ENERGO NIGERIA LIMITED V. MR. JAMES OKPE
(2010)LCN/4223(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/A/33/M/2009
RATIO
APPLICATION FOR STAY OF EXECUTION: WHETHER THE GRANT OR REFUSAL OF AN APPLICATION FOR STAY OF EXECUTION IS WITHIN THE DISCRETION OF THE COURT
The grant or refusal of an application for stay of execution depends largely on the discretion of the court and like every other discretionary power it must be exercised judicially and judiciously. See Lijadu v. Lijadu (supra) at page 644. PER ABDU ABOKI, J.C.A.
APPLICATION FOR STAY OF EXECUTION: WHAT ARE SPECIAL OR EXCEPTIONAL CIRCUMSTANCES THAT WILL WARRANT APPLICATION FOR A STAY OF EXECUTION OF A JUDGMENT OR RULING OF A LOWER COURT
The principle of law is that a Judgment or Ruling of a court is presumed to be correct and rightly made until the contrary is proved or established. Therefore, the courts will not make the practice of depriving a successful litigant of the fruits of his success. Hence, an application for a stay of execution of a Judgment or Ruling of a lower Court will only be granted if this court is satisfied that there are special or exceptional circumstances to warrant doing so. See N.I.P.S.S. v. Osigwe (2008) 6 NWLR Pt. 1083 page 239 at 241; Ajomale v. Yaduat (No.2) (1991) 5 NWLR Pt.191 page 266 at 291; Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR Pt. 74 page 75; Shodeinde v. Trustee in Islam (1980) 2 SC 165; Vaswani Trading Co. Ltd. v. Savalakh & Ors (1972) 12 SC 77. Special or exceptional circumstances have been held severally by our Courts to exist where execution would: a. Destroy the subject matter of the proceedings; or b. Foist upon the appellate Court a situation of complete helplessness; or c. Paralyze in one way or the other the exercise of the litigant of his constitutional right to appeal; or d. Generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the appellate Court, there could be no return to the status quo, See Ijaodola v. Regd. T. C. & S.C.M. (2008) 15 NWLR Pt.1110 page 387 at 409 – 10: Enabulele v. Agbonlahor (1994) 5 NWLR Pt.342 page 112; Ajomale v. Yaduat (No.2) (1991) 15 NWLR Pt. 190 page 257; Vaswani Trading Co. v. Savalakh & Co. (supra) at page 77. Further on what the Court will consider in an application for stay of execution particularly in money judgment, this Court per Sankey JCA in Ijaodola v. Regd. T.C. & S.C.M. (supra) held thus: “…. A money judgment is not usually perishable or subject to deterioration or destruction, therefore special circumstances have to be shown why such should be stayed. The applicants have not alleged that they are hamstrung in paying the sum of the damages awarded due to impecuniosities, neither have they alleged that paying such an amount will make them incapable of prosecuting the appeal, nor do they state that it would render the appeal nugatory or would in any statement of account, lists of assets and liabilities or any material whatsoever has been placed before the court to enable it exercise its discretion judiciously concerning this award.” PER ABDU ABOKI, J.C.A.
WHETHER THE FACT THAT THE NOTICE AND GROUNDS OF APPEAL OF AN APPLICANT IN AN APPLICATION FOR STAY OF EXECUTION DISCLOSES ARGUABLE GROUNDS OF APPEAL WILL NOT AUTOMATICALLY ENTITLE THE GRANT OF SAME PARTICULARLY WHERE THE RES IS MONEY
It is trite that the fact that the Notice and Grounds of Appeal of an Applicant in an application of this nature discloses arguable Grounds of Appeal do not automatically entitle the grant of same particularly where the res is money. See Fasel Services & Anor v. N.P.A & Anor. (2001) 11 NWLR Pt. 723 page 35 at 41; FCMB v. AIB (Nig.) Plc. (2000) 8 NWLR Pt. 667 page 42 at 52. PER ABDU ABOKI, J.C.A.
