LINGO NIGERIA LIMITED & ANOR v. JULIUS NWODO, ESQ.
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of May, 2003
IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
- LINGO NIG. LTD.
2. MR. LINUS UKACHUKWU (MID LINGO NIG. LTD.)Appellant(s)
JULIUS NWODO, ESQ.Respondent(s)
IBRAHIM TANKO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): In an application filed on 13/2/2003, the applicants prayed for the following reliefs:
“1. AN ORDER of the Honourable Court staying execution of the judgment of Honourable Justice, I. U. Bello, delivered on the 18th day of November, 2003 (sic) by way of variation of his consequential order for stay of execution.
2. AN ORDER of the Honourable Court varying the order of the said Justice, I. U. Bello, ordering that the judgment sum be paid into court, until the final determination of the appeal.
3. AN ORDER of the Honourable Court directing the appellants/applicants to deposit with the said court banker’s guarantee to cover the judgment sum in lieu of depositing the judgment sum before the lower court.”
The following three grounds were set out in the application in support of the reliefs:
“1. The High Court of the Federal Capital Territory Judiciary has in the time past, experienced cases of exhibits in court being sold and money paid into court, either being embezzled by officials of the court or disappearing mysteriously.
2. That if the judgment sum is deposited into the court, there is the danger of same not getting to the appellants/ applicants in the event of their succeeding in the appeal.
3. That a banker’s guarantee on the judgment sum is as good as the money itself.”
Also, a five paragraph affidavit and some exhibits supported the application.
While moving the motion on 12/5/03, learned Counsel for the applicants applied to abandon prayer 1 of the motion. There was no objection from the respondent. Prayer 1 was accordingly struck out. Learned Counsel for the applicants submitted that his application was brought pursuant to section 18 of Court of Appeal Act; Order 3 rules 3(3) and (23) of the Court of Appeal Rules, 2002 and the inherent powers of the court. The rules of this court empower the court to grant the orders being sought. It was deposed to in the affidavit that the alternative remedy i.e. Bank guarantee is as good as money and the respondent stands to loose nothing, if bank guarantee is given. Learned Counsel cited and relied on the case of DTN Plc. v. Kusamotu (2002) 15 NWLR (Pt. 790) 401 at pages 407 paragraph 12. Learned Counsel argued that they ask for variation of the conditions of the order granted by the trial court because paying the judgment sum into the trial courts registry may lead to the danger of non-return of same in case the appeal succeeds. Learned Counsel stated that the position of the law is that an application for variation of court’s order is always at the instance of the party, who applied for stay at the lower court and it is erroneous to suggest that we have to appeal against the order. He cited the case of Construzioni General Farsura Cogefar SPA and Anor. v. NPA and Anors. (1972) 1 All NLR 509. He also referred this court to Aguda’s Practice and Procedure of the Supreme Court, the Court of Appeal and High Court of Nigeria. He urged the court to grant the application.
In opposing the motion, learned Counsel for the respondent filed a counter affidavit of 14 paragraphs sworn to by the respondent. It is accompanied by one exhibit. Learned Counsel for the respondent placed reliance on all the paragraphs of the counter affidavit especially paragraphs 6, 9, 10 and 12. Learned Counsel stated that the general rule is that a judgment creditor is entitled to the fruits of his judgment. He cited the case of L.S.D.P.C. v. City Mark (WA) Ltd. (1998) 8 NWLR (Pt. 563) 681. For the court to depart from the general rule it is for the applicants to show special circumstances. Reliance was placed on the L.S.D.P.C.’s case cited (supra). The applicants, he argued, have failed to show such special circumstances in this case. They did not contend that they could not pay the judgment sum or that if they pay it they cannot prosecute the appeal or that same, if paid to the respondent, cannot be retrieved. Again, learned Counsel urged this court to hold that the contention that exhibits get missing from the lower court is spurious, without even making the registry of the lower court to be a party to the application no facts to back up that allegation. Exhibits C and C1 annexed are strange documents which cannot confirm that exhibits deposited with lower court’s registry get missing. There is nothing wrong with the order that the judgment sum be paid into an interest yielding account in a bank. By producing a bank guarantee, the judgment debtors will keep on