NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY & ANOR v. HENSMOR NIGERIA LTD (2012)

NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY & ANOR v. HENSMOR NIGERIA LTD

(2012)LCN/5522(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2012

CA/L/62/2012(R)

RATIO

APPEAL: ATTITUDE OF THE APPEAL COURT TOWARDS INTERFERING WITH TERMS IMPOSED BY THE LOWER COURT

The General principle, and indeed Practice, encapsulated in Rules of Court, point to the fact that where the court below imposes terms, this court will be most reluctant to interfere with the lower courts exercise of discretion to vary the terms HANSARD V. LETHBRIDGE (1891) 8 T.L.R. 179.

However, the Court of Appeal reserves the power to vary an order of stay of execution which power is discretionary, much the same way as the power of granting it. But this discretion admits of its being exercised not only judicially but judiciously.

Decidedly an Applicant who is not satisfied with the conditions and/or terms imposed in the grant of a stay can seek variation of the order – OYETI V. SOREMEKUN (1963) 1 ALL NLR. 349; ABINA V. TIKATORE PRESS (1968) 1 ALL NLR 210. PER RITA NOSAKHARE PEMU, J.C.A.

ORDER: REQUIREMENT IN CONSIDERING AN APPLICATION FOR VARIATION OF THE CONDITION OF STAY OF EXECUTION

It is necessary to emphasize that the onus is on the Applicants, who is seeking the Court to modify the condition for the stay granted by the lower Court, to show that the conditions are onerous or harsh or unfair to him, and thus deserve to be varied – RATISCO (NIG) LTD v. SOCIETE GENERAL DE SURVELLANCES (1990) 6 NWLR (PT.158) 608, SENTINEL ASSURANCE Co. LTD (supra).

This burden of showing that the conditions of the stay are onerous and deserve to be varied, has been stated in decided cases, to be in addition to the earlier burden or hurdles, that the Applicants may have passed at the trial Court, when he sought for the exercise of the discretion in his favour in granting the stay KOPEK CONSTRUCTION LTD V. EKISOLA (1998) 10 NWLR (Pt. 568) 120.

As Tobi JCA (as he then was) in SENTINEL ASS. CO. LTD V. S.G.B.N. LTD (supra) rightly observed at pages 501-502 paragraphs H-A.

“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 or more favourable terms or condition 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 and 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 of his taste and therefore to the distaste of the Respondent” PER RITA NOSAKHARE PEMU, J.C.A.

COURT: DUTY OF A PARTY URGING THE COURT TO INVOKE ITS EQUITABLE JURISDICTION

It is trite that although the Courts of law in this country, by their jurisdictional set up, and indeed their institutional apparatus, operate both the principles of common law and the doctrines of equity, it is settled, that a party urging the Court to invoke its equitable jurisdiction in his favour, when seeking an equitable remedy (as in the present application) must satisfy the Court, by averring to convincing facts, articulated by the law, why the particular equitable remedy should be granted. PER RITA NOSAKHARE PEMU, J.C.A.

EQUITABLE REMEDY: NATURE OF STAY OF EXECUTION

It therefore stands to reason, that being an exception to this basic rule, an Applicant has a duty, indeed an arduous one, to prove to the satisfaction of the Court that the application should be granted. The Preservation of RES is a very important area of proof. In other words, the Applicants must prove to the satisfaction of the Court that if the application is not granted, the RES will be in danger of being destroyed or annihilated – OKAFOR v. NNAIFE (1987) 18. N.S.C.C. (Pt. 1) 737; KIGO (NIG) LTD. v. HOLMAN BROS LTD. (1980) 5-7 SC 60; UTLC GAS V. PAN AFRICAN BANK (1974) 10, S.C. 105. PER RITA NOSAKHARE PEMU, J.C.A.

