GOVERNOR OF OYO STATE & ANOR. v. CHIEF AKIN AKINYEMI
On Wednesday, the 6th day of March, 2002
- GOVERNOR OF OYO STATE
2. ATTORNEY-GENERAL OF OYO STATE Appellant(s)
CHIEF AKIN AKINYEMI
(Trading under the name and style of Akinyemi and Associates) Respondent(s)
ADEKEYE, J.C.A. (Delivering the Lead Ruling): During court session on the 24th of January, 2002, Mr. Ishola, Director Civil Litigation – Ministry of Justice, Oyo State, moved that an order for stay of execution of the judgment delivered by this court in appeal No. CA/1/12/2000 on the 7th of December, 2000, be granted pending the determination of the appeal lodged against the judgment at the Supreme Court. The enabling statutes are section 18 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, and rules, 3(1) of the Court of Appeal Rules 1981 as amended.
The application is supported by 20 paragraphs affidavit and 8 paragraphs further and better affidavit. Documents attached as exhibits include the judgment on appeal to the Supreme Court, notice of appeal, an affidavit sworn to by the respondent pursuant to Order 23 rule 1 of the High Court (Civil Procedure) Rules, 1988, bond entered by the appellant in the sum of N14, 350,000.00, motion filed on 3/1/2002 to discharge the order made in the garnishee proceeding before the trial court.
The respondent filed a 17-paragraph counter-affidavit to oppose the application for stay. In his argument, Mr. Ishola (DCL) relied on all the facts deposed to and now to serve as evidence to be relied upon by this court. He drew attention of court to ground three of the appeal- which is on the issue of lack of jurisdiction of the court to entertain the suit ab initio. Clause II of the agreement between the parties (exhibit F) makes provision that where there is any dispute between the parties same shall be referred to arbitration. The learned counsel maintained that the issue of jurisdiction can be raised at any stage even for the first time in the Supreme Court. He referred to the cases of Martins v. Nicannar Food Co. Ltd. & Anor. (1988) 2 NWLR (Pt. 74) p.75; Ogun State Housing Corporation v. Ogunsola (2000) 14 NWLR (Pt. 687) p. 431 at 444.
By way of reply to the submission of Mr. Akeredolu (SAN) appearing for the respondent, Mr. Ishola mentioned that motion for stay was filed and served on the respondent on 27/12/2001. The order nisi in the garnishee proceedings filed by the respondent was served on the applicant on 28/12/2001. The applicant filed before the lower court on 3/1/2002 motion for an order to discharge or vacate the garnishee order made on 13/12/2001 or in the alternative stay of the ruling delivered in the garnishee proceedings pending the determination of the appeal filed against the judgment of the Court of Appeal in appeal No. CA/1/12/2000 pending a further appeal to the Supreme Court. The counsel for the appellants/applicants referred to the cases of Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at p. 82; Steyr (Nig.) Ltd. v. De luke M. Enterprises Ltd. (1999) 12 NWLR (Pt. 631) p. 458 at p. 468-469.
Mr. Akeredolu (SAN) for the respondent, in his reply to the submission on the application for stay, emphasised the fact that this application for stay followed a garnishee order made at the trial court and which had been levied on the applicant. This now poses the question whether this court can grant a stay for an act that is already completed or executed. Learned counsel referred to the case of A.G., Anambra State v. Okafor (1992) 2 NWLR (PT.224) p. 396 at p. 419 – 420.
The applicant can only bring an application to set aside the garnishee order – but where the garnishee has been made absolute- the debt must be paid. Notice has to be given before the order nisi is made. Learned Senior Advocate referred to the book Debt Recovery Laws and Procedure chapter 7 page 97. Learned Senior Advocate contended that the applicant did not proffer special circumstance to justify granting his application for stay. The ground on jurisdiction was not made bona fide as the issue was extensively dealt with before the trial court – there was no appeal against it then. If the application is overruled and this court is inclined to grant a conditional stay of the judgment/debt the money should be paid into an interest yielding account within two weeks – as the applicant has enough money in its account to satisfy the condition. By way of emphasis – the application of the appellants/applicants is for an order of this court, staying execution of its judgment delivered on the 7th of December, 2001. The salient facts forming the background of the application can be found in the relevant paragraphs of the affidavit deposed to by the applicants on which they relied in the application for stay filed on the 27th of December, 2001 as follows:-
Paragraph 4 –
“That by a writ of summons dated 22nd June, 1999, the respondent as plaintiff under the undefended list procedure claimed the sum of N14,350,000 and interest on the said sum at the rate of 21% per annum against the appellants/applicants at the trial court.”
