CHIEF JOSEPH AKINBINU AKINNAWO V. CHIEF LISADOKO JOHN OROTUSIN
(2013)LCN/6393(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2013
CA/B/46/2009
RATIO
WHETHER AN APPEALATE COURT MAY INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
It is settled and well defined that an appellate Court will not interfere with the exercise of discretion by a trial Court or substitute its own discretion unless: –
(a) the exercise of the discretion was based on wrong or
(b) where no weight or insufficient weight was given to a relevant consideration;
(c) the trial Court acted under a misconception of law;
(d) the trial Court acted under a misapprehension of fact;
(e) where it is in the interest of justice to do so; and
(f) where the exercise was shown to be perverse or unreasonable.
See MOBIL OIL (NIG) LTD. V. FBIR (1977) 3 SC 53 and UKWU V. BUNGE (1997) 8 NWLR (Pt. 518) 527. PER ALI ABUBAKAR B. GUMEL, J.C.A.
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
CHIEF JOSEPH AKINBINU AKINNAWO
(For himself and on behalf of Late Jomudoko Akinnawo family) Appellant(s)
AND
CHIEF LISADOKO JOHN OROTUSIN
(For himself and on behalf of Late Orotusin Family) Respondent(s)
ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Ondo State High Court, Ondo Judicial Division, delivered on 28th October, 2008 in Suit No. HOD/101/98.
The Appellant is the Plaintiff/Judgment Creditor in Suit No. HOD/101/98. In a judgment delivered on 30th June, 2008, the Appellant obtained judgment against the respondent, as the Defendant in that matter. In a notice of appeal dated and filed on 9th July, 2008, the Respondent herein appealed against the judgment of 30/6/2008.
Upon and subsequent to this notice of appeal, the Respondent herein as the Defendant/Judgment Debtor/Applicant, in a motion on notice dated 28th July, 2008 but filed on 29/7/2008 sought for an order of Court “staying” the judgment of the Court delivered by Odusola, J on the 30/06/08.
This application was supported by a 36 paragraph affidavit deposed to by the within named Defendant/Judgment Debtor/respondent. A number of copious documents were attached to this affidavit as exhibits A to H – H24. To oppose this motion, the within named Plaintiff/Judgment Creditor/Appellant deposed to and filed a 22 paragraph affidavit with Exhibits A to C attached, while the Judgment Debtor/Applicant filed a 26 paragraph further affidavit to join issues with the Judgment Creditor/Respondent.
Issues having been duly joined on the application, it proceeded to hearing wherefor the lower Court took the arguments and submissions of respective learned counsel. In his ruling the learned judge of the lower
Court, Kolawole, J., decided thus: –
“In conclusion, I believe that the application of the applicant is meritorious and ought to be granted and it is hereby granted. I therefore order stay of execution of the judgment of this Court delivered on the 30th of June, 2008 pending the determination of the appeal filed by the applicant at the Court of Appeal…”
The Plaintiff/Judgment Creditor was dissatisfied with the order of Kolawole, J. staying the execution of the judgment of Odusola, J. delivered on 30/06/08. He appealed to this Court in a notice of appeal dated and filed on 29/10/2008. This notice of appeal contains 7 grounds of appeal with their particulars.
To argue the appeal, learned counsel Mr. Awosunle filed a brief of argument dated 17/3/2011. The Respondent’s brief of argument was filed on 31/5/11 and deemed properly filed upon the order of extension of time made by this Court on 10th November, 2011 and the payment of default penalty made on 14th November, 2011.
Learned Counsel to the Appellant formulated and argued 4 issues for the determination of this appeal. They are: –
“(1) Whether the Lower Court was right when it granted a stay of Execution in favour of the respondent when a Stay of Execution was not expressly and explicitly sought. This issue relates to ground 7 of appeal.
(2) Whether there was a competent and valid appeal pending at the time the Lower Court granted the Stay of Execution. This issue relates to grounds 2 & 5 of appeal.
