanged between the appellants and the 3rd respondent. The 1st – 2nd respondents did not file any brief of argument. By an order of the court granted on 7.2.2011, the appellants were allowed to argue the appeal on the appellants’ brief and the 3rd respondent’s brief.
The appellants earmarked two issues for determination on the appeal worded thus –
“(i) Whether the appellant disclosed any exceptional or special circumstances to justify the grant of stay of the monetary judgment awarded against him by the lower court.
(ii) Whether the 3rd respondent who was adjudged a trespasser can be granted an order for stay of execution in order to maintain the status quo”
The appellants prefaced their submissions with reference to the cases of Okafor v. Nnaife (2002) FWLR (Pt.134) 504 at 606-607, Okin Biscuits v. Oshe (2003) 5 NWLR (Pt.709) 369 at 372-372, Okon v. Bolingo Hotels Ltd. (2004) ALL FWLR (Pt.214) 70 at 84, Vaswani Trading Co. v. Savalakh & Co. (2000) FWLR (Pt.28) 2174 at 2180 or (1972) ANLR 922 at 926, Balogun v. Balogun (1969) ALL NWLR (?) 341, Progress Bank v. Ok Contract (1998) 2 NWLR (Pt. 532) 45, Annot Lyle (1886) 11 PD 114 at 116, SFLK (Nig.) Ltd. v. Intercontinental Bank Ltd. (2004) ALL FWLR (Pt.206) 485, Kosofe Local Govt. v. Demuren (2002) FWLR (Pt.131) 1852 at 1867, Akibu v. Oduntan (1986) 1 NWLR (Pt.171) 1 at 13 and Babatunde v. Olatunji (2000) 2 NWLR (Pt.464) 557 at 568 to contend that a successful party is entitled to enjoy the fruit of his judgment unless there are exceptional or special circumstances shown by the judgment debtor that the subject-matter of the appeal is endangered to the extent of rendering the outcome of the substantive appeal nugatory or academic by reducing it to an empty shell of litigation leaving the appellant empty – handed in the event the appellant wins the appeal, in which case a stay of the judgment may be made pending the determination of the appeal.
The appellants argued on the first issue that the 3rd respondent did not make full and accurate disclosure of his statement of account or economic/financial capacity, nor did the 3rd respondent pray in his motion paper for conditional stay of the money judgment, consequently the court below should not have granted a conditional stay of the money judgment of N500,000 by directing the 3rd respondent to deposit the said sum of money in an interest yielding account to be managed by the Registrar of the court below pending the outcome of the appeal when the 3rd respondent did not establish exceptional or special circumstances, nor asked for such an order to warrant a grant of it by the court below citing in support the cases of Sirpi v. Alu Steel Construction (Nig) Ltd. (2000) 3 NWLR (Pt.644) 229 at 239, Chikwu v. Onyia (1986) 2 NWLR (PT. 130) 80.
Arguments on the second issue for determination ranged along the line that the judgment awarding the disputed piece of ground to the appellants is executory and/or declaratory defying the remedy of stay of execution, nor did the 3rd respondent establish the piece of land in question would perish before the appeal is determined, nor was it shown by the 3rd respondent that the disputed area of land was facing imminent destruction, consequently it was wrong for the court below to stay the judgment in respect of the disputed piece of land in favour of the 3rd respondent who was adjudged a trespasser on the land by the court below and was not entitled to continue his acts of trespass by remaining on the land to the detriment of the appellants that won the land suit vide Okafor v. Nnaife (supra) at 615, Okoya v. Santili (1986) 2 NWLR (Pt.131) 132 at 138, Government of Gongola State v. Tukur (1986) 2 NWLR (Pt. 117) 592, Awoniyi v. Registered Trustees AMORC (2000) FWLR (Pt.25) 1597 at 1617 – 1618, Nnoli v. Offodile (2005) ALL FWLR (Pt.254) 960. Fatoyinbo v. Osadeyi (2002) FWLR (Pt.110) 1770, Strauss v. Strauss (1866) LR 123, Gamu v. Hausa (2006) ALL FWLR (Pt.293) 384, JAMB v. Nkeiruka (2007) ALL FWLR (Pt. 381) 1780 Buraimoh v. Akande (2000) FWLR (Pt.79) 1423, ARC v. Fassassi (No.3) (1987) 3 NWLR (Pt.59) 37, Akibu v. Oduntan (supra) at 13 and Otiki v. Bahjeson (2000) FWLR (Pt.27) 2036 at 2045; upon which it was urged that the appeal be allowed.
