GUFFANTI (NIGERIA) PLC V. PIDRELLA INSTALT – VADUZ & ORS
(2012)LCN/5462(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2012
CA/L/145/2001
RATIO
STAY OF EXECUTION: A COURT HAS INHERENT JURISDICTION TO STAY THE EXECUTION OF ITS JUDGMENT WHICH IS BEING CHALLENGED ON APPEAL
A court has an inherent jurisdiction to stay the execution of its judgment which is being challenged on appeal. See ONUZILIKE VS. CSD ANAMBRA (1990) 7 NWIR (Pt.161) 252; SODEINDE VS. REGISTERED TRUSTEES OF THE AHMADIYA MOVEMENT IN ISLAM (1980) 1- 2 SC I62; V.S.T. CO LTD VS. XTODENS TRADING CO. (1993) 5 NWLR (Pt 296) 675; OKAFOR VS. NNAIFE (1987) 4 NWLR (Pt 64) 129 at 136; FIRST BANK OF NIGERIA LTD. VS. DOYIN INVESTMENT (NIG) LTD (1989) 1 NWLR (Pt 99) 634; 1991 2 NWLR (Pt 172) 192.PER M. A. DANJUMA, J.C.A.
COURT: DISCRETION OF THE COURT: HOW IT SHOULD BE EXERCISED
A court has an unfiltered discretion to be exercised, howbeit only judicially and judiciously in any particular circumstance. That is to say, an exercise of discretion in one circumstance cannot be an authority in every such application; else it will cease to be an equitable and discretionary remedy. However, the general principle is that an appeal does not operate as a stay; and a successful litigant is always entitled to the fruit of his judgment and it is only in special circumstances that the court may deprive him of the fruits of his success in the judgment pending the determination of the appeal. See V.S.T. CO LTD VS. XTODEUS TRADING CO. (1993) 5 NWLR (Pt 296) 675.PER M. A. DANJUMA, J.C.A.
PRELIMINARY OBJECTION: A PRELIMINARY OBJECTION MUST BE CONSIDERED FIRST
It is trite that where a preliminary objection, is raised, it shall first be determined more so where it challenges the jurisdiction or competence of the court. The purpose of a preliminary objection is to contend that an appeal is defective or incompetent. If sustained the appeal will no longer be heard. A successful preliminary objection terminates the hearing of the appeal.
See NEPA VS. ANGO (2001) 15 NWLR (Pt 737) page 627 NDIGWE VS. NWUDE (1999) 11 NWLR (Pt 626) page 314. See recently CONT. RES (NIG) LTD VS. UBA (PLC) (2011) 16 NWLR (Pt 1274), page 592. PER M. A. DANJUMA, J.C.A.
FUNCTUS OFFICIO: WHEN A COURT BECOMES FUNCTUS OFFICIO
See Re: MADAKI’S case (1990) 4 NWLR (Pt.143), page 266/276.
In ONI’S case, (2010) 15 NWLR (Pt 127) 421 at 440, this court held thus:-
“A judge after making an order or giving judgment becomes functus officio and has no power to review such order or judgment except in cases of correction, mistake or accidental slips.”
In TECHNIP VS. AIC (2011) NWLR, decided on 27th September, 2010, DANJUMA, JCA Quoting Black’s Law Dictionary held -“that a court had become functus officio where it had accomplished its commission of hearing a case and rendering a decision thereon. He cannot re-open it by review or setting aside save on appeal in accordance to law.”PER M. A. DANJUMA, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
GUFFANTI (NIGERIA) PLC Appellant(s)
AND
PIDRELLA INSTALT – VADUZ
AND
ANTONIO GUFFFANTI (for himself and as Heir of Engr. FELICE GUVANTI (Deceased)
CARTO MARIA GUFFANTI (for himself and the Heir of MARIO GUFFANTI (Deceased) Respondent(s)
M. A. DANJUMA, J.C.A. (Delivering the Lead Ruling): This is a Ruling in respect of an application for stay of execution of a Ruling made by Hon. Justice ADEYINKA, J, of the Ikeja Division of the Lagos State High Court on the 25th day of May, 2000 pending the determination of the appeal against that Ruling by the Defendant/Appellant Applicant herein.
