FAKEHINDE & ORS v. OLUYEDE
(2022)LCN/16550(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Monday, April 04, 2022
CA/EK/14/2018(R)
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
1. MR. ANTHONY FAKEHINDE 2. ELDER BAMIDELE AKINTAYO 3. MR. SANNI LAZEEZ 4. MR. GOKE OLATUNJI 5. DR. ADEDAPO TADE APPELANT(S)
And
OBA OLUYEDE (For Himself And On Behalf Of The Oluyede Family Of Ado Ekiti) RESPONDENT(S)
RATIO:
A JUDGMENT THAT IS EXECUTORY SHOULD HAVE NO HINDRANCE FROM THE DELIVERY OF THE JUDGMENT TO THE EFFECTING OF THE ORDERS OF THE COURT
It must not be lost sight of all these as the root of it that for a party to obtain a stay of execution of a judgment against a successful adversary, he must show substantial reasons to justify the denial of that successful party of the fruit of his judgment by the Court. To put it differently is to emphasise that a judgment that is executory should have no hindrance from the delivery of the judgment to the effecting of the order or orders of Court emanating therefrom. A basic rule and sacrosanct to restrain the immediate execution of that judgment some exceptional circumstances or unique occurrence must exist to hold back the hand of the Court. See the case of BALOGUN v. BALOGUN (1969) ALL NLR 341.
It is however, trite Law as agreed by both the parties in this application that the grant or refusal of stay of execution of judgment by the Court is purely discretionary though the discretion must be exercised judicially and judiciously, but certainly not arbitrarily. See the case of OKAFOR & ORS v. NNAIFE (1987) 4 NWLR (PT. 64) 129.
The conditions precedent to grant a stay of execution have been led in plethora of judicial authorities. It is no doubt settled Law that for stay of execution of judgment pending appeal when sought before a Court is never granted as matter of course. It must be pointed out that in granting same, the equal right of the parties to justice must be considered. ABDUL-AZEEZ WAZIRI, J.C.A.
ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgment): By Motion on Notice dated the 1/12/2021 but filed on the 2/12/2021 brought pursuant to Order 6 of the Court of Appeal Rules 2016 (as amended), Section 15 of the Court of Appeal Act 2010 and under the inherent jurisdiction of this Honourable Court the 5th Appellant/Applicant Dr. Adedapo Tade sought the following reliefs from this Honourable Court thus:-
1. AN ORDER of this Honourable Court setting aside the sealing of the Ade Tade Hospital Limited’s premises/ execution of the judgment of this Honourable Court delivered on 23rd September, 2020 which sealing/ execution were came out at the said Ade Tade Hospital Limited lying and situate at Okebola Street Ado-Ekiti on 1st December, 2021 by the Respondent and bailiff of Court of 1st instance or lower Court.
2. AN ORDER of this Honourable Court ordering the Respondent and bailiff of the lower Court to return the properties of Ade Tade Hospital Limited carted away by the Respondent and bailiff of the lower Court on 1st December, 2021.
3. AN ORDER of this Honourable Court staying further execution of judgment in this matter pending the hearing and determination of the substantive matter at the Supreme Court between the Appellants and the Respondent.
AND for such further and other orders as the Honourable Court may deem fit to make in the circumstances.
The motion is predicated on six grounds as contained on the face of the Motion Paper. In support of the motion is a 13 paragraphed affidavit deposed to by the Applicant himself. The affidavit has Exhibits P, Q, R, S and T respectively.
In compliance with the Rules of this Honourable Court the Applicant filed a Written Address in support of the Motion on Notice.
In opposing the Motion on Notice the Respondent filed a Counter-Affidavit duly deposed to by himself dated and filed on the 7/2/22 consisting of 25 paragraphs deemed on the 16/2/2022. The Counter-Affidavit is accompanied with a Written Address.
Consequent to this, the fifth Applicant filed a Further and Better Affidavit on the 24/2/22 with Exhibits U, U1, V and N attached thereto alongside a Written Reply on points of law deemed as properly filed and served on the 9/3/2022. The 5th Respondent reacted by filing a Further and Better Counter-Affidavit on the11th of March, 2022 consisting of 25 paragraphs with Exhibits A, B and C alongside a Written Address.
When the Motion came up for hearing, the respective Learned Counsel adopted and placed reliance on their affidavits, Exhibits and written Addresses in urging us to grant/refuse to grant the Motion on Notice. Those are the affidavit evidence placed before this Honourable Court by the line of divide. I have given due consideration to the Legion of Judicial Authorities Cited by the contending parties.