The 3rd respondent’s undated brief of argument was filed on 15.7.09. Two issues were distilled therein for determination on the appeal thus-
“3.2 Whether the learned trial judge having refused to grant the unconditional stay of execution of the monetary judgment, was right in holding that:
The Applicant shall pay the adjudged sum of N500,000.00 into an interest yielding account in a reputable bank within jurisdiction to be opened by the Registrar of the Court pending the hearing and final determination of the appeal lodged by him.”
3.3 Whether the learned judge of the lower court was right to have granted the relief contained in prayer 1 of the 3rd respondent application dated 12th March, 2008 when she held that:
“…the judgment Creditors/Respondents are restrained from tempering with the existing structure of the
Appellant/Applicant, his privies and assigns on the land which is the subject matter of the appeal pending the determination of the appeal filed by the judgment Debtor/Applicant against the judgment of this court delivered on 7th March 2007. The status quo on these structures must be maintained by the parties.”
The 3rd respondent brief argued that by the inherent powers of the court below under Section 6(i), (5)(e) and 6(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, the court below was right to make the order under the omnibus prayer in the motion for the judgment debt of N500,000,00 to be deposited in an interest yielding account pending the determination of the appeal, as the said order maintained the balance between the competing interest of the parties and was made judiciously and judicially within the discretionary powers of the court below, consequently he said order which was just and fair should not be disturbed by the Court vide Okon v. Bolingo Hotels (2004) All FWLR (Pt.214) 70 at 84.
The respondent brief argued on the second issue that the order for a stay did not restrain the appellants from entering the disputed land which they occupied immediately after the judgment of the court below but was restricted to a restraint on the appellants from tampering with the 3rd respondent’s existing structures on the land by way of demolition of same by the appellants, therefore the interim preservative order for the existing structures of the 3rd respondent not to be destroyed by the appellants was rightly made by the court below for the purpose of protecting the existing structures in the interest of the integrity of the pending appeal which should not be rendered useless in the event the existing structures are destroyed and it turns out the appellants lose the appeal vide Governor of Kwara State v. Ojibara (2005) ALL FWLR (Pt.267) 1545 at 1553 – 54, Vaswani Trading Co. v. Savalakh & Co. (2000) FWLR (Pt.28) 2174 at 2180, therefore the appeal should be dismissed.
In my considered view, the issues for determination couched by the appellants are apt for the determination of the appeal and same shall be followed in the consideration of the appeal. Undoubtedly, an application for a stay of execution of a judgment pending the resolution of an appeal against the judgment is a discretionary equitable remedy calling for judicious and judicial or honest exercise of the discretion of the court handling the application.
The matter was well put by the High Court of the then Northern Region of Nigeria (Reed, Ag. S. P. J.) in the case of the Chairman of The Board of Inland Revenue v. Joseph Rezcallah & Sons Ltd, (1961) N.R.N.L.R. 32 at 37 –
“Lord Halsbury, L. C., said in Sharp v. Wakefield (1891) AC 173 at 179 –
“‘Discretion’ means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke’s case 5 Rep. 100, a; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself: Wilson v. Rastall 4 T. R. at page 757.”
In Oyeyemi & Ors. v. Irewole Local Govt. & Ors. (1993) 1 NWLR (Pt.270) 452 at 477, the Supreme Court amplified the scope of ‘discretion’ thus –
“For as the celebrated Coke Well said in Rooke’s case (supra) judicial discretion is
“…a science of understanding, to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.”
Compliance with rules, reason, and forensic logic are therefore but handmaids for a proper exercise of a judicial discretion, indeed justice”
As held by the Supreme Court in Odusote v. Odusote (1971) 1 ALL NLR 219 at 222 –
“For, in matters of discretion, no one Case can be authority for another; and “the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion” – Per Kay L. J., in Jenkins v. Bushby (1891) 1 Ch. 484 at P.495.”