The Motion for stay of execution by the Applicant/Appellant was filed on 20/5/11 and is herein reproduced together with the supporting affidavit thereto thus:-
‘TAKE NOTICE that this Honourable Court will be moved on the ………….day of …………2011 at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel for the Defendant/Appellant/Applicant can be heard on an application:
1. For an Order staying execution of the Orders made pursuant to the Ruling given in the above mentioned Suit by the Honorable Justice Adeyinka sitting at the Ikeja Division of the Lagos State High Court on the 25th day of May, 2000 pending the determination of the Appeal by the Defendant/Appellant/Applicant against the said Ruling; and
2. For such further or other Orders as this Honorable Court may deem fit to make in the circumstances.
AFFIDAVIT IN SUPPORT
I, SOLA ODEYINKA, Male, Nigerian, Christian of 284 Murtala Mohammed Way, Alagomeji, Yaba, Lagos hereby make oath and state as follows:
1. That I am a Litigation Clerk in the Chambers of Prof. A. B. Kasunmu SAN, now acting for the Applicant in respect of the present Appeal.
2. That Pro. A. B. Kasunmu SAN is acting in conjunction with Dr. F. A. Ajayi SAN who was former Counsel and I have been taking instructions from both of them in respect of this matter.
3. That I have the authority of the Applicant to depose to this Affidavit.
4. That the matters hereinafter deposed to are, unless otherwise stated, based on the information given to me by Dr. F. A. Ajayi SAN which facts I verily believe to be true.
5. That I am informed by Dr. F. A. Ajayi SAN, Counsel formerly acting for the Applicant, on Thursday the 19th of May, 2011 in his office at 5th Floor, Western House, 8/10 Broad Street, Lagos of the following facts.
6. That on the 25th of May, 2000 Justice Adeyinka of the Lagos State High Court entered an Interlocutory Judgment against the Applicant in the sum of N157 Million with interest.
7. That being dissatisfied with the said judgment, the Applicant appealed against the said judgment by a Notice of Appeal dated the 14th of July, 2000 and filed on the same day.
8. That the Applicant later filed an Application for Stay of Execution before the trial Judge which Application was refused.
9. That by a motion dated the 16th of March, 2001, the Applicant applied to this Honorable Court for Stay of Execution of the judgment of the trial Court which Application was heard and granted by this Honorable Court in a ruling of the 10th of July, 2002.
10. Now shown to me and marked as Exhibits are the following:-
(a) Motion for Stay of Execution at the Court of Appeal dated the 16th of March, 2001 – Exhibit “A”
(b) Affidavit of Julius Olaseinde Agbana dated the 16th of March, 2001 in support of the Motion – Exhibit “B”
(c) Notice of Appeal dated the 14th of July, 2000 – Exhibit “C”
(d)The Appellant’s Further and better Affidavit dated the 8th of June, 2001- – Exhibit “D”
(e) Ruling of the High Court of Lagos of 25th May, 2000 refusing the Application for Stay of Execution – – Exhibit “E’
(f) Ruling of the Court of Appeal dated the 10th of July, 2002 granting Stay of Execution against the High Court judgment – – Exhibit “F”
11. That this Court on the 25th of February, 2009 dismissed the Applicant’s appeal for want of diligent prosecution and also discharged the Order of Stay of Execution made in his favour.
12. That consequent upon an Application filed on behalf of the Applicant on the 25th of February, 2009, this Honorable Court in a ruling delivered on the 18th of May, 2011, restored the Applicant’s appeal on the list but refused to reinstate the Order granting Stay of Execution stating that the Application for the Stay of Execution has to be represented by the Applicant to the Court. Now shown to me and marked as – Exhibit “G” is a copy of the ruling of the Court of Appeal made on the 18th of May, 2011.
The objection of the 1st Respondent is also reproduced thus:-
TAKE NOTICE that this Honourable Court will be moved on………….. the ………..day of … …………2011, at 9 o’clock in the forenoon or so soon thereafter, as the 1st Respondent/Applicant having filed this Notice of Objection, shall be heard objecting to the hearing of the Appellant/Respondent’s Motion on Notice for an order of stay of execution dated 20/5/2011, on the grounds contained in the Notice of Objection as stated hereunder to wit;
GROUND OF OBJECTION
That this Honorable Court lacks the jurisdiction to entertain, hear and determine the prayer for an order of stay of execution contained in the Appellant’s Motion on Notice dated the 20th day of May, 2011.