Paragraph 7 –
“That this honourable court in a unanimous decision, Coram Dalhatu Adamu, JCA, Francis Fedode Tabai, JCA and Olufunlola Adekeye, JCA delivered on the 7th day of December, 2001 allowed the appeal and entered judgment in favour of the respondent in the sum of N14,350,000 and interest on the said judgment at the rate of 21% per annum and 10% cost against the appellants/applicants. A certified true copy of the judgment is hereby attached as exhibit “A”.
By way of the special circumstances relied upon the applicant deposed as follows:-
Paragraph 9 –
“That W. A. Gbadegesin, Esq. of counsel informed me and I verily believe that the notice and grounds of appeal contained raise issue of jurisdiction and other issues in respect of which the law is recondite.”
Paragraph 14 –
“That in connection with the facts deposed to in paragraph 12 above the respondents himself had confirmed his impecunious position on oath as can be seen in paragraph 13 of his affidavit of 22nd June, 1999 attached as exhibit “C”.
Paragraph 15 –
“That by virtue of the facts deposed to in paragraphs 12, 13, 14 above if the respondent is allowed to execute the judgment and the appellants/applicants succeed on appeal, the judgment will be rendered nugatory, useless and barren.”
In order to show bona fide intention to prosecute the appeal expeditiously the applicants said:-
Paragraph 18 –
“That as further proof of the appellants/applicants desire to expeditiously prosecute the appeal, the appellants/applicants are ready and willing to enter into a bond in the sum of N14,350,000 in favour of the respondent.”
The respondent however made it clear in his counter-affidavit that the application is rather belated in that-
Paragraph 3 –
“Following the judgment of this honourable court in this appeal, I levied execution on the monies of the applicant subsequent to a garnishee order nisi granted by Oyo State High Court on the 13th December, 2001.
A copy of the order nisi already served on the garnishees and the applicant is attached as exhibit A.”
Paragraph 4 –
“That the appellants/applicants appeal against the judgment of this court on the 27th of December, 2001 after due execution were levied on its monies with the garnishees mentioned in exhibit “A”.
Paragraph 6 –
“That the present application of the appellant is only a design to prevent me from reaping the fruit of my success in this suit.”
The applicants in their better and further affidavit stated-
Paragraph 3 –
“That it was not true that execution had been levied on the monies of the appellants/applicants, the position was that the respondent quickly rushed to High Court to initiate garnishee proceeding against the interest of the applicants four days after the judgment was delivered in this court.”
Paragraph 4 –
“That further to the foregoing paragraph, the order nisi was made in the absence of the appellants/applicants and in the said order applicants were ordered to come and show cause why the order nisi would not be made absolute. This order nisi has been challenged in the court and a copy of the motion praying the court to vacate order or stay the proceeding pending the determination of the appeal lodged in the Supreme Court is hereby attached as exhibit “A”.
The foregoing is the resume of the salient facts on which this court must direct attention in considering this application for stay of execution of the judgment of this court delivered on the 7th of December, 2001 pending the determination of an appeal to the Supreme Court.
The two questions arising from the facts are –
(1) Whether the issue of jurisdiction in the grounds of appeal can qualify as special and exceptional circumstance on which this court can exercise its discretion to grant a stay to the applicants?
(2) Whether this court can grant a stay in respect of an execution which had already been carried out?
By way of a preamble, any application for a stay of execution is invoking the discretionary jurisdiction of a court which must consider both sides of equity for the unsuccessful party – the applicant; and justice for the successful party – a substitute for a judgment – the trial court denied an applicant, in that, as long as the judgment of a trial court remains and such judgment is not manifestly wrong, an appellate court has a right to presume that it is right until the contrary is proved. Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC77; Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (2001) Vol. 47 WRN P. 1; Balogun v. Balogun (1969) 1 ALL NLR 349; Martins v. Niccanar Food Co. Ltd. (1988) 2 NWLR (Pt. 74) p. 75; Gov., Lagos State v. Ojukwu (1986) NWLR (Pt. 18) p. 621; Deduwa v. Okorodudu (1974) 1 ALL NLR 272; Utilgas Nigerian & overseas Gas Co. Ltd. vr. Pan African Bank Ltd. (1974) 10 SC 105; University of Port-Harcourt v. Kraus Thompson Organisation Ltd. (1999) 11 NWLR (Pt. 625) p. 91; Oladeji Ise-Oluwa (Nig.) Ltd. v. Nigerian Distilleries Limited (2001) 6 NWLR (Pt. 709) p. 427; Okin Biscuits v. Oshe (2001) 6 NWLR (Pt. 709) p. 369.