holding the judgment sum in their possession. Learned Counsel referred to Diamond Bank’s case (supra). He urged this court to exercise its powers to order that judgment sum be paid directly to the judgment creditor. Learned Counsel cited and relied on the case of L.S.D.P.C. v. City Bank (W.A) (supra), pages 693 – 696. Finally, learned Counsel argued that the right thing for the applicants was to appeal on that order before seeking for variation. That the applicants did not do. He urged us to hold that the authorities cited by the applicants counsel are irrelevant and that the application lacks merit and should be dismissed. In his reply on points of law, Mr. Zibiri, for the applicants, tried to draw distinction between the case of Diamond Bank v. P.I. Co. Ltd. (2001) 4 NWLR (Pt.703) 259 and the application on hand and that the facts of the two cases are dissimilar. That there is nothing inequitable in producing a bank guarantee. In answer put to him by the court on whether a bank guarantee yields any interest, Mr. Zibiri said that it does not draw interest but the interest is included in the guarantee itself. Let it be noted from the outset that a conditional stay of execution of the lower court’s judgment was granted by the learned trial Judge of the lower court. It is the terms of the stay that the applicants are not happy with and are asking for a variation of those terms. Yes! The Court of Appeal has jurisdiction and discretion under section 16 of the Court’s Act and Order 3 rule 23 of its Rules 1981 as amended, to vary an order earlier made by a trial court for stay of execution under certain circumstances at the instance of the applicant, who initially applied for an order of stay at the trial court. See: Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; First Bank of Nig. Ltd. v. Doyin Investment Nig. Ltd. (1989) 1 NWLR (Pt. 99) 634. In as much as the law allows an applicant, who applies for and was granted a stay of execution by the trial court to apply for better and more favourable terms or conditions, he must however, show very compelling exceptional circumstance, why the terms or conditions must be varied and improved in his favour. Sentinel Assurance Company Limited v. S.G.B.N. Ltd. (1992) 2 NWLR (Pt. 224) 495. In this case, Tobi, J.C.A. (as he then was) did rightly, in my view, on pages 501-502 of the report, observe as follows:
“The applicant has so much rough and turbulent storms to break through or meander. I dare say that the burden placed on an applicant for better and more favourable terms or conditions is heavier than that on a first application for stay. After all, he asked for a stay and stay the court granted. Therefore, when he wants a variation of the terms or conditions in his favour, he has a big hurdle to cross, applying all gymnastic feats with all dexterity. He must certainly improve upon his first race to have a second bite at the cherry to his taste and therefore to the distaste of the respondent.” Such an applicant can only show the appeal court having jurisdiction and discretion to vary the conditional stay granted by the trial court by deposing to facts in an affidavit spelling out the reasons why the conditions are onerous for him to fulfill or unfair to him and why they should be varied. Fawahinmi v. Akilu (1990) 1 NWLR (Pt. 127) 450 at page 469; Ladipo v. Aminike Investment Company Limited (1998) 4 NWLR (Pt. 546) 496 at pages 501-502 paragraphs G-A; Construzion’s cases (supra); Defendant Geronimo v. Janonuzelli (1924) 5 NLR 77; LSDPC v. City Bank (W A.) Ltd. (supra); Okafor v. Nnaife (supra).
Looking at the affidavit in support of the motion on hand, sworn to by Mr. Friday Ocholi, the following depositions relevant to the reliefs sought have been made:
“4(d) That the lower court had on the 29th day of January, 2003, granted the applicants application (sic) for stay of execution of the judgment, but consequently ordered that that judgment sum be deposited with the court. Attached and marked exhibit ‘B1’ is the said ruling/order of the said court.
(e) That to deposit the money with the court will be to the disadvantage of the applicants.
(f) That there has been reported cases of exhibits in court being removed from court’s custody and sold and even money paid to court disappearing mysteriously in court thereby, putting the appellant upon success on appeal in a state of hopelessness. (Attached and marked exhibits ‘C’ and ‘C1′ are documents showing instances where exhibits in court were removed and sold and money paid into court embezzled by court staff.
(g) That the appellants/applicants undertake to procure a Bankers Guarantee from a reputable Bank to cover the judgment sum.
(k) That this application will in no way prejudice the respondents as it will serve the course of Justice.