TAKE FURTHER NOTICE that the 1st Respondent/Applicant’s reasons for the ground of the objection are as follows:-
a. By virtue of the decision of this Honourable Court in its Ruling of 25th February, 2009 and the order made thereat on the order of stay of execution and the reaffirmation of the said order in the Ruling of this Honourable Court made on the 18th day of May, 2011, this Honourable Court had reached a decision on the Appellant’s prayer for an order for stay of execution as contained in its Motion on Notice dated 20/5/2011 and is therefore functus officio with respect to same.
b. That the Appellant’s Application dated 29th day of May, 2011 before this Honourable Court, for an order for stay of execution of the judgment delivered by the Honourable Justice Adeyinka of the Ikeja Division of the High Court of Lagos state made on the 25th day of May, 2000, as presently constituted, is incompetent and cannot move the jurisdiction of this Honourable Court to hear and determine same.
AND TAKE FURTHER NOTICE that at the hearing of this Application, the 1st Respondent/Applicant shall rely the exhibits attached to the Appellant/Respondent’s Application dated 20/5/2011, as well as the records of this Honourable Court, in support of its position that the Appellant/Respondents’ Application dated 20/5/2011, is not only competent, but lacks merit and cannot as is presently constituted, move the jurisdiction of this Honourable Court to hear and determine same.
The Respective counsel for the parties i.e Appellant and the 1st Respondent, 2nd and 3rd Respondents filed their respective processes in opposition
The Appellant/Applicant by their learned senior counsel, prof, A. B. KASUNMU (SAN) annexed to the Applicant’s motion for stay of execution and an affidavit in support, a copy of the motion on notice for stay of execution as earlier filed in this court on 16/3/11, the Notice of Appeal, further and better affidavit in support of motion for stay and the Ruling appealed against.
A further affidavit and the certified true copy of the Judgment or Ruling sought to be stayed were all annexed to the motion. The Ruling is exhibit “F” in the further counter affidavit.
The 1st Respondent proceeded to file a 1st Respondent’s counter affidavit to the said motion for stay.
It was filed 14/6/11. The 2nd and 3rd Respondent filed a notice of preliminary objection as herein under:-
”TAKE NOTICE that the 2nd and 3rd Respondents herein named intend at the hearing of the Appellant/Applicant’s MOTION ON NOTICE for stay of execution dated 20th May 2011 to rely upon the following preliminary objection Notice whereof is hereby given to you, viz:-
GROUND OF OBJECTION
The Court of Appeal does not have jurisdiction to entertain the Appellant/Applicant’s application for stay of execution.
AND TAKE NOTICE that the grounds of the said objection are as follows:-
(1) The application for an order for stay of execution against the Ruling of Hon. Justice ADEYINKA having been previously refused by this court in its Ruling of 18/5/2011; this court is thereby functus officio and therefore cannot review or revisit its order of refusal or entertain any application on the matter again.
(2) Since all rights of appeal are statutory it behoves the Applicant to identify the statutory provision or Rule of court that enables the Applicant to represent, reapply or bring an application that had been refused (by this court) before the same court.
(3) Any attempt by the Court of Appeal to hear the Appellant/Applicant’s application for stay of execution will be tantamount to a violation of section 233(1) of the 1999 constitution of the Federal Republic of Nigeria. The said Notice of preliminary objection is supported by an affidavit of 9 paragraphs deposed to by one OLATUNJI ODUNTAN, a legal practitioner in the chambers of the said 2nd and 3rd Respondents’ learned counsel. The relevant and material portions of the affidavit provide as follows:-
(4) The Appellant had applied to this court previously for an order for stay of execution of the judgment of the court below which application was refused in the Ruling of this court dated 18/5/11. The said Ruling is attached herewith as Exhibit “A.”
(5) On 10th July, 2002 this court had granted an order of stay of execution of the judgment of the court below
(6) By the Ruling of this court dated 25th February, 2009, the order of stay of execution referred to in paragraph 5 above was discharged.
(7) The Appellant/Applicant renewed the application for stay of execution in its motion dated 25th February, 2009 where it prayed as follows:-
“———–4 an order restoring the stay of execution made in favour of the Appellant/Applicant pending the hearing and determination of the appeal filed by the Appellant.
(8) On the 18th May, 2011 the Court of Appeal delivered its Ruling on the renewed application for stay of execution as follows:-
“————-As for prayer 4, the order for stay of execution was discharged in the consequential orders made in the Ruling dated 25th February, 2009, dismissing the appeal. The order for stay of execution having been discharged stands discharged; at best the applicant can only file a fresh application for the stay of execution,
Consequently, prayer 1, 2 and 3 are hereby granted as prayed, while prayer 4 is refused.”