An appeal court is cautious, slow or reluctant to substitute its opinion on the materials before the court below in place of the discretion exercised by the court below over the materials except it is satisfactorily established that the court below acted capriciously or arbitrarily in exercising its discretionary powers – See Imonikhe v. Attorney-General (1992) 2 N.S.C.C. 480 at where Nnaemeka-Agu, J.S.C., (now of blessed memory) stated in the lead judgment –
“I also believe that the clear principle discernable from many decided cases is that unless this court (or the Court of Appeal) comes to the conclusion that the exercise of it was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice, it cannot interfere, even if it might have exercised the discretion differently if the discretion were that of this Court (or the Court of Appeal). See on this; The University of Lagos & Anor. v. C.I.O. Olaniyan & Ors. (1985) 1 NWLR (Pt.1) 155- P.I, University of Lagos & Anor. v. M. I. Aigoro (1985) NWLR (Pt.1) 143; John Akujobi Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt. 88) 257 at p. 160 and so many other cases”
In addition, the Supreme Court held in Enekebe v. Enekebe & Anor. (1964) N.S.C.C. 72 at 75-76-
“The discretion conferred on the trial judge is unfettered, but there is a right of appeal, and, to quote from Lord Simon’s speech in Blunt v. Blunt (above at P. 526):-
“If it can be shown that court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached because the court’s discretion will have been exercised on wrong or inadequate materials, but, as was recently pointed in this House in another connexion in Charles Osenton v. Johnston (1942) A.C. 130, 138:
“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reached the clear conclusion that there was a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations…then the reversal of the order on appeal may be justified.”
…In Holland v. Holland (1918) p. 273, Swinfen Eady M. R. defined only the issue that can be raised in the Court of Appeal in challenge of the exercise of the … judge’s discretion thus:
“The question for consideration by this court is whether his judgment is erroneous, and not whether we should have exercised the discretion in the same manner as the judge below did. There is no appeal from his discretion to our discretion, and the appellant is not entitled to succeed unless the judgment is erroneous.”
The stage having been set above, it is now apposite or convenient to consider whether the court below in exercising its discretion to grant stay of its judgment acted erroneously. The notice of motion filed in the court below on 13.3.08 at pages 41-42 of the record had prayed for –
“1. AN ORDER staying the execution of the judgment of this Honourable Court delivered on the 7th day of March, 2007 by directing the judgment Creditor/Respondents not to tamper with the existing structures of the Appellant/Applicant, privies and assigns on the land against the said judgment pending the hearing and final determination of the appeal lodged against same.
2. AN UNCONDITIONAL stay of the execution of the monetary judgment of this Honourable Court delivered on the 7th day of March, 2007 pending the hearing and determination of the appeal lodge(?) against the said judgment.
3…
4. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance of this application.”
In granting prayer (1) supra, the court below confined itself to the terms of the prayer. It avoided granting a blanket stay in respect of the bare land. If it had done otherwise, its order would have offended the established principle of law that a successful party to a piece of litigation should not be deprived of the fruit of his victory. From the state of the affidavit evidence in the court below, the appellants are presently enjoying the bare land which is not perishable and cannot attract an order for stay of execution See Fatoyinbo v. Osadeyi (supra) cited in the appellants’ brief.
Nor can it be said with any measure of assurance that the order of the court below staying its judgment in respect of the 3rd respondent’s structures on the land amounted to giving the 3rd respondent, an adjudged trespasser, the right to continue enjoying and/or devastating the bare ground of the disputed piece of land, as to call into operation Buraimoh (supra), Akibu (supra) ARC v. Fassassi (supra) Okafor v. Nnaife (supra) and Otiki (supra) cited in the appellants’ brief.
Also, apart from the declaratory reliefs granted by the court below in respect of the ownership of the disputed land in favour of the appellants, a permanent injunctive order was made against the respondents in page 89 of the record thus –
“An injunction is hereby granted restraining the Defendants by themselves, their agents, servants and or privies or otherwise howsoever from interfering or further interfering with the plaintiffs possession and enjoyment of the land and from further trespassing to the land.”
The injunctive order (supra) is not a declaratory order, therefore, whilst the declaratory orders regarding the ownership of the disputed piece of ground cannot be subject to an order for stay of execution and, were, in fairness to the court below, not stayed by that court in line with cases of Okoya v, Santili (supra), Government of Gongola State v. Tukur (supra), Awoniyi v. Registered Trustees AMORC (supra), the court below preserved only the existing structures of the 3rd respondent which were on the disputed land before the commencement of legal hostilities between the parties in the suit in the court below.
In my respectful opinion, buildings or structures on a piece of land are liable to waste – destruction, disrepair, depreciation or devastation. It was thus balanced justice, good sense and level playing ground for the court below to issue an order protecting and preserving the 3rd respondent’s structures on the disputed land without encroaching on the right of the appellants to run the bare land pending the determination of the substantive appeal.