(3) Whether Exhibits A, B, C, D, E, F, G and H-H24 attached to the respondent’s affidavit in support were properly in evidence to justify the exercise of the Lower Court’s discretion in the grant of the Stay of Execution. This issue relates to Ground 6 of appeal.
(4) Whether the Lower Court exercised its discretion properly in granting a Stay of Execution in this Suit, This issue relates to grounds 3, 4 & 7 of appeal.”
Learned Counsel to the Respondent adopted the 4 issues formulated and argued by the Appellant for the determination of this appeal.
At the hearing of the appeal respective learned counsel adopted and relied on their briefs of argument. Thereafter, learned Counsel Mr. Awosunle for the Appellant urged on the Court to allow this appeal and set aside the ruling and order of the Lower Court granting order of stay of execution of judgment, while learned Counsel Mr. Akindugbagbe for the Respondent urged on the Court to dismiss the appeal and affirm the order granting stay of execution.
In arguing the 1st issue for determination, learned counsel set out the main prayer on the face of the motion of the Judgment Debtor/Respondent. He proceeded to focus on it and also laid out his grouse against it that it was not a relief that was in full con and therefore not capable of being granted. Against this background learned counsel faulted the approach of the learned trial judge in referring to paragraph 32 of the affidavit in support of the motion to make the necessary clarification or amendment to the relief as set out on the motion paper. Learned Counsel referred to the case of SALAWAL MOTOR HOUSE LTD. & ANOR V. S. B. LAWAL & ANOR FWLR (Pt.3) 517 at 524 and pointed out that it is the duty of Counsel to, on behalf of his client, draft and set out a relief properly. He added that where a relief sought by a party is nebulous or inelegantly couched, it is not the duty of the Court to re-phrase or amend it.
With respect to the circumstance of this appeal, learned counsel opined that there is no provision in the rules of the Lower Court allowing for an order to be made “staying judgment” without more. According to learned counsel granting an order for a stay of execution of judgment in this application was made without jurisdiction, because it was not a relief that was specifically sought by the Judgment Debtor/Applicant. He also added that all this is notwithstanding the attempt to make-over what was wrongly done ab initio and by resorting to paragraph 32 of the affidavit in support, or hiding under a pre that the Respondent to the application was not misled as to the nature of the relief actually being sought in the application.
In his response on behalf of the respondent, learned counsel began by conceding that it is not the duty of a Court of law to draft or re-frame a prayer on behalf of a party. He however was quick to add that where a Court has the jurisdiction to make an order, the fact that the power of the Court was differently invoked than that what was orthodox is no good reason for the order to be refused, According to learned Counsel the prayer is very clear on what it sought i.e. stay of execution of judgment. He added further that the fact that the word “execution” was misplaced could not have destroyed its overall objective.
Against the foregoing background, learned counsel maintained that the granting of the order for stay of execution of judgment could not have amounted to the Lower Court re-drafting the prayer on behalf of the applicant and argued that the principle in SALAWA MOTOR HOUSE LTD. V. LAWAL & ANOR. (Supra) relied on by learned counsel to the Appellant is totally inapplicable to the facts of this case. Learned counsel added further that the fact that the Lower Court believed that the order being sought was for stay of execution of judgment should not be a serious issue to canvass in an appeal. He urged on the Court to so hold and resolve this issue against the Appellant.
The order in contention in this appeal was couched in the following terms: –
“an order of Court staying the judgment of this Honourable Justice A.O. Odusola on the 30th day of June, 2008 pending the hearing and determination of the appeal lodge in the matter.”
In opposing the application at the Lower Court, learned Counsel Mr. Awosunle told the Court that this prayer cannot be granted because the application was for an order “staying judgment” and not the execution of judgment. He also added that a judgment cannot be stayed, only its execution can be stayed. Learned Counsel did not say more than that and cited no authority to support his objection to the con and terms of this relief.
