HOPE UZODINMA v. SENATOR OSITA IZUNASO & ORS
(2011)LCN/4354(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2011
CA/A/51/2011
RATIO
STAY OF EXECUTION: WHETHER DURING THE PENDENCY OF AN APPEAL ,THE APPELLATE COURT CAN ORDER STAY OF EXECUTION
Even if the orders of the lower court had been executed, this Court will not discountenance such execution on the ground that there were pending before this Court the main appeal and the application for stay of execution of those orders. In VASWANI Vs SAVALAKH (1972) 12 SC 77; which is also reported at ILC 484 at 492 paragraphs D-H; the Supreme Court per Coker JSC had this to say:- “It is true and correct to observe that notice of appeal filed would not operate as a stay of execution and Section 24 of the Supreme Court Act makes this more clear; but it is equally correct to point out that the Section does not prescribe in favour of any execution being carried out during the pendeney of an appeal. Indeed, by its provisions it postulates that during the pendency of an appeal, the Supreme Court has got the jurisdiction to accede to an application for a stay of execution conditionally or otherwise. The Section does not give any license directly or indirectly, for the issue and execution of any processes which may ultimately be offensive. The Section simply de-limits the scope of the statutory position of the parties after the filing of notice of appeal. Clearly therefore to employ this section as a springboard for the issue and process of an inopportune execution would be an abuse of the process of the Court.” PER PAUL ADAMU GALINJE, J.C.A.
STAY OF EXECUTION: WHETHER WHERE AN APPLICATION FOR EXECUTION IS PENDING IN AN APPELLATE COURT, EXECUTION OF THE JUDGMENT THAT IS SOUGHT TO BE STAYED BY THE LOWER COURT IS NULL AND VOID
Where an application for execution is pending in an Appellate Court, execution of the judgment that is sought to be stayed by the lower court is null and void. In such circumstances a general appraisal of the whole situation is absolutely necessary and it is most desirable that the Court should ensure that at that stage of the proceedings, it is not possible for any party to present it with a fait accompli. In the same authority of VASWANI TRADING CO. VS SAVALAKH and CO (supra) at 495 paragraphs B-D, the Supreme Court, per Coker JSC said; “Thus although Section 24 of the Supreme Court Act states that an appeal shall not operate as a stay of execution, it does not interfere with proceedings or an application for a stay of execution and by the same token any action or conduct of one or the other of the Parties to the action taken whilst an application for a stay of execution for a stay of execution is pending in this Court, for the obvious or subtle purpose of stultifying the exercise by this Court of its jurisdiction, and indeed its duty to consider the application on its merit, must not be countenanced by this Court.” PER PAUL ADAMU GALINJE, J.C.A.
STAY OF EXECUTION: CIRCUMSTANCES WHERE A COURT WILL ORDER A STAY OF EXECUTION PENDING APPEAL
Normally a court will not deprive a successful litigant of the fruits of his litigation pending appeal. However, where an appeal against that decision will be rendered nugatory if a stay of the decision is not ordered then the court will exercise its discretion and order a stay of execution pending appeal. PER REGINA OBIAGELI NWODO, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
HOPE UZODINMA – Appellant(s)
AND
1. SENATOR OSITA IZUNASO
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): By a motion on notice dated 9th of January, 2011, the Applicant herein sought for the following reliefs:-
1. An order staying execution of the judgment of Honourable Justice A.A, Kafarati of the Federal High Court, Abuja, delivered on the 28th of January, 2011, in suit No, FHC/ABJ/CS/51/2011, pending the hearing and determination by this Court, of the Applicant’s appeal against the judgment.
2. And any other orders as this Honourable Court may deem fit to make in the circumstances.
This motion is supported by a 21 paragraphs affidavit deposed to by Ifeyinwa Arum, a legal practitioner in the law firm of Paul Erokoro & Co. annexed to the affidavit are:-
i. Judgment that is sought to be stayed.
ii. Notice of Appeal filed on the 10th of February, 2011.
iii. Another notice of appeal filed on the 10th February, 2011.
iv. Application for CTC of the Original Originating Summons in Suit No. FHC/ABJ/CS/51/2011 SENATOR OSITA B. IZUNASO VS HOPE UZODINMA & 2 ORS stamped on 10/2/11.
v. Application for CTC of the Original Originating Summons stamped on 10/2/11.
vi. Same as 5 above stamped 10/2/11
vii. PDP provisional clearance certificate issued to the Applicant.
These documents enumerated above are marked Exhibits A, B, C, D1, D2, D3 and E respectively.