It must not be lost sight of all these as the root of it that for a party to obtain a stay of execution of a judgment against a successful adversary, he must show substantial reasons to justify the denial of that successful party of the fruit of his judgment by the Court. To put it differently is to emphasise that a judgment that is executory should have no hindrance from the delivery of the judgment to the effecting of the order or orders of Court emanating therefrom. A basic rule and sacrosanct to restrain the immediate execution of that judgment some exceptional circumstances or unique occurrence must exist to hold back the hand of the Court. See the case of BALOGUN v. BALOGUN (1969) ALL NLR 341.
It is however, trite Law as agreed by both the parties in this application that the grant or refusal of stay of execution of judgment by the Court is purely discretionary though the discretion must be exercised judicially and judiciously, but certainly not arbitrarily. See the case of OKAFOR & ORS v. NNAIFE (1987) 4 NWLR (PT. 64) 129.
The conditions precedent to grant a stay of execution have been led in plethora of judicial authorities. It is no doubt settled Law that for stay of execution of judgment pending appeal when sought before a Court is never granted as matter of course. It must be pointed out that in granting same, the equal right of the parties to justice must be considered.
I cannot but state that it is clear from the authorities that the existence of a valid appeal against the judgment the execution of which is sought to be stayed pending the appeal is a “sine quo non” for the grant of the relief. See the cases of SPDC NIGERIA LTD v. AMADI (2011) LPELR-3204 (SC); DICKSON OGUNSEINDE VIRYA FARMS LTD v. SOCIETE GENERALE BANK LTD (2018) LPELR-43710 (SC) wherein the Supreme Court dwelling on the issue as to whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal per Ogunbiyi, JSC stated thus:
“It is trite and a well established general principle of Law that stay of execution will not be entertained unless an appeal has been lodged. See the cases of NDLEA v. OKORODUDU (1997) 3 NWLR (PT. 492) 221 FATOYINBO v. OSADEYI (2002) 5 SC (PT. 11) 1. In other words, the jurisdiction to stay the execution of a judgment can only be exercised pending a valid appeal.
By Order 1 Rule 5 of the Rules of this Honourable Court “Appeal” means the filing of Notice of Appeal and includes an application for Leave to appeal.”
In the instant application, the Appellants including the 5th Appellant/ Applicant have filed a Notice of Appeal on the 16/7/2021 as evidenced by Exhibit “P”. So it is not in dispute, it compiled with Order 1 Rule 5 of the Rules of this Honourable Court as rightly submitted by Learned Counsel to the 5th Appellant / Applicant. It is also important to point out that the essence of an order of stay of execution is to maintain the status quo ante in order to ensure that the Res which is the subject matter of the appeal is not destroyed to render the Appeal nugatory and foist upon the Court of Appeal complete helplessness or paralyse in one way or the other the exercise by the litigant of his constitutional right of Appeal or generally provided a situation in which whatever happens to the case and in particular even if the case succeeds in the Supreme Court there can be no return to the status quo.
It is only in respect of monetary judgments that Courts rarely grant stay of execution.
From the affidavit evidence placed before us, I find and hold that the application has tinge of merit and perforce must be granted. The issue is resolved against the Respondent.
Consequently, it is hereby ordered as follows:
1. The sealing of the Ade Tade Hospital Limited premises/ execution of the said judgment of this Honourable Court delivered on 23rd September, 2020 carried out at the said Ade Tade Hospital Limited lying and situate at Okebola Street Ado-Ekiti on 1st December, 2021 by the Respondent and bailiff of the lower Court is hereby set aside forthwith pending the Appeal before the Supreme Court.
2. The Respondent and the bailiff of the Lower Court are hereby ordered to return back the properties of Ade Tade Hospital carted away on 1st December, 2021.
3. It is ordered that No further execution of the judgment of this Court should be made pending the hearing and determination of the substantive matter at the Supreme Court between the Appellants and the Respondent.
4. These orders must be complied with and same be served on the Respondent and the bailiff of the lower Court.
Each of the parties to bear their costs.
Application succeeds.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree with the reasoning and conclusion of my learned friend ABDUL-AZEEZ WAZIRI (JCA). I abide by the consequential orders therein.
Appearances:
Taiwo Martins Ogunmoroti, with him, Ayantunde Adeleke, Oluwaseun Oyebanji, Oluwasayo Fagbohun, Olumide Olowolafe and Taiwo Ogunmoroti & Co. For Appellant(s)
O.R. Agbede, Esq. For Respondent(s)