In deciding this issue in his ruling the learned judge of the Lower Court observed and decided thus:
“The order sought is “an order of Court staying the judgment of this Honourable Court delivered by Honourable Justice A.O. Odusola on the 30th day of June, 2008, pending the hearing and determination of the appeal lodged in the matter.” There is no doubt that a more elegant drafting of the order is desirable; but can it be honestly contested that the meaning of the order sought is obfuscated? I was not misled at all. I believe the applicant is seeking the order of Court to stay the execution of the judgment delivered on 30th June, 2008 pending the determination of the appeal filed. Assuming the prayer in the body of the application is not so clear; the affidavit in support gives a clearer picture. Paragraph 32 of the affidavit is very clear. It states ‘That I urged the Court to stay the execution of the judgment in the suit pending the determination of this appeal. ‘This and other averments should have given the respondent the correct picture of what he was contending with. There is no doubt that from the tenor of the counter-affidavit and the submissions of learned counsel to the respondent, the respondent and his counsel were not misled at all. The slip magnified by Mr. Awosunle is incapable of incapacitating the application. The Court have moved away from the era when litigation is treated like hide and seek game and little mistakes which do not affect the justice of the case affect the outcome. Substantial justice is promoted now. See: KINFAU V. KINFAU (2006) 6 N.W.L.R. (pt. 975) 200 @ 214 H, SALAMI B. BUNGINIMI (1998) 9 N.W.L.R. (Pt. 565) 235 @ 243. – (See page 80 lines 10 to 28 record of appeal)
I have carefully considered the above remark and decision of the Lower Court. I am of the view that learned counsel Mr. Awosunle is on a firm foundation that the prayer for an order staying judgment was inelegantly drafted if it was meant to be for stay of execution of judgment, which it was. The learned trail judge believed that much. However, in an effort to make sense out of the relief, the learned judge resorted to paragraph 32 of the affidavit in support. This paragraph reads thus:
32 “That I urge the Court to stay the execution of the judgment in the suit pending the determination of this appeal.”
To the extent that this is a paragraph in an affidavit, it is worthless because the Evidence Act does not allow for an averment in an affidavit to be couched in the terms of a prayer, which indeed this one is. The learned trial judge ought not to have relied on an averment to clarify the terms of a prayer on a motion. If there were grounds to the application, it could have been resorted to as a lesser evil. The rules of practice envisage that every prayer in an application ought to be capable of being granted in terms.
This prayer on this application cannot be granted in terms. Granting it in terms will render it at large as it cannot hang on to any specific or particular judgment, say in what suit? In my view for a prayer to be proper in the circumstance of this application, the order sought in it must be in relation to a judgment in a particular case and the suit number of that case must find a place in that prayer.
However, be it as it may, this application is about the exercise of discretion. I will therefore, defer my decision on this issue until after a consideration of issue 4 for the determination of this appeal, in due course. In arguing his issue 2 learned counsel Mr. Awosunle, referred to paragraphs of the affidavit in support and some of the findings of the learned trial judge and tried to explain that the issue canvassed before the learned trial judge was the validity of an appeal filed on 20/10/2008 as at the date the motion for stay of execution of judgment was being argued. He maintained that as at that date, it was indisputable that the Judgment Debtor/Appellant had not fully compiled and transmitted the record of appeal pursuant to Order 8 rules 1, 4, 5, 10(3) and 18 of the then extant Court of Appeal Rules (2007). According to learned counsel, because rules of Court are meant to be complied with, non-compliance, by the Judgment Debtor/Appellant, with those rules was more than a mere irregularity. And because these are mandatory rules and to the extent that they were not complied with, learned counsel believed that it was erroneous for the Lower Court to hold that there was a valid and subsisting appeal at the date the application for stay of execution was being argued. While referring to the cases of MOBIL PRODUCING NIG. UNLTD V. MONOKPO (2001) FWLR (Pt. 49) 1516 at 1539 and OLUNLOYO V. ADEDIRAN (2001) 7 NSCQR 313 at 320 learned Counsel concluded the Lower Court fell into a grave error when it granted stay of execution in favour of the Judgment Debtor/Appellant when he did not have a valid pending appeal. He urged the Court to so hold and resolve this issue against the Respondent.