The 2nd and 3rd Respondents then proceeded to file a counter affidavit on 18/5/09.
The Appellant/Applicant proceeded in response to file a counter affidavit on 28/6/11 to the preliminary objection of the 2nd and 3rd Respondents. It is dated the 9th June, 2011.
In the main, the counter affidavit avers relevantly at paragraphs 5 and 6 as follows:-
“5. That the judgment sum being sought to be stayed by the Appellant’s motion filed on the 20th day of May, 2011, is in favour of the 1st Respondent/Judgment creditor and not in favour of the 2nd and 3rd Respondents.
6. That I am informed by Prof. A. B. KASUNMU (SAN) and I verily believe him that the 2nd and 3rd Respondents are not the judgment creditors.”
Further affidavit in support of the motion was also filed on 27/6/11. The said further affidavit avers a precarious state of the company and the most unlikely possibility of it ever being in any healthy financial state to honour its contractual obligations including the subject of the judgment sought to be stayed and appealed.
It avers as follows, as are relevant and apposite to the application for stay of execution
“4. That there were good and triable issues to be determined on appeal as judgment could not be entered on admission in the circumstance of the deliberations in the meeting of the Board of the Company.” This is the gist of and pith of the reasons for stay of execution
Learned counsel for the 1st Respondent, aside his response against the bringing of and merit of the application, submitted that even if stay must be granted, it has to be on terms such as a guarantee or deposit in an interest yielding account to be opened by the Registrar of this court.
Before, I proceed, I need point out that professor KASUNMU had stated that the 2nd and 3rd Respondents were not judgment creditors and therefore had no business with objecting. I think, he got it wrong, with due respect. The 2nd and 3rd Respondents were parties to the case being appealed and in respect of which judgment was given and stay is sought. The determination of the application is bound to affect them one way or the other. If they were not made parties, they could not have so replied except if they had applied to be joined or were so joined. Here the Appellant has not told this court that those Respondents were not parties at the trial and/or are not parties to the application.
An earlier further affidavit sworn to and filed on 16/6/11 had been deposed to annexing a copy of the Ruling of this court wherein the earlier order for a stay of execution was discharged. This affidavit was sworn and filed with a view to showing or exhibiting the earlier Ruling alluded to in respect of stay of execution by this court. Be that as it may, when this application for stay came up for hearing on the 20/3/12, the learned senior counsel for the Applicant, Professor A. B. KASUNMU started by informing this court that there was an application for stay of execution by the Respondent but that the hearing of the appeal should, rather proceed and that briefs had been filed. That energy should not be dissipated on an action for stay. I think, it was a slip, case of lapsus liguae to refer to the Respondent as having an application for stay.
At this stage, he said “energy should not be dissipated on stay of proceedings.” I have not seen any such application from any Respondent herein. That the appeal should be proceeded with, rather than the application for execution be made by the 2nd Defendant/Respondent. Again there is no such application before this court, in this proceedings. At least, I am not aware of any such in the proceedings forming the subject of this motion by the learned senior counsel’s client.
E.O. ONYEKE, ESQ, for the first Respondent, in the circumstance, was right in my view, when he interjected that the Appellant/Applicant might in the circumstance, as portrayed, choose an option of withdrawing his application so as to give way for the hearing of the appeal.
While Chief OKULAJA, SAN for the 2nd and 3rd Respondents with all vehemence indicated that the appellant’s motion was a non-starter; he was perfectly right also. Having indicated that an earlier application for stay of execution of the Ruling or judgment of the Lagos State High Court was granted and the appeal to this court relisted after its dismissal, it was contended that the circumstances that necessitated the stay as granted earlier had not changed; that the applicant will be out of business if no stay is granted.
Secondly, it was contended that there are good and triable issues to be determined on appeal; that it was wrong to have granted a judgment on admission, in the circumstances.
Learned counsel relied heavily on the further affidavit, deposed to by DR. AJAYI and the Accountant of the Company in arguing that the conditions that persuaded the court to grant the order of stay of execution are very much alife and operate in favour of renewing this order of stay of execution as sought herein.