ACTION: DUTY OF A DEPONENT RELYING ON HARDSHIP

A deponent who relies on hardship must go outside the mere expression of hardship, by indicating or itemizing specific acts constituting hardship. PER RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

H. M. OGUNWUMIJU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

M. A. DANJUMA Justice of The Court of Appeal of Nigeria

Between

1. NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY
2. ENGINEER DOMINIC ALIM Appellant(s)

AND

HENSMOR NIGERIA LTD Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Lead Ruling): The Appellants/Applicants have brought this notice in a motion filed on the 17th day of May, 2012, praying this Honourable Court for the following viz:

1. That the Appellants/Applicants be granted an extension of time within which to apply for an order varying or alternatively discharging the order of the Federal High Court made on the 3rd day of February, 2012 that the Judgment debt of Six Billion Naira be paid to the Chief Registrar of the Federal High Court within 14 days pending the determination of the appeal herein.

2. An order varying or alternatively discharging the order of the Federal High Court made on the 3rd day of February, 2012 that the Judgment debt of Six Billion Naira be paid to the Chief Registrar of the Federal High Court within 14 days pending the determination of the appeal herein.

3. An Order that there be an accelerated hearing of the Appeal filed herein against the Judgment of the Federal High Court dated 2nd December, 2011 awarding damages of Six Billion Naira to the Respondent.

And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The application is supported by an affidavit of nineteen (19) paragraphs sworn to by one Bibiana Orekyeh, a lawyer, in the chambers of Louis Mbanefo & Co, who is representing the Appellants/Applicants.

Annexed to the affidavit in support of the application are Exhibits “BO1”, “BO2”, two Exhibits marked “BO3” and Exhibit “BO4” respectively.

Exhibit “BO1” reads “Amended Notice of Appeal” Exhibit “BO2” is Certified True Copy of the Ruling of the Honourable Justice O.E. Abang of 3rd February, 2012 in Suit No. FHC/L/CS/909/10 whereby he ordered thus while staying the Judgment of the Court.

“That the 1st Judgment Debtor, Nigerian Maritime Administration and Safety Agency shall within fourteen (14) days from today pay into this Court the adjudged sum of $39,637,000.00 or its name equivalent plus N5, 040,000.00 being the judgment sum in this matter.”

Exhibit BO3 are two. They are Certified True Copy of Notice of Appeal filed on 10th May, 2012 and Notice of Withdrawal of Appeal from the Supreme Court dated 15th May, 2012 and filed on the 16th May, 2012.

Exhibit “BO4” is the Appellants’ Brief of Argument.

The Appellants/Applicants bring this application ostensibly pursuant to Order 7 Rules 1, 3 and 10: Order 18 Rule 11 of the Court of Appeal (Civil Procedure) Rules 2011, and Section 17 of the Court of Appeal Act Cap C 36 FRN 2004 and under the Inherent Jurisdiction of this Honourable Court.
Let me quickly observe here that there is no Law known as the Court of Appeal (Civil Procedure) Rules 2011.

This is because the Court of Appeal Rules 2011 has in its General Provisions as to short title in order 1 Rule 1 thus:-

“These Rules may be cited as the Court of Appeal Rules, 2011 and shall come into force on the 1st day of April, 2011.”

Learned senior counsel should in future, endeavour to cite Laws and Rules accurately, in order not to mislead the Court and indeed the adverse party. This is desirable.

Order 7 Rule 1 of the Court of Appeal Rules 2011 has this to say:

“Every application to the court shall be by Notice of Motion supported by affidavit and SHALL state the Rule under which it is brought and the ground for the relief sought” (Underlined for emphasis)

Ex facie, the application before us has no ground and/or grounds for the reliefs sought as required by law. There is/are no ground upon which the application is anchored. This is a travesty of the Rules of this Court.

Order 7 Rule 3 of the Court of Appeal Rules 2011 has this to say-

“Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal”

Now in his prayer 1, the Appellants/Applicants seek extension of time. Regrettably, nowhere in the nineteen (19) paragraphs affidavit, has the Applicants averred that they were out of time, neither did they give reasons why this Honourable Court should afford them this relief (assuming he was out of time). This relief is therefore at large. It is not the function of this Court to fill in the lapses inherent in a party’s case, as its function is wholly adjudicatory. It is not the function of Court by its own exercise and ingenuity to supply the reasons for the Applicants’ delay in filling this present application.