In an application for stay, the court has a duty to ensure that the successful litigant reaps the fruits of his successful litigation while an applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the court must grant him such indulgence. In a judgment involving money, the terms upon which the court would grant a stay of execution are easier to determine than in other judgments where the “res” is perishable or prone to alteration. The terms are:-
(a) Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal?.
(b) Whether it would be difficult to secure the refund of the judgment debt and costs from the respondent, if the appeal succeeds for which purpose the financial ability of the respondent is taken into account. Deduwa v. Okorodudu (1974) 1 ALL NLR 272; Utilgas Nigerian & overseas Gas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 SC 105; University of Port-Harcourt v. Kraus Thompson Organisation Ltd. (1999) 11 NWLR (Pt. 625) p. 91; Oladeji Ise-Oluwa (Nig.) Ltd. v. Nigerian Distilleries Limited (2001) 6 NWLR (Pt. 709) p. 427.
The special circumstance relied upon by the applicants is that the grounds of appeal raise the issue of jurisdiction and other issues in respect of which the law is recondite. They buttressed this with the cases of – Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt. 74) p. 75; Ogun State Housing Corporation v. Ogunsola (2000) 14 NWLR (Pt. 687) p. 431 at p. 444.
Both cases laid emphasis on the principle that:-
“where grounds exist suggesting that a substantial issue of law is to be decided on appeal in an area in which the law is recondite and where either side could have a decision in his favour, a stay ought to be granted.”
The substantial arguable point of law raised by the applicants in their grounds of appeal filed in their appeal to the Supreme Court is on recourse to arbitration by the parties. This obviously raises the issue of the jurisdiction of the lower court – and the Supreme Court may decide this in favour of either of the parties. The contention of the respondent in this application is that issue of jurisdiction is not raised bona fide at this point in time. The issue was raised at the High Court – it was there and then argued and a decision was made on it.
The appellants/applicants did not touch upon the issue at the appeal before this court – only to raise it again in their appeal to the Supreme Court.
Though it is conceded that the grant of stay of execution is discretionary it is not disputed that the appellant must show good faith. Mobil Producing Nigeria Unlimited v. Monokpo (2001) 18 NWLR (Pt.744) p. 212. Jurisdiction on the other hand is the authority which a court has to decide matters that are litigated before it or take cognisance of matter presented in a formal way for its decision. Jurisdiction is an essential precondition for the exercise of judicial power. If a court lacks jurisdiction, it also lacks the necessary competence to try the issue at all. A defect in competence is fatal, as the proceedings will be rendered null and void ab initio however well conducted they may be. The issue of jurisdiction can therefore not be glossed over. Whenever there is a challenge to the jurisdiction of a court it has to be taken timeously, important still, the issue being basic and fundamental to adjudication can be raised at any stage of litigation process – for the first time in the trial court, or in the Court of Appeal or even in the Supreme Court, and by any of the parties or by the court itself suo motu. Bronik Motors v. Wema Bank Ltd.(1983) 1 SCNLR p. 296; Oloriode v. Oyebi (1984) 1 SCNLR p. 390; African Newspapers (Nig.) Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR Pt. 6) 137 at p. 122; Eze v. Federal Republic of Nigeria (1987) 1 NWLR Pt. 51) p. 506; Adebayo v. Obafemi Awolowo University Teaching Hospital Complex Management Board (2000) 9 NWLR (Pt. 673) p. 585; Egunjobi v. Federal Republic of Nigeria (2001) 53 WRN p. 20; Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341.