Admittedly, the 3rd respondent’s structures on the disputed land stood the potential risk of exposure to waste or destruction/demolition unless safeguarded by a formal order of the court below in the interest of the integrity of the pending substantive appeal which the court below, rightly in my view, issued in order to preserve the perishable res of the appeal – the 3rd respondent’s structures pending the outcome of the substantive appeal. By so doing, the court below took the precautionary measure of preventing or averting the appeal from being nugatory or futile such that in the event the appellants in the main appeal win the appeal, the 3rd respondent’s structures will be met in the way they were left at the time of the delivery of judgment by the court below. I hold on the issue of the order staying the execution of the judgment of the court below by the court below in respect of the 3rd respondent’s structures on the disputed land that the said order is not erroneous and cannot be set aside and /or quashed – See the lead case of Vaswani Trading Co. V. Savalakh (supra) cited in the appellants’ brief.
Prayer (2) of the motion paper (supra) asked for unconditional stay of execution of the judgment debt of N500,000. The court below refused the prayer at pages 163 and 164 of the record in these unedited words:
“It is clear in this application that the applicant has failed to show any special or exceptional circumstances why the unconditional stay of the monetary judgment of this court of 7th March, 2007 must be granted pending the determination of the appeal filed by him must be granted. The 2nd leg of the application is therefore refused …
The Applicant shall pay the adjudged sum of N500,000 into an interest yielding account in a reputable bank within jurisdiction to be opened by the Registrar of the court pending the hearing and final determination of the appeal lodged by him….
However in the interest of justice the order for stay granted in respect of the 1st leg of the application may be discharged if the applicant is found wanting in the prosecution of the appeal and the adjudged sum to be paid into the bank shall be ordered to be paid back to the Respondents.’,
The refusal of the prayer for unconditional stay of execution of a judgment does not, in my considered view, preclude the court from, in an appropriate case, issuing an order for conditional stay of execution of the judgment as the former is wider in scope from which the latter is carved, so it cannot be right for the appellants to contend that by issuing the order for conditional stay of the money judgment, the court below granted unsolicited prayer to run foul of the settled position of the law adumbrated in the string of cases cited on the point (supra) in the appellants’ brief that parties and the court are bound by the prayers on the motion paper and, the court cannot stray outside the said prayers by granting to a party what was not specifically prayed for on the motion paper, For clarity see Order 46 Rule 2 (2) of the rules of the court below as follows –
“An order for stay may be made subject to such conditions, as shall appear just, including the deposit in court of any money adjudged due to any party in the judgment appealed from.”
See also Obaro v. Dantata & Sawoe Construction Co Ltd. (1997) 10 NWLR (Pt. 525) 675 at 691 as follows:-
“I disagree with the submission of learned counsel for appellant that the court is not Father Christmas and cannot grant or award a relief that was not asked for. The argument is not only irrelevant it is equally not apt. The conditional order of stay of execution made by the trial court, is supported by the provisions of Order 46 rule 2 (2) of the trial court’s civil procedure rules recited earlier in this judgment. It is clear from the enactment that the trial court in its absolute discretion can order a conditional or unconditional stay once it is satisfied with the excuse or exceptional circumstance canvassed by the applicant. In other words, in my respectful opinion, an applicant for a stay of execution does not have to ask for the variants of the relief separately.”The key issue is whether it was an appropriate occasion for the court below, after refusing the specific prayer for unconditional stay, to grant conditional stay in the manner it did. By ordering the 3rd respondent to deposit the judgment debt in an interest yielding account with a reputable bank, a vote of no confidence, if I may put so, was cast on the appellants’ economic viability to refund the judgment debt in the event it is paid to them and the judgment is eventually reversed on appeal, when there was no tangible evidence showing the appellants lacked the resources to refund the judgment debt, nor was it shown both parties were on financial keel and/or their respective economic position was at par in respect of the judgment awarding the judgment debt. There was therefore paucity of evidence to back the order.
The discretion to order the judgment debt to be kept in a bank account was, with deference to the court below, based on the whim and caprice or notion of the court below. In other words, the discretion was arbitrarily exercised and/or not exercised judiciously and judicially by the court below – See Obaro (supra) at page 689 as follows –
”…The only excuse advanced for seeking the relief was considered by the learned trial Judge who was clearly not impressed by the respondent…The respondent has not appealed against this finding therefore it subsists. The learned trial court having found as set out…, ought to have refused the application for stay of execution because the finding tantamount to the parties and issue not being in status quo ante bellum to warrant the issue abiding the outcome of the legal issues.”