Now Order 7 Rule 10(2) of the Court of Appeal Rules 2011 has this to say-

“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting further good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard…”

Although the above provisions relate to extension of time within which to appeal, I am of the view that the principles which apply to the Courts’ granting of extention of time are fixed, as the Applicants must provide reasons why extention of time is required in a given situation, which will enable the Court exercise his discretion in their favour. This they have not done.
I have made my observations regarding how the rules relied on by the Applicants in bringing this application cannot avail him. It seems to me that the Applicants are misconceived because they have failed to comply with the Rules which they rely on, in bringing this application.
It is an elementary principle of Law that rules of court must be obeyed. I am of the view that regarding relief one; the Appellants/Applicants have failed to show how and why they needed time to be extended in their favour to bring this application. He had proffered no reasons for filing this application out of time.
Ideally, this reason alone knocks the bottom off this application as it is which makes this application liable to be struck out. But I shall consider the other reliefs for what it is worth, for justice sake.
The Appellants/Applicants have, as the main thrust of their application, sought an order varying or alternatively discharging the Order of the Federal High Court made on the 3rd day of February, 2012, that the Judgment debt of Six Billion Naira be paid to the Chief Registrar of the Federal High Court within 14 days pending the determination of the appeal herein.

In Paragraphs 8 and 9 of the supporting affidavit to this application, the Applicants had averred thus:

PARAGRAPH 8
“That by a Motion on Notice dated the 7th day of February, 2012; the Appellants/Applicants sought from this Honourable Court an order of unconditional stay of execution of the aforesaid Judgment of the Federal High Court”

PARAGRAPH 9
“That in a Ruling delivered on the 9th day of May, 2012, this Honourable Court struck out the said motion on the grounds that it neither sought a variation nor a discharge of the aforesaid Ruling of the Federal High Court and that a copy of the Ruling of the Federal High Court was not annexed to the Motion”

A cursory look at this application and its annexures, show that the Appellants/Applicants has failed to annex a copy of the said Ruling of this Honourable Court of 9th May, 2012 to his application. He thus re-committed the sin which he did and for which his earlier application to this Court was afore refused in this Honourable Court.

I shall look at the submissions of respective Counsel in Court, on the 26th of June, 2012, when his application was taken.
Learned senior counsel for the Appellants/Applicants L.N. Mbanefo SAN submits that the learned senior counsel for the Respondent Kola Awodein SAN has filed no counter affidavit. Therefore the averments in the affidavit in support of his application remain unchallenged.
He submits that he has a further affidavit filed on the 19th of June, 2012 and that the lower court is proceeding presently with the garnishee proceedings.
It is his contention that once there is an application for a variation, as well as an appeal, the lower court should hands off the matter, pending this Court’s determination of the application before it.
He submits that there is a motion for accelerated hearing, and that the Grounds of Appeal contain serious issues of law, citing DENTON-WEST V. MUOMA (2008) 6 NWLR. Part 1083 at 418 @ 446. He orally asks for a conditional stay.
Kola Awodein SAN, while opposing the application on points of law, submits that the order itself for variation does not say what the Applicants want varied. It is not precise and does not say in what terms he seeks to vary citing SENTINEL ASS. CO. LTD. v. S.G.B.N. (1992) 2 NWLR Pt. 224 at 495.
Furthermore, he submits that the order to discharge is innocuous, as there is no appeal against the order. He contends that the Law is that there must be compelling circumstances to necessitate the varying of conditional stay. Howbeit, he submits that the Applicant has not made out any case at all in this regard.
He submits that paragraphs 13, 14 and 15 particularly paragraph 13(c) offend the provisions of the Evidence Act 1990. He argues that these particulars do not set forth the facts, nor particulars of the time, place and circumstances of the information deposed to.
That assuming these particulars are admissible, the only thing they said is that they will be adversely affected, if the money is paid. They have not said how.
Referring to paragraph 13(c), he submits that the Appellants has said that he has the money.
Learned silk did inform court that he had indeed filed a counter affidavit on the 25th of June, 2012.
It is pertinent to consider first the submissions of learned senior counsel to the Respondent that paragraphs 13C, 1-4 and 15 of the supporting affidavit to the Appellants’ application offend the provisions of the Evidence Act, because they do not set forth the facts, nor particulars of the time, place and circumstances of the information deposed to.
It would be necessary to reproduce these paragraphs to see how viable this submission is.