In response, the learned senior counsel for the 1st Respondent raised a Notice of preliminary objection per notice filed 14/6/11 and also filed a counter affidavit. It’s learned counsel relies on the notice of objection and affidavit and submits that the Applicants would appear to have hatched a plan to make it impossible to realize the judgment debt. That the earlier order of stay had been vacated and that this is, however, the third time that such an application is being brought. That the order for stay, having been vacated, nothing stops the execution of the judgment now.
Finally, learned counsel impressed it on this court to note that nothing has been shown as to the state of the finance of the Applicant to show that they will get out of business if the application for stay of execution is not granted
On his part, OKULAJA, SAN for the 2nd and 3rd Respondents, first referred us to his notice of preliminary objection (which I had reproduced earlier in this Ruling) and submitted that this court having ruled on 18/5/11 in respect of the application for stay of execution this court no longer has jurisdiction to make any decision on the matter.
He referred to the cases of Re: MADAKI and MOHAMMED VS. HUSSAINI. He referred to the counter affidavit by MR ALALADE where the deposition that the Company’s (Applicant’s) assets were being disposed off and reports were made, culminating to statements being made by its officials and lawyer.
That the application for stay was an equitable remedy, which necessitated that the Applicant comes with clean hands. That there was no denial of the averments relating to acts perpetuated to defraud the Respondents. That that must be the reason for the Applicant’s counsel himself wanting the appeal heard as he appreciated that the application has no basis.
Learned 1st Respondent’s counsel also submitted that the 1st Respondent was entitled to the fruit of his judgment, else the judgment would be of no value. He contended that this was a money judgment and even if stay must be, it should be upon stringent condition that the Applicant enters into a bond.
In reply, the learned Senior Counsel stated that it was not correct that the application for stay was dismissed and secondly, that the allegation raising fraudulent dealings i.e. sale of the assets of the Applicant was countered contrary to the contention of the 2nd and 3rd Respondents’ learned counsel.
Before I delve into a consideration of this application, perhaps it is important to first restate the general principle that regulates the grant or otherwise of an application for stay of execution in our courts. A court has an inherent jurisdiction to stay the execution of its judgment which is being challenged on appeal. See ONUZILIKE VS. CSD ANAMBRA (1990) 7 NWIR (Pt.161) 252; SODEINDE VS. REGISTERED TRUSTEES OF THE AHMADIYA MOVEMENT IN ISLAM (1980) 1- 2 SC I62; V.S.T. CO LTD VS. XTODENS TRADING CO. (1993) 5 NWLR (Pt 296) 675; OKAFOR VS. NNAIFE (1987) 4 NWLR (Pt 64) 129 at 136; FIRST BANK OF NIGERIA LTD. VS. DOYIN INVESTMENT (NIG) LTD (1989) 1 NWLR (Pt 99) 634; 1991 2 NWLR (Pt 172) 192.
A court has an unfiltered discretion to be exercised, howbeit only judicially and judiciously in any particular circumstance. That is to say, an exercise of discretion in one circumstance cannot be an authority in every such application; else it will cease to be an equitable and discretionary remedy. However, the general principle is that an appeal does not operate as a stay; and a successful litigant is always entitled to the fruit of his judgment and it is only in special circumstances that the court may deprive him of the fruits of his success in the judgment pending the determination of the appeal. See V.S.T. CO LTD VS. XTODEUS TRADING CO. (1993) 5 NWLR (Pt 296) 675.
The Applicant must plead and show that the balance of justice obviously weigh in favour of stay. See OKAFOR VS. NNAIFE; FIRST BANK OF NIGERIA LTD VS. DOYIN INVESTMENT (NIG) LTD (Supra).
In all the conditions for stay of execution pending appeal, the one that commends and usually tasks the judicious exercise of the courts discretion is that which requires that the Applicant shows special circumstances warranting the granting of stay in his favour.
However, before I proceed into a consideration of this application, I must hasten to appreciate that the two sets of Respondents ie, the 1st and 2nd/3rd Respondents all raised a notice of preliminary objection to the hearing and determination of the application on the common ground that this court having heard and refused the same application earlier on, is now without jurisdiction to take this application twice over as we are, according to them, functus officio. For the 1st Respondent’s counsel, this application was coming up for the 3rd time, whilst for the 2nd and 3rd Respondents it was emphasized that the Ruling earlier made on 18/5/11 relating to stay of execution was nonetheless a judgment of a court of law. He cited Re: MADAKI in aid that it could not be reopened except by an appeal.