The issue of arbitration raised by the applicants in their appeal may affect the crucial question of the competence of the lower court which had tried the substantive case. Whether parties will refer to arbitration in terms of their contractual agreement before recourse to court may be an area in which the law will benefit from the exposition of the apex court on the issue. Ordinarily, this aspect of jurisdiction may not be said to constitute collateral circumstance in the determination of what is exceptional or special circumstance on which the court will rely upon to grant a stay for the preservation of the resume but may be seriously persuasive. In the circumstance of this appeal, the issue of arbitration on perusing the grounds of appeal challenges the competence of the lower court to adjudicate on the matter at the time the respondent filed an action in court. This will surely lead to the question whether the condition precedent to adjudication in court was complied with. It is an issue in which the court’s decision may be in favour of either of the parties, and on which stay can be granted. Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt. 74) p. 75; Balogun v. Balogun (1969) 1 ALL NLR p. 349-351; Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 35) p. 273; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) p. 129; Kigo (N9g.) Ltd. v. Holman Bros. (Nig.) Ltd. (2001) Vol. 47 WRN p. 1; El-Khalil v. Oredein (1985) 3 NWLR (Pt.12) p.371; Cooper v. Cooper (1876) 2 Ch.D 293.
The applicants raised the issue that the respondent would find it difficult to refund the judgment sum of N14,350,000.00 if the appeal succeeds. The financial ability of the respondent to refund is taken into account. In support of this contention the applicants attached an affidavit dated the 2nd of June, 1999 sworn to by the respondent – pursuant to Order 23 rule 1 of the High Court (Civil Procedure) Rules, 1988 – exhibit C in the application. The respondent explained how he funded the contract awarded to him by the applicants with an interest yielding loan which he raised from his bank. The applicants assumed that the respondent would use the sum of N14,350,000.00 to wipe off the bank loan. The respondent not only refuted this in his counter-affidavit – he maintained that the loan had been repaid from other sources. The applicants did not dispute this in their further affidavit, or further and better affidavit.
The answer to this situation is not far fetched. Where there is apprehension as to the inability of the respondent to secure a refund of the judgment debt, the practice of the court is to exercise its discretion in granting a conditional stay upon the payment of the judgment debt into the court. This discretionary power is exercised judicially and judiciously depending very much on the peculiar facts and circumstance of each case. In such condition, payment of the judgment debt into an interest yielding account will more often meet the justice of the case as the winner in the appeal will not suffer any loss. Orient Bank Ltd. v. Bilante International Ltd. (1996) 5 NWLR (Pt. 447) p. 166. The second leg of the question to be answered is whether the court can grant a stay of execution – in a circumstance where execution have been carried out to recover the judgment debt?
I have unchallenged evidence from both sides that garnishee proceedings against the monies of the appellants/applicants was initiated four days after judgment of this court was delivered, and that an order nisi have been made on 13/12/2001 whereupon the court called on the applicants to show cause why the order nisi would not be made absolute. A garnishee proceedings arise in a suit or an action, when it has been prosecuted to judgment, and an order for the payment of money to one of the parties is embodied. Garnishee proceedings are a form of execution of judgment.
If the property of the applicants have been levied since the judgment of court on 13/12/2001 asking this court to stay execution of the same judgment in an application filed on 27/12/2001 can only be described as closing the stable after the horse has bolted away. Obviously, to ask for a stay of execution is not the appropriate remedy in the circumstance of this case. It is trite that an interlocutory order either stay or injunction is not a proper remedy for an act which has already been carried out and will not be granted even when the act complained of is irregular. John Holt (Nig.) Ltd. v. Holt African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383; Uwegba v. A.-G., Bendel State (1985) 1 NWLR (Pt. 303) p. 303; Governor of lmo State v. Anosike (1987) 4 NWLR (Pt. 66) p. 663; A.-G., Anambra State v. Okafor (1992) 2 NWLR (Pt. 223) p. 396; Abubakar v. J.M.D.B. (1997) 10 NWLR (Pt. 524) 242.
Garnishee order was made on 13/12/2001 while motion for stay was served on the respondent on 27/12/2001. There was a time-lag of fourteen days between the two applications.
The applicants refer this court to an application now pending before the lower court exhibit A – where they have ventured to ask for a discharge of the order of court in the garnishee proceeding made on the 13th of December, 2001, or in the alternative a stay of the ruling in the garnishee proceeding. I make haste to add at this juncture, that until the application is heard and the request thereon granted, the order of the court in the garnishee proceeding shall remain valid and subsisting until same is set aside. Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5-7 SC 60.