PARAGRAPH 13
“That I am informed by Mr. Patrick Akpobolokemi the Director-General of the 1st Appellants/Applicants of the following facts which I verily believe.
a…….
b…….
c. That the 1st Appellant/Applicant being a very viable parastatal of the Federal Government with considerable resources at its disposal will meet its lawful obligations in the event that the Appeal herein goes against it. Its resources are the property of the Federal Government…”

PARAGRAPH 14
“That I am informed by Mr. Akpobolokemi aforesaid and verily believe him that the operation of the said Appellant/Applicant would be very adversely affected if the sum of Six Billion Naira is tied down pending the determination of the appeal herein in a bank under the control of the Chief Registrar of the Federal High Court pending the determination of the appeal herein.

PARAGRAPH 15
That I have been informed by the Appellants/Applicants’ leading counsel, Mr. L.N. Mbanefo SAN and I verily believe him that:-

(i) The grounds of appeal contained in the Notice of Appeal herein raise substantial issue and recondite points of law and that the appeal is capable of being decided in the Appellants/Applicants’ favour.

(ii) The appeal involves the determination of a matter in the public interest, namely, the powers of a Federal Government Agency to detain vessels on grounds of unseaworthiness.”

While it is my view that paragraphs 13C and 14 do not offend the provisions of Evidence Act, however the facts deposed to in paragraph 15 amount to legal argument and conclusions in law and offend the provisions of Section 87 of the Evidence Act 1990 and is liable to be struck out, and same is hereby struck out.
The General principle, and indeed Practice, encapsulated in Rules of Court, point to the fact that where the court below imposes terms, this court will be most reluctant to interfere with the lower courts exercise of discretion to vary the terms HANSARD V. LETHBRIDGE (1891) 8 T.L.R. 179.
However, the Court of Appeal reserves the power to vary an order of stay of execution which power is discretionary, much the same way as the power of granting it. But this discretion admits of its being exercised not only judicially but judiciously.
Decidedly an Applicant who is not satisfied with the conditions and/or terms imposed in the grant of a stay can seek variation of the order – OYETI V. SOREMEKUN (1963) 1 ALL NLR. 349; ABINA V. TIKATORE PRESS (1968) 1 ALL NLR 210.

In considering an application for variation of the condition of stay of execution, the cardinal requirement under the principles of Justice is to duly consider equitably, the respective and competing rights to maintaining a balance in the parties position, and doing substantial justice to them. This is no doubt in accord with the need for a judicious exercise of discretion in dealing with an application for stay of execution – C.G.F.C.S.P.A. v. NIGERIA PORTS AUTHORITY (1972) 12 S.C. 107; WILLIAMS v. ALHAJI (1973) 2 SC. 19, SENTINEL ASSURANCE CO. LTD. V. S.G.B.N. LTD (1992) 2 NWLR. (pt. 224) 495; KOPEK CONSTRACTION LTD. V. EKISOLA (1998) 10 NWLR (pt. 568) 120.
It is necessary to emphasize that the onus is on the Applicants, who is seeking the Court to modify the condition for the stay granted by the lower Court, to show that the conditions are onerous or harsh or unfair to him, and thus deserve to be varied – RATISCO (NIG) LTD v. SOCIETE GENERAL DE SURVELLANCES (1990) 6 NWLR (PT.158) 608, SENTINEL ASSURANCE Co. LTD (supra).
This burden of showing that the conditions of the stay are onerous and deserve to be varied, has been stated in decided cases, to be in addition to the earlier burden or hurdles, that the Applicants may have passed at the trial Court, when he sought for the exercise of the discretion in his favour in granting the stay KOPEK CONSTRUCTION LTD V. EKISOLA (1998) 10 NWLR (Pt. 568) 120.
As Tobi JCA (as he then was) in SENTINEL ASS. CO. LTD V. S.G.B.N. LTD (supra) rightly observed at pages 501-502 paragraphs H-A.