It is trite that where a preliminary objection, is raised, it shall first be determined more so where it challenges the jurisdiction or competence of the court. The purpose of a preliminary objection is to contend that an appeal is defective or incompetent. If sustained the appeal will no longer be heard. A successful preliminary objection terminates the hearing of the appeal.
See NEPA VS. ANGO (2001) 15 NWLR (Pt 737) page 627 NDIGWE VS. NWUDE (1999) 11 NWLR (Pt 626) page 314. See recently CONT. RES (NIG) LTD VS. UBA (PLC) (2011) 16 NWLR (Pt 1274), page 592
The objection was raised that this court had determined the application and was therefore functus officio and to rehear the application will in the contention of OKULAJA (SAN) for 2nd and 3rd Respondents amount to this court sitting on appeal over its decision in violation of the position of the Supreme Court that exclusively hears appeals from the Court of Appeal as by section 233 of the constitution, 1999 enshrined.
Did this court make a decision on this similar application? On the 18/5/11, this court made a decision confirming the “discharge” of the order for stay of execution and proceeded to emphasize that “the order remained discharged” since the appeal had been dismissed.
There was the rider that the Applicant may bring a fresh application. This, he has done after the appeal was restored. I however, do not agree with PROF A. KASUNMU (SAN) that the application was not refused, as the lead Ruling of 18/5/11 delivered by ADAMU JAURO, JCA stated unequivocably, that the “prayer No.4 is refused.”
For the avoidance of doubt, prayer No.4 of the motion as contained in the Judgment Exhibit “A” to the notice of preliminary objection states thus:-
“4 – An Order restoring the stay of execution made in favour of the Appellant/Applicant pending the hearing and the determination of the appeal filed by the Appellant.”
That application or prayer cannot but be an application for stay of execution being sought to be granted in the pattern in which it was granted before it was set aside.
Refusing it as specifically done simply means, the application was dismissed. At least it was not struck out.
That was, therefore, a decision within the meaning of section 318(1) of the 1999 constitution which includes an “Order.”
See Re: MADAKI’S case (1990) 4 NWLR (Pt.143), page 266/276.
In ONI’S case, (2010) 15 NWLR (Pt 127) 421 at 440, this court held thus:-
“A judge after making an order or giving judgment becomes functus officio and has no power to review such order or judgment except in cases of correction, mistake or accidental slips.”
In TECHNIP VS. AIC (2011) NWLR, decided on 27th September, 2010, DANJUMA, JCA Quoting Black’s Law Dictionary held -“that a court had become functus officio where it had accomplished its commission of hearing a case and rendering a decision thereon. He cannot re-open it by review or setting aside save on appeal in accordance to law.”
The decision that “the discharge of order No.4 granting stay of execution was discharge and stood discharged,” and the specific order that “relief or prayer No.4 is refused” is a decision and an order of this court on its merit. It is a judgment, subject to appeal to a higher court; in the case, the Supreme Court.
To come a second time, rather than appeal thereon, in my view amounts to an abuse of court process. A court has no jurisdiction to allow its processes to be used as an instrument of abuse and oppression.
In this same case, an application to stay execution which was refused after the first grant was wasted, cannot be brought into being in the same case again.
See an analogy in the case of IFEGBU VS. UBN PLC (2011) 15 NWLR 555 (Pt.1274) ARIWOOLA, JCA (as he then was) now JSC wherein he held “that the same processes cannot co-exist in the same case. It can either file a Respondent’s Notice to affirm the existing judgment, or file a notice of cross appeal seeking to set aside a finding which is crucial and fundamental to its case. It cannot have the two processes co-existing. Accordingly the notice of cross-appeal filed on 30th March, 2009 being an abuse of court’s process in the face of a Respondent’s notice shall be and is hereby struck out——”
In this appeal, the Appellant had the option of appealing against the decision refusing his prayer 4 on stay of execution or proceeding with the appeal proper. He abused the process of this court and this court has no jurisdiction to proceed along with him.
Accordingly, this further application brought in abuse of court ought to be struck out.
The objection raised by both counsel for the 2 sets of Respondents in my view has merit. It succeeds. Accordingly the motion for stay of execution is struck out.
In case, I am wrong; I shall proceed to consider the application on its merit. I should state that the gravamen of the grounds upon which the application for stay is anchored are firstly that the Applicant was impecunious and could not pay its debts or would be completely grounded or liquidated if stay of execution was not granted. It was also contended that the Respondent was a foreign company and had no assets in Nigeria. He contended further that there was a substantial and triable issue of appeal relating to “admission.” I shall now proceed on the merit of the application. The well engrained principle of law is that a judgment creditor should not be deprived of the fruits of his judgment, unless special circumstances are disclosed.