The first Respondent’s 41 paragraphs counter affidavit is dated and filed on the 18th February, 2011 attached to the counter affidavit are:-
i. Record of appeal in Suit No. FHC/ABJ/CS/51/2011 HOPE UZODINMA (Appellant) VS SENATOR OSITA IZUNASO (Respondent)
ii. Acknowledgement of PDP Form CF 001
iii. List of candidates submitted by political parties to INEC for the 2011 Senatorial elections in Imo State
iv. Proceedings in Suit No, HOW/26/2011 between SENATOR OSITA IZUMIEO VS PEOPLES DEMOCRATTC PARTY and 2 ORS before the chief Judge of Imo state.
These documents are marked Exhibits A, B, C, and D respectively.
The 2nd Respondent’s counter affidavit was filed on the 21st of February, 2011. Four documents are annexed to the counter affidavit and are marked Exhibits PDP1 – PDP4. These documents will be referred to in course of this ruling where any of them becomes relevant. In addition, the 2nd Respondent filed a further and better counter affidavit of 7 paragraphs on the 22nd of February, 2011.
The 3rd Respondent’s counter affidavit of 9 paragraphs is dated and filed on the 22nd February, 2011.
Lastly the 1st Respondent filed a 19 paragraphs further and better counter affidavit in reply to the 1st and 2nd Respondents’ counter affidavit on the 22nd February, 2011.
The documents enumerated herein above, are the papers filed by parties in support of their respective cases, upon which the application herein will be determined.
During the oral hearing of this application, Mr. Paul Erokoro, learned senior counsel for the Applicant submitted that the grounds of appeal, Exhibits B and C, annexed to the supporting affidavit raised compelling issues of law and jurisdiction which are patent and easy to see. According to the learned senior counsel, the grounds of law and jurisdiction are so strong as to amount to special circumstance which will justify an order for stay of execution. In aid, learned counsel cited the case of OLUNLOYE VS ADENIRAN (2001) 14 NWLR PT.734) 699 at 714 -715.
In a further argument, learned counsel submitted that the Appellant was not served with the Original Originating Summons which commenced the suit at the lower court. Learned senior counsel directed the court’s attention to pages 45 and 46 of the supplementary record of appeal no.2 where Junaidu Muhammed, bailiff of the FHC deposed to two affidavit of service of motion on notice, written address and hearing notice on the 1st Defendant (now Appellant) on the 24th of January, 2011 and submitted that the 1st Respondent has exhibited a new affidavit of service sworn to by the same Junaidu Muhammed who averred at paragraph 2 that the originating summons was served after the appeal had been filed. According to the learned senior counsel, the new affidavit of service is annexed as exhibit M, to an affidavit of facts deposed to by Paul Okwudily Nwankwo and filed on the 21st of February, 2011 on behalf of the 1st Respondent.
This according to the learned counsel goes to confirm that the Appellant was not served with the original originating summons before the matter was heard at the lower court.
Finally learned counsel drew the Court’s attention to a letter written by the Applicant applying for a certified copy of the originating summons.
In reply, Mr. P.I.N. Ikwueto, learned senior counsel for the 1st Respondent relied on all the counter affidavits that were filed on behalf of the 1st Respondent, particularly paragraphs 8-10 of the further and better affidavit, where the Court was referred to the supplementary record of appeal (no.2) where at page 23 of the record the bailiff deposed to an affidavit of service that the originating summons was served on the Applicant herein on the 24th of January, 2011. Learned senior counsel further submitted that the Appellant/Applicant did not raise the issue of service before the lower court in his preliminary objection to the originating summons at pages 328-329 or in the motion on notice at pages 441-527, as such he cannot be heard to do so here.
Still in argument, learned senior counsel forcefully submitted that the issue of service having been raised in the notice of appeal, can only be determined on appeal. According to the learned senior counsel, a determination of whether the Appellant/Applicant was served with the originating summons will amount to a determination of the appeal at this interlocutory stage and this is not permissible in law.
In a further argument, learned senior counsel submitted that apart from the orders of declaration made against the status of the Appellant/Applicant, there is no order made against the Appellant/Applicant capable of being executed. Learned senior counsel’s contention here is that a stay of execution cannot be granted against declaratory reliefs. In aid learned counsel cited CHIEF YARO VS AREWA CONSTRUCTION LTD & 2 ORS (1998) 7 NWLR (PT-558) 368 at 387 paragraphs G-H, GOVERNMENT OF GONGOLA STATE v. TUKUR (1989) 4 NWLR (PT.117) 592 at 602 paragraph G-H.