The question is whether the Applicants have adverted their minds to this big hurdle which they must cross and if so, applied themselves appropriately thereto?
It is trite that although the Courts of law in this country, by their jurisdictional set up, and indeed their institutional apparatus, operate both the principles of common law and the doctrines of equity, it is settled, that a party urging the Court to invoke its equitable jurisdiction in his favour, when seeking an equitable remedy (as in the present application) must satisfy the Court, by averring to convincing facts, articulated by the law, why the particular equitable remedy should be granted.

Stay of execution, being an equitable remedy, is exception rather than the rule, that a party in victory must not be denied the fruits of his victory. He must return home with victory for real, not based on mere rhetorics. It must be PROLIFIC VICTORY – MILITARY GOVERNOR OF LAGOS STATE & ORS V. CHIEF OJUKWU (1986) 1 NWLR (Pt. 18) 621; LIJADU V. LIJADU (1991) 1 NWLR (Pt. 169) 627; DITA LTD. V. WEMA BANK LTD (1997) 4 NWLR 629 paragraphs a-b.
It therefore stands to reason, that being an exception to this basic rule, an Applicant has a duty, indeed an arduous one, to prove to the satisfaction of the Court that the application should be granted. The Preservation of RES is a very important area of proof. In other words, the Applicants must prove to the satisfaction of the Court that if the application is not granted, the RES will be in danger of being destroyed or annihilated – OKAFOR v. NNAIFE (1987) 18. N.S.C.C. (Pt. 1) 737; KIGO (NIG) LTD. v. HOLMAN BROS LTD. (1980) 5-7 SC 60; UTLC GAS V. PAN AFRICAN BANK (1974) 10, S.C. 105.Now in the instant case, the Applicants had been granted a stay of execution in the lower court but on terms, which they consider stringent and steep. They have therefore approached this Court for softer conditions, which would serve as a cushion to his plight. Let me quickly state here that this same Applicants had come with a similar application in May this year i.e. 2012, and same was refused.
But, with respect, the question is whether he can get this present application by the mere asking for it. I think not. The law will, in most cases lean in favour of the conditions laid down by the Court below, unless the Applicant is able to show compelling and exceptional circumstances, why the terms and conditions already given by the lower court must be varied in his favour.

In deciding whether the Applicants, have met the degree required in obtaining such an order as they seek, a cursory look at the affidavit in support of their application is a sine qua non. Indeed the affidavit is the answer.
Are the facts deposed to in the supporting affidavit to this application deserving the sympathetic hands of equity? Have they satisfied the burden?
Let me reproduce the following paragraphs in the supporting affidavit to this application for purposes of elucidation. They are paragraphs 12, 14 and 17.

PARAGRAPH 12
“That the motion herein seeks a variation of the aforesaid conditional stay of Execution or, alternatively, the discharge of the said order requiring that the judgment debt be paid into court by the Appellants/Applicants”

PARAGRAPH 14
“That I am informed by MR. AKPOBOLOKEMI aforesaid and verily believe him that the operations of the said Appellants/Applicants would be very adversely affected if the sum of Six Billion Naira is tied down pending the determination of the appeal herein in a bank under the control of the Chief Registrar of the Federal High Court pending the determination of the appeal herein”

PARAGRAPH 17
That it is in the interest of Justice that the application herein be granted, moreso as the funds of the Appellants/Applicants are for the maintenance of Maritime Security of Nigeria”

With respect, the facts deposed to in paragraphs 14 and 17 of the supporting affidavit seem to me to be based on sentiments which have no place in our adjectival law and indeed the jurisprudence of our courts. God is no respecter of persons even as the Law is no respecter of persons. It is not enough for the Applicants, to weep up sentiments, as the courts turn blind eyes to such gesture.