Before Their Lordships
MARY U. PETER-ODILIJustice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
ABDU ABOKIJustice of The Court of Appeal of Nigeria
Between
ENERGO NIGERIA LIMITEDAppellant(s)
AND
MR. JAMES OKPERespondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Ruling): The Applicant’s Motion on Notice dated the 9th day of February, 2009 and filed on the same date was brought pursuant to order 7 Rule 3 of the court of Appeal Rules, 2007 and under the inherent Jurisdiction of this court for an order staying the execution of the Judgment delivered by Hon. Justice U. A. Inyang of the High court of the Federal Capital Territory, Abuja on Friday 30th March, 2007 pending the determination of the Appeal filed by the Applicant against the said Judgment.
The application is supported by an eighteen paragraph affidavit sworn to by one Mr. Jubril Mohammed, the personnel/Administrative Manager of the Applicant Company on 9th February, 2009. The Applicant also filed a further and better affidavit sworn to by Hycinth Enwefa Esq. its counsel on 8th June, 2009 and a further and better affidavit with four annexure – Exhibits HE-1, HE-2, HE-3 and HE-4.
The background facts leading to this application is that the Plaintiff/Respondent herein instituted an action at the lower court against Defendant/Applicant herein for a declaration confirming his employment and for the sum of N390,971.00 (Three Hundred and Ninety Thousand Nine Hundred and Seventy One Naira) as his accrued allowances and entitlement.
In defence, the Defendant/Applicant filed a Statement of Defence denied employing the plaintiff and also stated therein that it engaged subcontractors who were independent in the execution of the contract.
The Learned trial Judge delivered Judgment in favour of the Plaintiff/Respondent and the Defendant being dissatisfied with the decision of the lower court has appealed against the said decision upon the Grounds set out in paragraph 3 of the Notice of Appeal, Exhibit HE-1; whilst its application for stay of the said Judgment was refused by the lower court, hence this application.
The Respondent filed on 11th March, 2009 a counter-affidavit dated same date to this application necessitating this court to order that the parties file written addresses. The Applicant’s written address dated 20th January, 2010 and filed same date is deemed filed on 25th January, 2010. The Respondent also filed on 25th January, 2010 a written address dated, 22nd January, 2010.
In the Applicant’s written address, a lone issue was formulated for the determination of this application and it reads:
“Whether in the circumstances of this case, this honourable Court will exercise its discretion in favour of the Applicant for a stay of the execution of the Judgment delivered by the lower Court on Friday, the 30th day of March, 2007 pending the determination of the Appeal filed therein.”
The Respondent in his written address formulated three issues as follows:
“1. Whether an application for stay of execution of judgment is granted as a matter of course or upon established principles.
2. Whether the Applicant has satisfied the principles/conditions to be entitled to a favourable exercise of the discretion of the Court.
3. Whether in the present circumstance, it will serve the interest of justice and the equity of the instant case to grant the Applicant’s prayer.”
I have carefully perused the issues raised by both parties. It is my opinion that the lone issue as formulated by the Applicant is capable of determining this application and I adopt same accordingly.
On the issue, learned counsel for the Applicant Hycinth Enwefa submitted that in an application for stay of execution of judgment, the Court is exposed to two competing rights of the parties. He maintained that the first one is the right of the successful party to reap the total benefit of his success in the litigation while the second is the need to preserve the res pending the determination of the Appeal so that if the Appeal is successful, it should not be rendered nugatory.
Learned counsel submitted therefore that in determining the competing right of the parties, the court must invoke the discretionary jurisdiction not only judicially but also judiciously. He referred to the case of Magnusson v. Koiki (1991) 4 NWLR Pt. 183 page 128.
Hycinth Enwefa maintained that it is settled law that a court of law will be disposed to granting an application for stay of execution of judgment in special or exceptional circumstances and that the Applicant has clearly (sic) this stated in Paragraphs 6, 8, 9, 10 & 11 of the supporting affidavit and the annexure.