(I) That the judgment sum if deposited into court faces the risk of being tampered with and even given to the respondents before the hearing and determination of the appeal.”
In a counter affidavit filed and sworn to by the respondent, applicants’ depositions in paragraphs 4(c), (e), (f), (j), (k) and (1) were denied. The respondent further deposed:
“4. On the 29/01/03 the High Court of FCT, Coram Honourable, Justice I. U. Bello after granting the applicants application for stay of execution, in the interest of Justice made a consequential order for the judgment sum to be paid into the registry of the High Court FCT by the applicants herein in the following terms:
‘However and consequential to the order so granted it is hereby ordered that the judgment sum of N1,590,468.97 be deposited in the registry of this court pending the out come of the appeal now being pursued by the appellants at the Court of Appeal.
5. On the same 29/01/03, the Honourable Justice I.U. Bello ordered that the judgment sum to be deposited by the applicants herein be paid into an interest yielding account by the registrar of the High Court of FCT. This later part of the order could be seen on page 48 of applicants exhibit B1 thus:
‘plaintiff/respondent: we urge the court to order that the judgment sum be deposited in an interest yielding account.
Court: The judgment sum be deposited by the Registrar of this court in an interest yielding account’.
6. The applicants herein have chosen to defy and utterly disregard the above order of court even though they have the means and ability to obey the order.
7. I know as a fact that the applicants neither applied to the court below to vary the order of 29/01/03, nor have they appealed against same to this court.
10. The applicants intend to keep being in possession of the judgment sum in this suit even in utter disregard of the order of the court below that same be paid into the registry of the court below for the purposes of being paid into an interest yielding account in the interest of Justice.
12. It is not true that judgment sums are being stolen in the registry of the court below. At any event the judgment sum in this suit shall be paid into an interest yielding account by the registrar of the court below.
13. I verily believe that it is not in the interest of Justice to permit the applicants as judgment debtors to keep being in possession of the judgment sum to the detriment of the judgment creditor.”
It is true that the lower court made an order for the payment of judgment sum into an interest yielding account. (See page 48 from the bottom of exhibit B1). This order was made on 29/01/03, I observe as well that there is no appeal against the said order as the notice of appeal exhibited (exhibit B) is in respect of the lower court’s decision delivered on the 18th day of November, 2002. Let me at this juncture make it clear that for an applicant for order for variation of terms or conditions made in an order of conditional stay of judgment granted by a trial court, the applicant need not file an appeal against that order. In Rastico (Nig.) Ltd. v. Societe General De Surveillance 1990) 6 NWLR (Pt. 158) 608 at page 615, paragraph F; Babalakin, J.C.A. (as he then was), stated the law as follows:”It is settled law that a person who is not satisfied with the conditions of a stay of execution of a judgment granted him in the lower court can apply to a Court of Appeal for the variation of that order without lodging an appeal against that order itself. See the case of Oyeti v. Soremekun (1963) 2 SCNLR 320; (1963) 1 All NLR 349 particularly at page, 350 – 351.”
This debunks the contention of the learned Counsel for the respondent that no appeal was filed on the order sought to be varied by the applicants. After having scanned the depositions in the applicants’ affidavit in support, I fail to find any compelling exceptional circumstances as required by law, that will warrant varying the conditional stay granted by the lower court. Reasons advanced and supported by affidavit that Bank Guarantee is the same as the judgment debt and that depositing the money with the trial court will be to the disadvantage of the applicants and as there were reported cases of exhibits in court getting missing from the courts custody, appear to me to be mere tales with no concrete facts in support thereof. It is the responsibility of the applicants to show how depositing the money in the court’s custody or rather with an interest yielding Bank account will be to the disadvantage of the applicants. On exhibits getting missing at the lower courts registry, I am inclined to agree with the submission of learned Counsel for the respondent that such allegations are spurious. I agree the documents exhibits as exhibits ‘C’ and ‘C1’ cannot establish the allegation levied against the registry of the lower court, moreso when the registry has not been joined to defend itself against such allegations. Granted that such allegations thrive at the registry of the lower court, I do not think they are weighty and authoritative enough to defeat a court’s order. I am sure if that issue is raised for the attention of the lower court’s administration, the administration is competent enough to deal with the issue decisively. I say no more on that as I have not been convinced through evidence to hold otherwise.