A deponent who relies on hardship must go outside the mere expression of hardship, by indicating or itemizing specific acts constituting hardship. There must be enough material to incur the wielding of the Courts discretion in the Applicants’ favour.

The Applicants had in paragraphs 13(c) and (d) of their supporting affidavit deposed thus:

13(c) “That the 1st Appellant/Applicant being a very viable parastatal of the Federal Government with considerable resources at its disposal, will meet its lawful obligations in the event that the Appeal herein goes against it. Its resources are the property of the Federal Government”

13(d) “That there is currently no budgetary allocation by the National Assembly in relation to the aforesaid judgment debt”

The above averments do not in my view connote hardship. Paragraph 13(c) shows that they are viable enough and indeed are endowed with considerable resources. If that is the case, then one may ask, why would they want to deprive the Respondent of the fruits of his victory? Moreso as the money is to be paid not directly to the Respondent, but to be paid to the Chief Registrar of the Federal High Court.

The law is elementary that a party seeking a remedy must be definite and precise on what he really wants. He must be clear and concise on the order he desires from the Court. If he is vague, fluid or expresses in general terms, his application would fail and be refused.
It is my humble view that it is grossly apparent, that the Applicants have failed to show facts, and circumstances that would necessitate this Court’s invocation of its discretion in their favour.
To simply say that the resources of the Applicants is the property of the Federal Government, and that he would be very adversely affected if the sum of Six Billion Naira is tied down is not enough. These facts lack definition and are bereft of specificity.
I must commend learned senior counsel for the respective parties for their efforts, particularly learned senior counsel for the Applicants, but regrettably his efforts were bedeviled by his losing sight of the legal requirements expected of him in an application such as this.
Learned counsel for the Respondent told Court that he had filed a counter-affidavit on the 25th of June, 2012. I must say that Appellants’ application would have failed for its lack of merit, even in the absence of a counter-affidavit.
I had earlier on in this Ruling identified the lacunae in this application as reflected in the form and indeed substance by which it was presented.
The Applicant had in his prayer 2 sought an alternative relief – i.e. to discharge the Order of the Lower Court. This is a gross misconception, as the Rules of the Court of Appeal do not provide this Court with such power. There simply no law for it. This Court can only vary such Order and not discharge it.
Regarding the third prayer which is for accelerated hearing, there is nothing in the supporting affidavit stating why hearing of the Appeal should be accelerated. The Appellants did not allude to any facts in their supporting affidavit why they desire accelerated hearing neither did they ask that the prayer be struck out. The consequence is that same is deemed abandoned.
It is regrettable that in an application such as this, the Applicants’ supporting affidavit is devoid of facts, albeit material facts which would have helped this court to accord a sympathetic consideration to the application. Let me reiterate that there is dearth of facts as to why they desired extension of time. There is dearth of facts to show why the Order of the Lower Court should be varied, and indeed dearth of facts why the Appeal should be accorded accelerated hearing.
The result is that this application is devoid of merit. It is vexations, one calculated to irritate the adverse party who has been adjudged victor by the Lower Court.

He who comes to equity must do equity.
Not only is this application grossly incompetent, as to form, but also on its merits. Same is devoid of merits and deserves to be dismissed.
The application is refused and same is hereby dismissed in its entirety with N30, 000.00 costs in favour of the Respondent.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned sister RITA NASAKHARE PEMU, JCA. I agree with the reasoning and conclusion that the application is wholly without merit and must be dismissed.
I abide by the order as to costs.