He pointed out that from the totality of the averments contained therein in the supporting affidavit and the annexure, the court would observe that the Applicant has placed before it sufficient materials for the exercise of the court’s discretion to grant the relief being sought as the evidence has clearly shown that the Grounds set out in paragraph 3 of the Notice of Appeal, Exhibit HE-1 raised arguable and recondite issue of law for the consideration of this court.
Hycinth Enwefa submitted that a refusal of an application for a stay of execution of the said judgment would foist upon this court a situation of complete helplessness and render the Appeal nugatory if successful. He referred the court to cases of Registered Trustees of Amorc V Awoniyi (1991)3 NWLR Pt 178 page 245, Lijadu V Lijadu (1991) 1 NWLR Pt 169 pg 627.
Learned counsel further submitted that the Rules of this court enjoins it to make an order for stay of execution of judgment where the lower court refuses the same and that this is the purport order 7 rule 3 of the court of Appeal Rules 2007. He maintained that this is to give room for the Judgment debtor to explore the possibility for further remedies in the prosecution of the Appeal. Hycinth Enwefa submitted that the Judgment sought to be stayed is a monetary Judgment and that as a general rule, in a monetary Judgment the only ground for a stay of execution is an affidavit showing that if the Judgment sum is paid there is no reasonable probability of getting it back if the Appeal succeeds.
He maintained that the fact that the Judgment creditor will be unable to repay where the Appeal against the Judgment raises substantial grounds is a special circumstance for the grant of stay of Judgment and referred to the case of Guinea Insurance Plc. v. Monarch Holdings Ltd. (1996) 3 NWLR Pt.436 page 365 at 370.
Learned counsel for the Applicant pointed out that in the instant case the Respondent by his evidence in the course of the trial at the lower court is unemployed, that the Respondent deposed in his counter-affidavit that he is employed but willfully failed to state the name of his employer and how much he is earning.
He also maintained that the Respondent’ counter-affidavit did not show that the Respondent is able to refund the Judgment debt in the case the appeal succeeds.
Learned counsel argued that it is trite law that he who comes to equity must come with clean hands and that in this regard the Applicant has made frank disclosure of its financial position; that it is a going concern and capable of paying the Judgment sum in the event the Appeal did not succeed.
Learned counsel for the Applicant further submitted that the reasons given by the Applicant in its affidavit in support are special circumstances for the grant of the stay sought.
Hycinth Enwefa pointed out that the Respondent in opposition filed a 19 paragraphed counter-affidavit. He submitted that the totality of the averments contained in the said counter-affidavit is misconceived and that the same should be discountenanced by the Court.
He argued that the Respondent in paragraph 14 of the said affidavit deposed to the fact that he is employed but willfully failed to state the name of his employer and how much he is earning. Learned counsel submitted that the disposition, with respect, is an unreasonable answer to the deposition of the Applicant that the Respondent has no job and not capable of paying the Judgment sum if the Appeal succeeds.
Hycinth Enwefa also pointed out that the Respondent by paragraph 15 of his counter-affidavit said that the Judgment sum ought to be paid into an account in compliance with the Ruling of the lower Court of 30th January 2009 refusing their application for a stay of the said Judgment of 30th March 2007.
Learned counsel for the Applicant submitted that payment of the Judgment sum into an account is absolutely unjustifiable considering the circumstances of this case which this court will rightly observe on the scrutiny of the said Judgment of 30th March, 2007 and the Ruling of 30th January, 2009.
He maintained that paying the said Judgment sum into an account will amount to unnecessary locking up of funds which prima facie, the respondent is not entitled.
Hycinth Enwefa argued that the Respondent in paragraph 16 of the counter-affidavit deposed to the fact that the Applicant is not diligent in the prosecution of the Appeal and submitted that in this regard the deposition is misconceived and unfounded in that the Applicant has done everything possible in the prosecution of the Appeal in this case.