Against some basic introductory remarks, learned Counsel Mr. Akindugbagbe, for the Respondent explained further to the extent that his notice of appeal was filed on 9/7/2008 against a judgment delivered on 30/6/2008 he had a valid and competent appeal at the date the motion for stay of execution was being argued, While admitting that as at that date the Appellant (Judgment Debtor/Applicant) had not fully complied with Order 8 of the Court of Appeal requiring the compilation and transmission of record of appeal within certain number of days after the filing of notice of appeal, that alone or by itself cannot render his appeal invalid.
In resolving this, issue, I do not see any difficulty in holding that learned counsel Mr. Awosunle must have been laboring under a grave misconception in believing that an appeal in which all the record of appeal had not been compiled and transmitted to the Appellate Court within the main prescribed window and threshold periods, without more, would remain invalid and incompetent. It cannot be. It is not unusual for Counsel to a Respondent to an appeal to apply for an appeal to be dismissed in limine for want of diligent prosecution where there is a manifest or protracted and wanton delay in the compilation and transmission of record of appeal, Mr. Awosunle, of counsel did not show to the Lower Court that he had availed himself of this well-known step in Appellate adjudicatory process. Added to this, the learned trial judge had no power or jurisdiction to pronounce on the validity or competence of a notice of appeal because records of appeal had not been compiled and transmitted, I therefore, in the circumstance fully agree with all the arguments, suggestions and submissions of Mr. Akindugbagbe on this issue and hold that there was a valid and subsisting appeal at the date the motion for stay of execution was argued, because the appellant had manifested a very clear and genuine intention to appeal against the judgment of 30/06/2008. I uphold all the findings of the Lower Court in that behalf in resolving this issue against the appellant.
I wish to go to issue 4 before I come back to issue 3, if need be. In arguing his issue 4, learned counsel outlined the steps taken by the learned trial judge up to his decision that the grounds of appeal in the notice of appeal attached to the application disclosed an arguable appeal. Upon his consideration of all the steps, learned counsel argued that the learned trial judge was wrong because the Judgment Creditor/Respondent/Appellant by paragraphs 9, 10, 11 and 12 of the counter affidavit had made out a case against the grant of the application. Also, the finding of the Lower Court that that balance of hardship was in favour of the Judgment Debtor came under a severe attack by learned counsel.
According to Mr. Awosunle, an adjudged owner has more legal and equitable right to possession than an adjudged trespasser. He then wondered why a stay of execution would be used to stifle an owner in favour of an adjudged trespasser. He referred to a number of cases and submitted that a stay of execution ought not to have been granted in the circumstance of this case. He urged the Court to so hold and resolve this issue against the Respondent.
In his response learned counsel to the Respondent referred to the case of OLAIYA V. OLAIYA (2002) 4-6 NSCQR 676 at 688 where the Supreme Court held that an Appellate Court ought not to reverse the decision of a Lower Court unless it is clear that it was perverse or erroneous and based on a misapplication of law to the facts of a matter. He urged the Court to uphold the findings of the Lower Court and the granting of the order for stay of execution.
It is the duty of every Court to ensure that a successful party is not denied the fruit of his victory unless there are compelling reasons to warrant doing so. In granting a judgment debtor the relief of stay of execution, the Court must strive to maintain a balance between the need to have the successful party enjoy the fruit of his victory and at the same time to ensure that the unsuccessful party who had appealed would not be incapacitated as not to pursue his legitimate constitutionally guaranteed right to appeal against the judgment. The Court must consider if there were any special or exceptional circumstance that would warrant the order for stay of execution to be made.