In this application, the Applicant/Judgment debtor desires to have a stay principally on the ground that it was so impecunious that to execute the judgment will lead to its liquidation, as principal officers of the company (foreign) are making the realization of its debts and operations difficult. That it is so indebted.
In VASWANI TRADING CO. VS. SAVALAK, COKER J, stated the position of the law to be that – “a court of appeal should not grant stay of execution unless there are special or exceptional circumstances for doing so. That it should not be granted unless the non grant will foist upon the court a situation of helplessness, especially in the court of appeal, or render nugatory any order or order of the court of appeal or paralyze in one way or the other the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case and in particular even if the Appellant succeeds in the Court of Appeal, there could be no return to the status quo.
What amounts to special or exceptional circumstance varies from case to case. It is dependent on the peculiar facts and circumstances of each case. That is why a discretion exercised in one case cannot constitute an authority binding for all cases and at all times.
See BALOGUN VS. BALOGUN 1969 ALL NLR 149; OKAFOR VS. NNAIFE (1987) 4 NWLR (Pt 64) 129; KIGO (NIG) LTD VS. HOLMAN BROS (NIG) LTD (1980) 5-7 SC 50.
Having carefully considered the affidavits and counter affidavits herein, I am of the view that the Applicant’s reasons for stay based on impecuniary grounds and the likely event of its liquidation if it pays the debt cannot be supported.
The Applicant has not disclosed by the affidavit evidence its total worth in assets at the time of the indebtedness or when the debt was due vis-a-vis the debt sum
No Bank statements have been exhibited to show its worth in the face of the alleged distress.
In any case, the law is that impecuniary may not be a ground for stay of execution, unless it could amount to depriving the Applicant his constitutional right of prosecuting his appeal if stay is not granted see NWANOSIKE VS. UDOSEN (1993) 4 NWLR (Pt 2) 664; ABDULKADIRI VS. ALI (1999) 1 NWLR (Pt.599) 613.
In this application, learned counsel for the applicant, set out at the inception in his oral submission by urging that briefs have been filed and the hearing of the appeal may proceeds rather than waste time on this interlocutory appeal. He calls it waste of time by his ipse dixit.
Why the volte face at this stage? Why the somersault see NECO VS.TOKODE (2011) 5 NWLR (Pt 1239) 45; IFEGWU VS. UBN PLC (2011) 16 NWLR 555.
A party should not approbate and reprobate. The Applicant, by the concession of his counsel will not be hump strung in pursuing his appeal.
‘l do not also see any condition of helplessness that will be foisted on this court by not ordering for stay but in proceeding with the hearing of the appeal. Discretionary remedies are not granted as a matter of course.
The Applicant contends that the Company/Respondent is a foreign company with no assets in Nigeria.
That it has no assets may ground an application for liquidation or winding-up upon ground of insolvency.
There are still remedies for creditors of companies wound up on such grounds. The Applicant would appear to also be relying on the acts of the company officials (which are its acts) to defeat the Respondents’ claim for execution, or rather as a sword for the equitable relief of stay of execution sought.
The first Respondent’s learned counsel was, therefore, right when he submitted that “he who comes to equity must come with clean hands.” On the other ground for the application being that the issue of “admission” is substantial and a triable issue; I do agree that it is a substantial issue, but as this court stated in its Ruling on this same type of application on 10th July, 2002, the showing of a substantial ground of appeal alone, is not ipso facto, sufficient to grant a stay of execution see OKAFOR VS. NNAIFE (1987) 4 NWLR (Pt 64) 29 LIJADU VS. LIJADU (1991) 1 NWLR (Pt 169) 621.
Honestly, for me, I do not see how, the substantiality of the question of “admission” alone being the ground of appeal solely hammered upon to ground the stay sought can avail the Applicant. If a decision on appeal turns out to the effect that there was no admission and that a judgment was erroneous, then the judgment would be set aside and the judgment debt, which the 1st Respondent concedes or proposes that it could be deposited in an interest yielding account could be dealt with as appropriate, as after all, a judgment of a court of law is presumed to be correct unless and until declared otherwise or set aside. Even if the Respondent were considered a foreign company I am not unaware of the Foreign Judgments Enforcement Rules as it affects companies domiciled out of Nigeria but doing business in Nigeria. The judgments may never be rendered nugatory as their assets can always be reached for enforcement. There is available, the equitable doctrine of tracing and a hosts of international reciprocal conventions relating to debts, judgments and monies or properties.