Learned Counsel maintained that the Applicant has filed a Notice of Appeal and an application for the amendment of same on the receipt of a copy of the judgment from the lower court after about two years of delivery of same contrary to the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
He also stated that the Applicant has paid the fees for the compilation of the Records of Appeal and that same has been compiled and served on the Respondent.
Learned Counsel urged the Court to discountenance the averments contained in the Respondent’s counter-affidavit in the regard as same is totally misconceived. He further urged this Honourable Court to grant their prayers in the interest of justice.
In his response, Learned Counsel for the Respondent Chigbo Nwachukwu, submitted that although the Courts of law in Nigeria, by their institutional and jurisdictional set up operate both the principles of common law and doctrines of equity, a party urging the Court to invoke its equitable jurisdiction in his favour, when seeking an equitable remedy must satisfy the Court by averring to convincing facts articulated by law why the particular equitable remedy should be granted. He referred the Court to the case of Sentinel Assurance Co. Ltd v. Societe General Bank (Nig) Ltd (1992) 2 NWLR Pt. 224 page 495 at 496
He stated that, indisputably, stay of execution of Judgment pending Appeal is a discretionary remedy and that the Courts of justice are obliged to exercise such discretion both judicially and judiciously. He referred the Court to the cases of Vaswani Trading Co v. Savalakh & Company (1972) 12 S.C. page 53;
Sunmonu v. M. Oladokun (1991) 4 NWLR Pt .186 page 502;
Justine Anyaogu & Ors v. Our Line Limited (1993) 4 NWLR Pt. 289 page 607;
Owena Bank (Nig) Plc v. O.B.C. Limited (1998) 9 NWLR Pt. 564 page 130;
Oparaugo v. Oparaugo (2008) 5 NWLR pt.1081 page 579;
Comex Ltd. v. N.A.B. Ltd (1997) 3 NWLR Pt. 496 page 648.
He submitted that the Applicant has failed woefully to establish any special or exceptional circumstances to warrant this Court exercising its discretion in its favour taking cognizance of the clear legal position and principles on stay of execution. Learned Counsel referred the Court to the case of Ijaodola v. Registered Trustees of S & C Church Movement (2008) 15 NWLR Pt.1110 page 387 at 391.
Chigbo Nwachukwu submitted that since the grant of a stay of execution is and exception to the rule, the Respondent in the instant application should not be deprived of the fruits of the Judgment given in his favour by the lower Court.
He maintained that the Applicant on the other hand has an overriding duty to prove to the satisfaction of the Court that the application for a stay of execution should be granted and that the res if not preserved will be in danger of destruction.
Learned referred the Court to the case of Sentinel Assurance Co. Ltd v. S.G.B.N. Ltd (supra)
He also referred the Court to the case of Anyaogu v. Our Line Ltd, (supra) where the Supreme Court lucidly enumerated what constitutes special circumstances in an application for a stay of execution.
Learned Counsel submitted that the Applicant has not shown how the payment of the Judgment sum into a special interest-yielding account to be opened by the chief Registrar of the lower court would occasion or create any of the situation adjudged special or exceptional. He referred the court to the case of Denton- West V. Muoma (2008) 6 NWLR Pt 1083 page 424.
Chigbo Nwachukwu drew the Court’s attention to the fact that the Judgment sought to be stayed in the instant application is a monetary Judgment.
He referred the Court to the case of Monarch Holdings Ltd v. Guinea Insurance Plc. (1996) 1 R.M.L.R. Pt.1 page 195 at 196 and maintained that a stay of execution in a case of monetary Judgment would only be granted if it is shown in the affidavit that there is no reasonable possibility of getting back the money if Appeal succeeds, in addition to the fact that the Appeal involves substantial point of law for determination.