Finally learned senior counsel submitted that the balance of convenience is in favour of refusal of this application because if the Appellant wins on appeal, he will still be entitled to be returned as elected if the first Respondent wins the election. In aid the cases of ROTIMI AMAECH v. INEC (2007) 5 NWLR (pt.1080) 227 and FMG OF NIGERIA & ORS v. MALLAM SANI (No.1) (1989) 4 NWLR (pt.117) 611 at 620 paragraphs B-D were cited.
In conclusion, learned senior counsel urged the Court to refuse the application because the judgment that is sought to be stayed has been executed. In aid learned counsel cited RES AUTO SUPPLY LTD v. AKID (2001) NWLR (PT.695) 463 at 470-471; AJEWOLE v. ADETIMO (1996) 2 NWLR (PT.431) 391 at 400-401.
Mr. Yinka Erokoto, learned counsel for the 2nd Respondent made reference to the processes filed on behalf of the 2nd Respondent and submitted that there is the need to stay the execution of the judgment of the lower court for the sake of the just determination of the appeal before this Court.
Mr. Alhassan Umaru, learned counsel for the 3rd Respondent submitted that the 3rd Respondent has complied with the judgment of the lower court, as such there is nothing to stay. Learned counsel urged the Court to dismiss the application.
On a brief reply on point of law, Mr. Erokoro, learned senior counsel for the Appellant/Applicant submitted that all the prayers sought at the tower court by the 1st Respondent which were granted are executory and are therefore capable of being stayed.
On the balance of convenience, learned senior counsel submitted that the principles in AMAECHI VS INEC is no longer applicable to elections in Nigeria on account of Section 141 of the Electoral Act 2010.
According to the learned senior counsel, the balance of convenience favours the Applicant because it is agreed by all the parties that prior to the hearing of the matter at the lower court, the Appellant/Applicant’s name had been sent to the 3rd Respondent.
On the point that the execution has been carried out, learned senior counsel submitted that any execution carried out when this motion was pending is contemptuous and should be set aside. In aid learned senior counsel cited the authorities in VASWANI VS SAVALAKH (1972) 12 SC 77; BERGER VS COMMUNITY BANK (2007) 1 NWLR (PT.1076) 540.
Before considering the submissions of parties to this application, it is necessary to state clearly that a grant or refusal of the application for stay of execution is a matter of discretion, and the exercise of such discretionary powers as vested in this Court must be exercised judicially and judiciously. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. An unsuccessful litigant applying for a stay of execution must show special circumstances which tilts the balance of justice in favour of granting the stay. What constitute special circumstances vary from case to case and the onus is on the part applying for a stay pending appeal to satisfy the Court that on the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable. See PSYCHIATRIC HOSPITAL MANAGEMENT BOARD v. DR. BAB UGOCHIKWU TOMI (1999) 13 NWLR (PT.636) 572 OKAFOR VS NNAIFE (1987) 4 NWLR (PT.64) 129.
In the instant application, learned counsel for the Applicant dwelt so much on the fact that the Applicant herein was not served with the original originating summons to which the written allegations that led to his disqualification are attached. However at paragraph 16 (e) and (f) and 17 of the supporting affidavit, the following averment are set out thus:-
“16(e) On the 27th January, 2007, the day fixed for hearing, Mr. Erokoro complained to Mr. Ikwueto that the original originating summons had still not been served and Mr. Ikwueto apologized for the failure and offered to give his own copy to Mr. Erokoro and actually handed it over.
(f) Just then, the Court started sitting and Mr. Ikwueto took back his copy of the originating summons to use in the presentation of his case and did not give it to Mr. Erokoro again.”
17. On receipt of the Record of Appeal, we discovered that the Electoral Guidelines and the petition of Festus Keyamo, which contained the allegations that were relied on by the screening Appeal Panel to “disqualify” the Appellant, were all Exhibits in the original originating summons but were not part of the Amended Originating Summons.”
With the averment at paragraph 16 of the supporting affidavit, the Appellant/Applicant’s counsel was aware of the existence of the original originating summons and had even seen the copy which was briefly handed over to him before the case was heard. If the document was so vital for the presentation of the Appellant’s/Applicant’s case, learned senior counsel would have raised the issue of non service of the process. His failure to raise the issue of service at that stage amount to waiver and he cannot be heard to canvass contrary argument to the effect that failure to serve the originating summons on the Appellant/Applicant amount to special circumstance.