To have denied the appellants access to the judgment debt and at the same time unilaterally chose that it be deposited with a bank regardless of the particular investment the appellants would have wanted to put the judgment debt seems to me inequitable, as the 3rd respondent did not establish any special or exceptional case to attract the order for the judgment debt of N500,000 to be deposited in a bank account pending the determination of the appeal. The court below was, therefore, in error in the circumstances of the case, to make the said order – See Obaro (supra) at pages 690 and 693 –
“Clearly, the learned trial Judge, respectfully did not only quibbled but also blunder. Order 46 rule 2 sub-rule (2) of the High Court of the Federal Capital Territory (Civil Procedure) Rules No. 56 of 1989 does not set out the exceptional circumstances or grounds under which a stay of execution can be granted. The order cited in support of the decision of the court stipulates the procedure for bringing an application for stay of execution and court discretion to either grant or refuse same and where court is mindful of granting a stay of execution the nature of stay it could grant, whether conditional or otherwise. Order 46 rule 2 sub-rule (2) reads as follows –
“(2) An order for stay may be made subject to such conditions, as shall appear just, including the deposit in court of any money adjudged due to any party in the judgment appealed from,”
The learned trial Judge, in the circumstance of this case, would appreciate that it is not just to look up the fund to which the appellant is prima facie entitled to after he had carefully weighed the competiting interests of the parties and found that the only ground on which the appellant’s case rested crumbled like a pack of cards. The discretion of the court would be exercised in favour of respondent herein only where there is exceptional circumstance justifying the exercise of the power because a successful litigant is entitled to the fruits of his victory and a stay of execution would not be granted if the result of granting it would operate to deny or deprive such a party of the fruits of his success. That is the justice of this case any other thing is arbitrary or unjust. The respondent woefully failed to show that it was entitled to a stay of execution. I agree with learned counsel for appellant that the court can only exercise its discretion on materials properly placed before the court, See Williams v. Hope Rising Voluntary Society (1982) 2 S.C.
145,152 where Idigbe, J.S.C. quotes with approval the dictum of Edmund Davies L. J., in the case of Revici v. Prentice Hall Incorporated & Others (1969) 1 All E. R. 772,774 that “Prima facie if no excuse is offered no indulgence should be granted”It is apt, at this stage, to commend to the learned trial Judge the admonition of Esq. J.S.C., that –
“a stay of execution is never to be used as substitute for obtaining the judgment which the trial court has denied him.” See Nnaife’s case (supra) at 138.”
The respondent herein did not contend in the trial court that the appellant is impecunious and he would be unable to refund the judgment debt in event of the appeal succeeding.
…The respondent also did not show any “special” or “Exceptional Circumstances” that the balance of justice is obviously weighed in favour of a stay. It was also never suggested that if the judgment debt was paid to the appellant that there was any probability that it might be difficult or impossible to recover it if the appeal succeeds. On the other hand, the appellant in his Counter-Affidavit stated that he is an architect of 10 years standing and that if the appeal succeeds that he would have no difficulty in refunding the judgment debt if same is paid to him before the determination of the appeal.” (My emphasis.)
Consequently, I find merit in the appeal respecting the order of the court below that the judgment debt be deposited with a bank pending the determination of the appeal. I allow the appeal in part and hereby set aside the said order directing the judgment debt of N500,00 to be deposited in a bank account and dismiss the 3rd respondent’s prayer for the stay of execution of the judgment debt of N500,000 in the court below. No order as to costs as the appeal succeeded in part only.

ADZIRA GANA, MSHELIA, J.C.A.: I have had the opportunity of reading before now the lead judgment of my learned brother, IKYEGH J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal succeeds in part. I also allow the appeal in part and abide by the consequential orders contained therein in the lead judgment, including the order on cost.

MODUPE FASANMI, J.C.A.: I have had the privilege of reading the lead judgment of my learned brother IKYEGH J.C.A.
I agree entirely with him that the appeal succeeds in respect of the order of the court below that the judgment debt be deposited with a bank pending the determination of the appeal. I allow the appeal in part and dismiss the 3rd Respondent’s prayer for the stay of execution of the judgment debt of N500,000.00k in the court below. I abide by the order made on costs.

Appearances

Mr. K. Sobaloju (with Messrs R. Agbanyi and B. Fabunmi)For Appellant

AND

Mr. O. E. OgunniranFor Respondent