Since it is not legally possible to use any magic wand to effect a reversal of a completed act, this court shall decline to exercise its discretion in favour of granting the application. The order for unconditional stay of execution of the judgment delivered on 7/12/2001 by this court shall be and is hereby refused. I am however mindful of the fact that the court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal, if successful is not nugatory. All courts of record, be they trial or appellate possess power either inherent or statutory of preservation of the res in their custody. Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. (2001) 47 WRN p. 1 SC; Andler v. Duke (1932) 3 DLR 210; The Lamora (1916) AC 27. Once a matter is on appeal, the court has jurisdiction to preserve the res. The exercise of this discretion is dictated by the facts and circumstance of each case. Where a party complains in a monetary judgment that the respondent may not be able to secure a refund of the judgment debt after an appeal, the court has a discretion to grant a conditional stay upon the payment of the judgment/debt into an interest yielding account for delivery to who ultimately establishes title after an appeal. This court is obliged in the instant appeal to make an order that will be in the interest of justice and conducive – with the effect that the appellant shall not come back to a hollow victory after an appeal in their favour, while respondent shall not suffer any loss if the judgment of this court is confirmed on appeal. Usually, after service of an order nisi a garnishee who does not dispute his liability and who does not desire to advance any claim or lien on the amount shall within eight days of service on him of the order nisi pay into court either the amount alleged due from him to the judgment debtor or if less, the judgment debt and costs. He shall not pay the debt direct to the garnishee until there is an order absolute. Re: Webster (1907) 1KB 623; Yates v. Terry (1902) 1KB 527.
This court does not have evidence of an order absolute made in the garnishee proceedings. It is also noteworthy that the applicants do not dispute the judgment debt itself – but the parties liable under the contract in going through their grounds of appeal to the Supreme Court. During the argument of this application both counsels were not opposed to granting a conditional stay of execution of the judgment debt. This court hereby order as follows:-
(1) That there shall be a conditional stay of the judgment delivered on the 7th of December, 2001.
(2) That the judgment debt a sum of N14,350,000 shall be deposited with the Deputy Chief Registrar, Court of Appeal, Ibadan within 14 days from today.
(3) That the Deputy Chief Registrar, Court of Appeal, Ibadan shall lodge the said sum of N14,350,000 into an interest yielding account with Trans International Bank Plc. Dugbe Branch, Ibadan immediately thereafter.
Upon withdrawal of this money from the account, the Deputy Chief Registrar, Court of Appeal and the counsel to both parties shall be signatories.
Costs of N5,000 is awarded in favour of the respondent.
ONALAJA, J.C.A.: I have perused in draft the lead ruling delivered today by my Lord Adekeye, JCA, which ruling is about the grant or refusal of the stay of execution of judgments of this court pending an appeal to the Supreme Court against the said judgment. The lead ruling considered exhaustively the guiding principle on grant or refusal of stay of execution derived from the judgments of the Supreme Court and this court and after which the lead ruling gave the reasoning and conclusion which are in accord with my thoughts on the issue to grant or refuse the stay of execution of judgment of this court, leads me to adopt the reasoning and conclusion as my own and to abide with the terms of the conditional stay imposed in the lead ruling, pending the determination of the appeal lodged in the Supreme Court against the judgment of this court.
TABAI, J.C.A.: I had a preview of the leading ruling prepared by my learned brother Adekeye, JCA, and I agree with the reasoning and conclusion therein.
In a court’s exercise of its discretion in an application for stay of execution of a judgment, as in this case, the court has a duty to take into consideration the competing interests of the parties so as to determine the party in whose favour the balance of convenience lies.
In this application, the applicant has raised the issue of jurisdiction and this court must not lose sight of its possible successful plea at the Supreme Court and the appellant’s consequential entitlement to retrieve the judgment debt of N14,350,000.00. Against this is the respondent’s corresponding entitlement to the fruits of his success in the litigation. In my view, the ends of justice would better be met in this case by balancing the competing interests of the parties through an order of a conditional stay as detailed in the leading ruling.
I also abide by the order of costs contained in the leading ruling.
Application granted conditionally.
M.O. Ishola, Esq. (DLAS), Ministry of Justice, Oyo State (with him A.I. Raheem, Esq. (SLO)For Appellant
O.O. Akeredolu, S.A.N (with him Moji Ojo [Mrs])For Respondent