Chigbo Nwachukwu maintained that, assuming but not conceding that there exist substantial and arguable Grounds of Appeal, there is nothing in the Applicant’s affidavit disclosing any difficulty or impossibility of getting back the Judgment sum if paid into a special interest-yielding account as ordered by the lower Court.
Learned Counsel for the Respondent submitted that it is abundantly clear that the Applicant’s affidavit in support of the present application has not deposed to any substantial reasons, neither does the Applicant’s written submission contain such strong or substantial reasons, to warrant the Respondent being deprived of the fruits of his Judgment given by the lower Court.
He maintained that the Applicant has failed completely to satisfy the requisite principles or conditions that would entitle it to a favourable exercise of this Court’s discretion and urged the Court to so hold.
Chigbo Nwachukwu further submitted that the Applicant seeks to invoke equitable jurisdiction and he called the court’s attention to the following equitable principles which are gerrnane and relevant to determining the instant application:
a) Equity aids the vigilant not the indolence;
b) Delay defeats Equity:
c) Equality is Equity; and
d) He who comes to Equity must come with clean hands.
Learned Counsel for the Respondent referred the Court to paragraphs 15(d) and 16 of the Respondent’s counter-affidavit wherein it was deposed that the instant application was brought mala fides by the Applicant/Judgment Debtor merely to frustrate the Respondent/Judgment creditor from reaping the fruits of his victory at the lower court and want of commitment on the part of the Applicant to diligently prosecute the Appeal.
He maintained that the equity of the case and the conduct of the Applicant are relevant considerations in an application of this nature and referred to Ijaodola v. Registered Trustees of S & C Church Movement (supra).
As regards the attitude of the Applicant, learned counsel referred the court to its last proceedings in this appellate suit, especially as it concerns the present application. He maintained that on 29th June, 2009 this Court ordered the Applicant to file and serve its written address in support of this motion within fourteen 14 days, to enable the Respondent file and serve its written address in reply within the succeeding fourteen 14 days and the court then adjourned this Appeal to 25th January, 2010 for hearing of motion.
Learned Counsel submitted that unfortunately, the Applicant filed and served the Respondent with their written submission in support of this motion at about 2.30pm on 21st January, 2010 barely two working days to the hearing of the instant motion.
He maintained that it has become obvious that all the Judgment Debtor/Applicant’s scheming is to subtly engage the machinery of law, with delay tactics to frustrate the Judgment Creditor/Respondent’s efforts to reap the fruits of his Judgment handed down by the lower Court.
Chigbo Nwachukwu submitted that the position of law and equity on stay of execution of final judgment has not changed; its principles are trite and well established; that the Applicant here having not satisfied the condition precedent or requisite principles does not deserve or entitled to a favourable exercise of this Honourable Court’s discretion.
He further submitted that the Applicant has failed to show good faith in bringing and prosecuting the instant application. Learned counsel urged the Court to dismiss this application being unmeritorious, vexatious, frivolous, and mischievous with substantial cost against the Applicant.
A careful perusal of this application shows that it is an application for an order staying execution of the Judgment of the lower court delivered on the 30th day of March, 2007. The Applicant/Appellant had first made the application to the lower court and the lower court by its Ruling delivered on 30th January 2009 refused it. By virtue of the provisions of order 7 Rule 3 of the court of Appeal Rules, 2007, this court has jurisdiction to entertain applications of this nature where such an application has been made to the lower court and it refuses to grant it. See Denton-West v. Muoma (supra) at page 438.
The grant or refusal of an application for stay of execution depends largely on the discretion of the court and like every other discretionary power it must be exercised judicially and judiciously. See Lijadu v. Lijadu (supra) at page 644.
Thus, the crux of this application therefore is whether considering the circumstances of the case, this court will exercise its discretion in favour of the Applicant for a stay of execution of the judgment of the lower Court.