In granting the order for stay of execution, the Lower Court was exercising its discretion upon its understanding of the materials placed before it. It is correct and I agree with the learned trial judge that there were enough materials to consider to decide whether or not to grant the relief. But could the exercise of its discretion to treat the application as it did said to have been done judicially and judiciously? The basic yardstick here is that the exercise of a Court’s discretion must be based on a sound and sensible judgment with a view to doing justice to the parties. A proper exercise of discretion must also involve the Court acting only on the strength of the materials and evidence brought before it by the parties. To have exercised a discretion judicially and judiciously a Court of law must use all the available materials before it, and in this con, the affidavit evidence and come to the conclusion which it thinks will satisfy or meet the justice of the case. Discretion is not well exercised when it was based on the sentiments of the judge or premeditated ideas on the matter which are completely outside the dictates of either the enabling law, guiding principles, adduced credible facts of the matter and good judgment as the case may be. Learned Counsel Mr. Awosunle had consistently argued that an order for stay of execution ought not to have been granted in this matter and had urged on this Court to set it aside. This appears to be a challenge to the exercise of the discretion of the Lower Court and an invitation to this Court to interfere with that exercise.
It is settled and well defined that an appellate Court will not interfere with the exercise of discretion by a trial Court or substitute its own discretion unless: –
(a) the exercise of the discretion was based on wrong or
(b) where no weight or insufficient weight was given to a relevant consideration;
(c) the trial Court acted under a misconception of law;
(d) the trial Court acted under a misapprehension of fact;
(e) where it is in the interest of justice to do so; and
(f) where the exercise was shown to be perverse or unreasonable.
See MOBIL OIL (NIG) LTD. V. FBIR (1977) 3 SC 53 and UKWU V. BUNGE (1997) 8 NWLR (Pt. 518) 527.
With respect to the instant appeal, and its peculiar facts and circumstances against all the stated guiding principles outlined above, I am of the view that the Lower Court exercised its discretion judicially and judiciously because I believe that it adequately had before it sufficient materials on which it came to the conclusion to grant the prayer for stay of execution of judgment. I have seen no good reason to fault the steps taken on the application. I cannot see any finding that I would consider perverse or unreasonable. It would therefore, not be proper for this Court to interfere with the exercise of discretion of the Lower Court.
With respect to issue one above, though I have found that the prayer for stay of execution was badly couched and the learned trial judge was wrong to have considered paragraph 32 of the affidavit in support to cure the manifest defect in the prayer, I must also emphasise that it is not every error of a Lower Court that would lead to its decision being set aside. I consider the circumstances of this appeal as one in which this principle of adjudication should be applied. I would therefore resolve both issues 1 and 4 against the Appellant. Having resolved issues 1, 2 and 4 against the Appellant this appeal ought to be allowed and is hereby allowed. Having allowed the appeal, I do not see any good reason to go into a determination and resolution of issue 3 as it has become merely academic to do so.
The ruling of Kolawole, J delivered in Suit No HOD/101/98 on 28/10/2008 is hereby affirmed. I order for N50,000 costs against the Appellant in favour of the Respondent.
PRONOUNCEMENT BY ALI ABUBAKAR B. GUMEL, J.C.A.: My learned brother Kekere-Ekun, JCA (as he then was) Presided over the Panel that heard this appeal. He also presided over and participated at the conference leading to the judgment just delivered. He agrees that this appeal be dismissed and to abide by all the consequential orders, including the order for costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in draft before now the lead judgment just delivered by my learned brother ALI A GUMEL, JCA and I totally agree with his reasoning and conclusion thereon.
I too shall dismiss the appeal and it is so dismissed for lacking in merit.
Appearances
Mr. Bade AwosunleFor Appellant
AND
Mr. Yomi AkindugbagbeFor Respondent