Turning now to the issue of offering a bank guarantee in lieu of depositing the judgment sum in an interest yielding account in a bank, I grow so curious to know what a bank guarantee is in law.
It is granted that every enlightened person knows what a Bank is. It is a financial establishment for the deposit, loan, exchange or issue of money and for the transmission of funds. A Guarantee, on the other hand, is the assurance that a contract or legal act will be duly carried. It is something given or existing as security, such as to fulfil a future engagement or a condition subsequent. Thus, a bank guarantee is a security or undertaking given by a bank in respect of a transaction in which the bank shall be bound to fulfil it’s undertaking on demand.
(See: Blacks Law Dictionary 7th edition, Venkataramaiya’s Law Lexicon with Legal Maxims, 2nd edition, Vol. 1, 1986 reprint). It is a promise by the bank to answer for the payment of some debt, or the performance of a duty in case of the failure of another who is liable in the first instance. Thus, a bank guarantee does not generate interest. it will remain dormant. It is not same with judgment sum. See: UBN v. Nwoye (1990) 2 NWLR (Pt.130) 69. If judgment sum, as a fruit of the judgment is handed over to the judgment creditor, he can utilize it and draw benefit from it, a bank guarantee cannot be so utilized. A bank guarantee favours the applicant as the possession and utilisation of the physical money i.e. the judgment sum rests with the applicants/judgment debtor.
The whole essence of granting a stay of execution is the preservation of the res. If the court will allow a judgment debtor to be in possession of the res and retain its enjoyment, then the whole essence of stay of execution is defeated. Conversely, the courts have always frowned at the proposition that judgment sum should be in the hands of the judgment debtor, be it a bank, a financial institution or an individual, notwithstanding his financial base. It will certainly smack an unfair advantage being given to the judgment debtor. See UBN Ltd. v. Emole (1991) 9 NWLR (Pt. 213) 74; UBN Ltd. v. Odusote Bookstore Ltd. (1994) 3 NWLR (Pt. 331) 129; Diamond Bank Ltd. v. P.I. Co. Ltd. (2001) 4 NWLR (Pt. 703) 259.
In this application, learned Counsel for the applicants fails to show this court how the deposit of the judgment sum in an interest yielding account with a bank will adversely affect the applicants. He has also failed to show that the applicants opted for a bank guarantee because they would be unable to deposit the judgment sum as ordered by the lower court. I think it is reasonable that the respondent in such application is entitled to see a copy of the undertaking offered by the bank in its guarantee. That has not been exhibited by the applicants. The applicants counsel has also failed to show that payment of the judgment sum to the respondent, as is directly now being (orally) applied for by the respondent’s counsel would constitute a herculean task when it comes to recovering same from the respondent in the event of their appeal succeeding. Williams v. Busari (1973) 1 NMLR 265. In view of all these, I find myself unable to agree with the submissions made by learned Counsel for the applicants that they are entitled to more favourable conditions of conditional stay of judgment order granted by the lower court. I do not think there will be more favourable, assuring and certain conditions than the ones granted by the lower court. And in balancing, the competing interests of the parties in this application, I think maintaining the status quo i.e. maintaining the order made by the lower court will equitably meet the Justice of this case. Finally, I find no merit in this application and same is refused and dismissed hereby.
I affirm the order of the lower court. N5,000.00 costs in favour of the respondent to be paid by the applicants.
ZAINAB ADAMU BULKACHUWA, J.C.A.: I agree with my learned brother, I. T. Muhammad, J.C.A., that this application lacks merit. I hereby, dismiss it with costs of N5,000.00 to the respondent.
ALBERT GBADEBO ODUYEMI, J.C.A.: I had the privilege of reading in advance, a copy of the ruling just delivered, by my learned brother, I. T. Muhammad, J.C.A.
I am in entire agreement with the reasoning contained therein and the conclusion that the application for variation of the conditions upon which the lower court granted a stay of execution of its judgment in the first instance lacks merit and should be dismissed. I too, dismiss the application. I award costs of N5,000.00 in favour of the respondent.
Samuel Zibiri, Esq.For Appellant
Jeph C. Njikonye, Esq.For Respondent