The principle of law is that a Judgment or Ruling of a court is presumed to be correct and rightly made until the contrary is proved or established. Therefore, the courts will not make the practice of depriving a successful litigant of the fruits of his success. Hence, an application for a stay of execution of a Judgment or Ruling of a lower Court will only be granted if this court is satisfied that there are special or exceptional circumstances to warrant doing so. See
N.I.P.S.S. v. Osigwe (2008) 6 NWLR Pt. 1083 page 239 at 241;
Ajomale v. Yaduat (No.2) (1991) 5 NWLR Pt.191 page 266 at 291;
Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR Pt. 74 page 75;
Shodeinde v. Trustee in Islam (1980) 2 SC 165;
Vaswani Trading Co. Ltd. v. Savalakh & Ors (1972) 12 SC 77.
Special or exceptional circumstances have been held severally by our Courts to exist where execution would:
a. Destroy the subject matter of the proceedings; or
b. Foist upon the appellate Court a situation of complete helplessness; or
c. Paralyze in one way or the other the exercise of the litigant of his constitutional right to appeal; or
d. Generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the appellate Court, there could be no return to the status quo, See
Ijaodola v. Regd. T. C. & S.C.M. (2008) 15 NWLR Pt.1110 page 387 at 409 – 10:
Enabulele v. Agbonlahor (1994) 5 NWLR Pt.342 page 112;
Ajomale v. Yaduat (No.2) (1991) 15 NWLR Pt. 190 page 257;
Vaswani Trading Co. v. Savalakh & Co. (supra) at page 77.
Further on what the Court will consider in an application for stay of execution particularly in money judgment, this Court per Sankey JCA in Ijaodola v. Regd. T.C. & S.C.M. (supra) held thus:
“…. A money judgment is not usually perishable or subject to deterioration or destruction, therefore special circumstances have to be shown why such should be stayed. The applicants have not alleged that they are hamstrung in paying the sum of the damages awarded due to impecuniosities, neither have they alleged that paying such an amount will make them incapable of prosecuting the appeal, nor do they state that it would render the appeal nugatory or would in any statement of account, lists of assets and liabilities or any material whatsoever has been placed before the court to enable it exercise its discretion judiciously concerning this award.”
In the instant case, I am of the opinion that this court would only exercise its discretion to grant this application if and only if the Applicant has made out in their affidavit evidence before this court some special or exceptional circumstance(s).
Paragraphs 12 – 15 of the Applicant’s affidavit in support are pertinent and they are hereby reproduced as follows:
“12. The Applicant is a reputable and buoyant company who can pay judgment debt in the event that the appeal fails.
13. The Respondent is of no fixed address, not credit worthy and has no job at the moment and will certainly leave the jurisdiction of the Honourable Court once he receives the judgment sum. This will create a situation in which the appeal if successful will be rendered nugatory as the money will have been spent and the Respondent absconded.
14. I am further informed by Hycinth Enwefo Esq. of Counsel and I verily believe that;
a. unless the Honourable Court grants a stay of execution of the said judgment the res would be destroyed as the money will no longer be available for refund to the applicant in the event the applicant succeed on appeal and this will render nugatory whatever decision may be made (sic) the Court of Appeal.
b. it is in the interest of justice to stay the execution of the said judgment in this case as to do otherwise would foist upon the court of Appeal a situation of complete helplessness and render the appeal nugatory if successful.
15. The trial court by its ruling of 30th January 2009 refused the application for stay of execution of the said judgment hence this application.”