M.A. DANJUMA, J.C.A.: Where an order of a court is subsisting and there is no appeal against it, it is to all intent and purposes a competent order. The effect is that even if the order were to be a nullity it is still a subsisting and valid order of a court of competent jurisdiction, and it must therefore not be ignored or discontinued without it being set aside, first.
Thus, an order or judgment of a court of competent jurisdiction remains Valid and binding on the parties concerned and privies until it is set aside, by due process of law.
See NWORA V. NWABUEZE (2011) 17 NWLR (Pt 1277) page 699 wherein it was held thus:-
“In the instant case, the Supreme Court was bound to give effect to the order of the Court of Appeal striking out appeal No. CA/E/30/2009 on the 3rd of March, 2009, notwithstanding the appellant’s contention of not being aware of the older. AKINLARIN V. AKINNULA (1994) 3 NWLR (pt 335) 59 referred paras E – H.”
The order of conditional stay of execution, made by the Federal High Court attaching judgment sum by ordering its deposit in an interest yielding account opened by the CR FHC and for affidavit of compliance to be filed within 2 weeks thereof remains valid subsisting and binding, until and unless set aside by an appellate court, i.e. this court through an appeal.
Variation may however be made as an equitable relief. However conditions must be shown to the satisfaction of the court why the discretion should be exercised in altering the order to the benefit of the Applicant.

In this case, notwithstanding that the Applicants don’t consider the order as just and fair or reasonable upon the reasons adumbrated on their Notice of appeal; can the conditional order be varied? Yes, it could, in the general equitable discretion of the court Nonetheless par C, negatives the need for the grant of the application as the Applicant by the said averment thereat has shown that there was no need to vary the order as made either in terms of guantum of the sum or in any manner what so ever. In any case, the alternative mode or option to constitute the variation has not been shown by the applicant. I find no material to base the application thereon.
Essentially the affidavit evidence in support of the instant motion would appear to profer only reasons that could have justified an application for stay of execution.
It is also curious that the affidavit evidence in deposition appears to be self contradictory in the effect and intent thereof.
For one, paragraph 14 of the affidavit is a challenge to the order already made for a conditional stay by deposit in an interest yielding account not to be controlled by the applicant.
In a judgment debt, the creditor is entitled to the benefit of his judgment; this should not be interfered with except upon strong reasons.I do not see the affidavit evidence as disclosing any strong or recondite reason to warrant the variation of the judgment or order, which subsists until set aside or decided otherwise in the determination of the appeal.
However, I see good and substantial reasons for the grant of an accelerated hearing in this case, upon the reasons or grounds eloquently averred in the supporting affidavit. Paragraphs 3-5 of the further affidavit provide good reasons why accelerated hearing should be ordered.
It is however curious that by paragraph 7 of the supporting affidavit the Applicant seeks an amorphous order i.e. an order for variation and stay of execution at the same time.
How can the two remedies or reliefs co-exist? Or is it a prayer for varying the conditional stay by converting it to an unconditional stay that was refused at the trial court? There is no appeal thereto. The garnishee proceedings had commenced before the appeal was entered. There can be no complaint against the proceeding that had taken place before the appeal as the subsisting order made upon the erstwhile proceedings would not render nugatory the hearing of the appeal.
What is more, the competing rights of the parties to justice are in favour of refusing this application for the reliefs of stay of execution and/or variation.
It is for the above little contribution and the detailed thoughts of my lord RITA NOSAKHARE PEMU, JCA, which I adopt as mine that I too refuse the application in the following manner:-

1. The order of stay of execution is unwarranted and fails.
2. Order of variation is refused.
3. Accelerated hearing granted.

Appearances

L.N. MBANEFO (SAN) WITH HIM B. OREKYEH (MRS) AND C. MEGAFU (MRS)For Appellant

AND

K. AWODEIN (SAN) WITH HIM I.O. ZAID, M.A. GBADAMOSI AND P.N. OMORIDONFor Respondent