However the averment at paragraphs 20 (a) (b) and (c) of the affidavit in support of the Appellant/Applicant’s motion on notice do commend the attention of this Court. I will therefore reproduce them hereunder as follows:-
“20. I was informed by the Appellant/Applicant yesterday, at the premises of the Federal High Court, Abuja, at about 12 noon, which information I verily believe to be true, that:
(a) Execution of the judgment will be detrimental and unfair to the Applicant, who was duly cleared by 2nd Respondent and issued a certificate of clearance on 6/07/2011, a copy of which is attached hereto and marked Exhibit “E”.
(b) The Applicant duly won the primaries conducted by the 2nd Respondent, scoring 2147 votes to the 1st Respondent’s 891 votes.
(c) Consequentially, the 2nd Respondent submitted the Applicants name to 3rd Respondent as the candidate of the party for the election.”
Exhibit E mentioned in paragraph 20(a) above is the certificate of clearance issued by the 2nd Respondent who is statutorily responsible for submission of the names of candidates seeking to contest elections under its platform to the 3rd Respondent. There is no such certificate exhibited to all the counter affidavit deposed to by the 1st Respondent. The 2nd Respondent has denied in its counter affidavit that it submitted the name of the 1st Respondent to the 3rd Respondent. On the contrary it has admitted that it submitted the name of the Appellant/Applicant to the 3rd Respondent. The question now is who submitted the name of the 1st Respondent to the 3rd Respondent in compliance with the judgment? The judgment of the lower court, though enforceable cannot change the modalities of submission of candidates names to the 3rd Respondent.
The averment at paragraph 5 of the counter affidavit sworn to on behalf of the 3rd Respondent states that the enrolment order of the lower court’s judgment, subject matter of this application was served on the 3rd Respondent on 28th January, 2011. For avoidance of doubt I reproduce the paragraph as follows:-
“The enrolment of order of the lower court in the judgment, subject matter of this appeal was served on the 3rd Respondent on 28th January, 2011. A copy of the enrolment of order is attached as Exhibit INEC 1.”
Paragraph 6 of the same counter affidavit states that the 3rd Respondent was compelled by the Court to recognize the 1st Respondent as the candidate of the 2nd Respondent for the Imo West Senatorial District Election in April, 2011 while paragraph 7 states that the 3rd Respondents received Form CF001 in respect of 1s Respondent on the 31/10/11 and went ahead to publish same in his constituency.
Neither the name of the person or institution from which Form CF001 was received nor the date it was published was given. The mysterious way through which the name of the first Respondent was sent to the 3rd Respondent and through whom Form CF001 was received by the 3rd Respondent have presented an exceptional and special circumstances that are required to be looked into while the status quo is maintained.
The orders of the lower court were directed against the 2nd Respondent who has the responsibility to enforce them. This fact is clearly disclosed in the claims of the 1s Respondent at the lower court. Relief 7 on the originating summons states thus:-
“A mandatory order of this court compelling the 2nd Defendant to submit the name of the Plaintiff to the 3rd Defendant as a candidate who won the 2nd Defendant’s National Assembly primary election held on 8th January, 2011 for Imo west senatorial district.”
This prayer was granted along with other prayers by the learned trial judge in the following words:-
“Having coming (sic) to this conclusion the Plaintiffs originating summons succeeds and same is hereby granted.”
The 2nd Respondent has vehemently denied submitting the name of the 1st Respondent to the 3rd Respondent. This denial has not been rebutted. It follows therefore that the judgment of the lower court has not been executed. The judgment of the lower court can only be executed if the 2nd Respondent submits the name of the 1st Respondent to the 3rd Respondent in accordance with Section 87 (4) (c) of the Electoral act 2010 which provides as follows:-
“In the case of nomination to the position of a senatorial candidate, House of Representative and State House of Assembly, a political party shall, where they intend to sponsor candidate
(i) Hold special congress in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively with delegate voting for each of the aspirant in designated centres on specific dates.
(ii) The aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party……”
Even if the orders of the lower court had been executed, this Court will not discountenance such execution on the ground that there were pending before this Court the main appeal and the application for stay of execution of those orders. In VASWANI Vs SAVALAKH (1972) 12 SC 77; which is also reported at ILC 484 at 492 paragraphs D-H; the Supreme Court per Coker JSC had this to say:-
“It is true and correct to observe that notice of appeal filed would not operate as a stay of execution and Section 24 of the Supreme Court Act makes this more clear; but it is equally correct to point out that the Section does not prescribe in favour of any execution being carried out during the pendeney of an appeal. Indeed, by its provisions it postulates that during the pendency of an appeal, the Supreme Court has got the jurisdiction to accede to an application for a stay of execution conditionally or otherwise. The Section does not give any license directly or indirectly, for the issue and execution of any processes which may ultimately be offensive. The Section simply de-limits the scope of the statutory position of the parties after the filing of notice of appeal. Clearly therefore to employ this section as a springboard for the issue and process of an inopportune execution would be an abuse of the process of the Court.”