Paragraph 15 of the Respondent’s counter-affidavit is also pertinent and is reproduced as follows:
“15. That I was further informed by Nwachukwu Chigbo Esq. of counsel and I verily believe him of the following:
a. That the lower court in refusing the Applicant’s Motion for stay of execution of judgment by its ruling of 30th January 2009, ordered that the applicant/judgment debtor should pay the judgment sum into a special and interest yielding account to be opened by the Chief Registrar of the High Court of Justice, F.C.T, Abuja.
b. That the Applicant’s compliance with the Order of the lower court shall not in any way adversely affect or destroy the Res since the security of the judgment sum when paid into a special account as ordered by the lower court is fully guaranteed.
c. That the Respondent/Judgment creditor which instituted this matter in the lower court on the 3rd day of November 2007 to get judgment will be highly prejudiced by an order of stay of execution being prayed for by the Applicant.
d. That the entire appeal and the instant application was brought malafide by the Applicant/Judgment Debtor merely to frustrate the Respondent/Judgment creditor from reaping the fruits of his victory at the court below.
e. That the execution of the judgment of the lower court by lodging the judgment sum in a special account to be opened by the chief Registrar of the High Court of Justice, FCT, Abuja, will best serve the interest of justice in this case,
f. That the execution of the judgment pursuant to the Order of the lower court made in its ruling of 30th January 2009 will preserve the Res and sufficiently protect the respective and competing rights of parties to the instant appeal.
g. That the said execution of the judgment will not in any way prejudice the pending appeal or render nugatory the outcome thereof, and cannot by whatever means foist on this appellate court a situation of utter hopelessness.
h. That there is nothing before this Honourable Court palpable, substantial or compelling to warrant this Court’s interference with the exercise of discretion by the lower court in refusing the applicant’s application for stay of execution of judgment sum paid into a special account. ”
The Applicant averred that unless this court grants this application, the Res i.e. the Judgment sum would be destroyed as the money will no longer be available for refund to the Applicant in the event it succeeds on Appeal and that this will render nugatory whatever decision that may be made by this Court.
Conversely, the Respondent averred that the lower court in refusing the Applicant’s Motion for stay of execution of its Judgment by its Ruling of 30th January, 2009, ordered the Applicant to pay the Judgment sum into a special and interest yielding account to be opened by the chief Registrar of the lower court. This uncontroverted averment of the Respondent emanated from the Ruling of the lower Court i.e. Exhibit HE – 4 particularity page 29 which reads:
“…..I make an order that the judgment debt in the substantive Suit be paid into a special and interest yielding account to be opened by the Chief Registrar of this Court for that purpose. This is in consonance with the provisions of Order 45 Rule 2(2) of the Rules of this Court, 2004.”
I am of the opinion that the Applicant has not shown this court how the payment of the Judgment sum into a special interest yielding account to be opened by the chief Registrar of the lower court would create any of the situations adjudged special or exceptional circumstance legally required to enable this Court exercise its discretion in its favour,
Learned Counsel for the Applicant in his submission stated that the Grounds set out in Paragraph 3 of their Notice of Appeal, Exhibit HE-1 raised arguable and recondite issue of law for the consideration of this Court.
It is trite that the fact that the Notice and Grounds of Appeal of an Applicant in an application of this nature discloses arguable Grounds of Appeal do not automatically entitle the grant of same particularly where the res is money. See Fasel Services & Anor v. N.P.A & Anor. (2001) 11 NWLR Pt. 723 page 35 at 41; FCMB v. AIB (Nig.) Plc. (2000) 8 NWLR Pt. 667 page 42 at 52.
This issue is resolved in favour of the Respondent. The Application is unmeritorious and is hereby dismissed whilst the Ruling of the lower Court delivered on 30th January 2009 is hereby affirmed. I shall make no order as to Costs.
MARY U. PETER-ODILI, J.C.A: I had the opportunity of reading the draft Ruling of my learned brother Abdu Aboki JCA. I agree with the decision and the reasonings therefrom, I have nothing more to add.
JIMI OLUKAYODE BADA, J.C.A: I read before now the lead Ruling of my learned brother ABDU ABOKI, JCA, just delivered and I agree entirely with the reasons given therein and the conclusion reached.
It is also my view that the application lacks merit and it is dismissed by me.
Appearances
H. EnwefaFor Appellant
AND
Chigbo NwachukwuFor Respondent