I take judicial notice of the existence of such sundry laws/conventions. Finally, in every application for an equitable remedy or reliefs, the competing rights of the parties must be taken into account. It is my view that the Respondents, who had had judgment in their favour, have the right to enjoy the benefit of the judgment as against the Applicant who desires to stall the enjoyment of that accrued and decreed right pending the determination of the appeal. From the Applicant’s affidavit and submission of its counsel, it is apparent and being said that even if the appeal fails, the applicant cannot pay the debt as adjudged. The stay of execution appears to be the Applicant’s way of asking that the judgment be set aside or nullified; but will a decreed remedy stand in effectual? What if the Respondents have the appeal determined in their favour? In the posturing of the Applicant, they still cannot pay as to do so will lead to its liquidation.
Can such a stand be one in good faith, which is expected to be the colour of every application for a discretionary relief? I note that the Applicant’s Appeal was once struck out for want of prosecution.
For the aforesaid, it is my candid view that an unconditional stay, as sought, will be prejudicial to the Respondents and constitute an undue tilting of the scale of justice in favour of the Applicant.
Worst still, the Applicant has, by the affidavit of SOLA ODEYINKA, deposed to on 20/5/2011, in support of the motion for stay of execution averred at paragraph 14 thus:-
“That I adopt as my affidavit in support of this present application, the averment of facts as set out in the affidavit of JULIUS OLASEINDE AGBANA sworn to on the 16th day of March, 2001 in support of the earlier application of stay of execution and attached as Exhibit “B” of this application.”
This clearly shows that the deponent has not deposed to facts within his personal knowledge in support of application. A witness, which includes a deponent to an affidavit, cannot adopt the evidence of another witness or person. That would amount to hearsay evidence. Such adopted deposition is in admissible in law. Section 88 of the Evidence Act provides as follows as relating to the making of an affidavit:-
“When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.”
The circumstances of the deponent’s belief of another deponent’s deposition is not shown. lt is hearsay evidence.
In IFEGWU V. UBN PLC (2011) 16 NWLR (Pt 1274) 555 at 588 paragraphs D – G, this court per ARIWOOLA, (JCA) as he then was) observed thus:-
“However, the court had ruled the testimony of PW1, supplied by the Appellant to be hearsay and therefore not admissible. What then is hearsay? Traditionally, testimony that is given by a witness who relates not what he or she knew personally, but what others have said and that is therefore dependent on the credibility of someone other than the witness, is called hearsay. Under the rules of evidence, such testimony is generally inadmissible.
See BLACK’S LAW DICTIONARY EIGHTH EDITION, page 739. Indeed, a piece of evidence is hearsay, if it is testimony of the contents of a statement made by a person who himself is not called to testify. See FELICIA OSAGIEDE OJO VS. ARGHARORO & ORS. (2006) 10 NWLR (Pt 987) 173 at 198 – 199.
The 1st Respondent’s learned counsel suggests the imposition of a bond to make the grant of stay, conditional. The 2nd and 3rd Respondents’ learned counsel, OKULANA, SAN totally opposes the application and its grant.
From all that I have endeavored to show, it is glaring that in fact, law and equity, the Applicant’s application for stay of execution has no merit. It fails.
The hearing of the Appeal shall proceed as earlier adjourned. There shall be no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA. I agree with his reasoning and conclusion that the application for stay of proceedings has no merit at all and must fail. The Applicant did not show any exceptional circumstances that would warrant the exercise of the court’s discretion to grant stay in his favour. The application for stay of execution of the judgment of the trial court filed on 20th May 2011 is hereby dismissed. I also make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have read in draft, afforded me before now, the lead Ruling of my learned brother Hon. Justice M,A. Danjuma, JCA.
I agree with the reasoning and conclusion that the application for stay of execution is devoid of merit, and same is hereby struck out.
I abide by the consequential order made that there shall be no order as to costs.
Appearances
Professor A.B. Kasunmu (SAN),
Kemi Eweje (Mrs.)For Appellant
AND
E.D. Onyeke Esq.
B.O. Awachuo (Mrs.)
Chief M.A.O. Okulaja (SAN)
Olatunji Oduntan Esq.For Respondent