Where an application for execution is pending in an Appellate Court, execution of the judgment that is sought to be stayed by the lower court is null and void. In such circumstances a general appraisal of the whole situation is absolutely necessary and it is most desirable that the Court should ensure that at that stage of the proceedings, it is not possible for any party to present it with a fait accompli.
In the same authority of VASWANI TRADING CO. VS SAVALAKH and CO (supra) at 495 paragraphs B-D, the Supreme Court, per Coker JSC said;
“Thus although Section 24 of the Supreme Court Act states that an appeal shall not operate as a stay of execution, it does not interfere with proceedings or an application for a stay of execution and by the same token any action or conduct of one or the other of the Parties to the action taken whilst an application for a stay of execution for a stay of execution is pending in this Court, for the obvious or subtle purpose of stultifying the exercise by this Court of its jurisdiction, and indeed its duty to consider the application on its merit, must not be countenanced by this Court.”
Although there is no equivalent provision of Section 24 of the Supreme Court Act in the Court of Appeal Act 2004, this Court has consistently followed the decision of the Supreme Court in VASWANI & CO VS SAVALAKH & CO (supra) and feels bound by that decision.
In BERGER VS COMMUNITY BANK (2007) 1 NWLR (pt.1016) 540 at 548 paragraphs C-D, this Court per Omage held:-
“It is the law that a successful litigant is entitled to the fruit of his judgment. see OKAFOR vs NNAIFE (1987) 4 NWLR (PT.64) 129- It is also true that an appeal per say does not operate as a stay of execution of a judgment. See ODOGWU VS ODOGWU (1992) 2 NWLR (PT-225) at 539.
However, in order not to inflict on the higher court a completed act, the practice has been firmly established that a fait accompli will not be imposed on the higher court when a motion is yet to be heard in the higher court. This is done to prevent impugning the jurisdiction of a superior court.”
On whether the orders of the lower court were declaratory or executory, I am of the firm view that reliefs 5-9 in the originating summons asked for specific orders directing the 2nd and indeed 3rd Respondents to perform certain duties and those reliefs which were granted along with other reliefs are very crucial to the determination of this application. They are executory.
For all I have said, the judgment of the lower court was never executed, and if there was any purported execution of the judgment aforesaid, such execution is of no consequence. There are special and exceptional circumstances warranting a grant of application for stay pending the determination of the appeal filed by the Applicant herein.
Accordingly an order is hereby made staying the execution of the judgment of the Honourable Justice A.A. Kafarati of the Federal High Court, Abuja delivered on the 28th of January, 2011, in Suit No. FHC/ABJ/CS/51/2011, pending the hearing and determination by this Court, of the Applicant’s appeal against the judgment.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Ruling of my learned brother PAUL ADAMU GALINJE, JCA, just delivered and I agree entirely with the reasons given therein and the conclusions reached.
I am also of the view that there is merit in this application and it is granted by me.
REGINA OBIAGELI NWODO, J.C.A.: I read in advance the Ruling of my learned brother Galinje JCA just delivered. His lordship has extensively dealt with the issue arising from the application. I agree with his reasoning contained therein and conclusion that there is merit in the application.
Normally a court will not deprive a successful litigant of the fruits of his litigation pending appeal. However, where an appeal against that decision will be rendered nugatory if a stay of the decision is not ordered then the court will exercise its discretion and order a stay of execution pending appeal.
The Appellant Applicant, having deposed to facts showing special circumstance, earned the exercise of this courts discretion in his favour. I hereby grant the application and subscribe to the order in the lead Ruling.
Appearances
Mr. Paul Erokoro SAN, with A, Layowu SAN, G.M. Gaian
Esq., M.A. Aguda Esq., N, Uzoegho, M. Ajara, O. Eba, Miss R.
Ogibu, Miss B. Omosun, Mr. K. Odey, S. Audu, Miss G.
Orimoloye, and M.K. OjiniFor Appellant
AND
Mr. P.I.N. Ikwueto SAN, with Chief Solo Akuma SAN,
P.O. Nwankwo Esq., and I.L. Umudu Esq.,
Mr. Yinka Orokoto,
Mr. Alhassan A. UmaruFor Respondent
