NNAMANI BE NNAJI NWOBODO v. OKIDA AKKAH (2016)

NNAMANI BE NNAJI NWOBODO v. OKIDA AKKAH

(2016)LCN/8172(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of February, 2016

CA/E/234M/2014(R)

RATIO

PRACTICE AND PROCEDURE: STAY OF EXECUTION; LIST OF PRINCIPLES TO SERVE AS BEACONS TO GUIDE THE COURTS IN CONSIDERING THE ISSUE OF STAY OF EXECUTION
The Court should be mindful when faced with an application for stay of execution to ascertain that such an application is not merely a ploy to stall the proceedings but that the applicant has germane reasons for bringing such an application. This Court per Onalaja J.C.A. has formulated a comprehensive list of principles to serve as beacons to guide the Courts, be it of first instance or an appellate Court in considering the issue of stay of execution. See P.H.M.B v. Utomi (1999) 13 NWLR (Pt. 636) P. 572 at 574-575,
The locus classicus in Nigeria is Vaswani Trading Co. Ltd v. Savalakh & Co (1972) All NLR 922; (1972) 12 SC 50. See also Ajomale v. Yaduat (2) 1991 5 NWLR (Pt.191) Pg.266; Akilu v. Oduntan & Ors (1991) 2 NWLR (Pt.171) Pg.1. The following principles have been established in the long line of cases.
”1. The Courts have the unimpeded discretion to grant or refuse a stay. In this and in all other instances of discretion, the Court is bound to exercise the discretion both judicially and judiciously and not erratically
2. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent?s equal right to justice is a discretion that is not judicially exercised.
3. A winning plaintiff or party has a right to the fruits of his judgment and the Court will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is entertained.
4. An unsuccessful litigant applying for a stay of execution must show special or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay.
5. What will constitute these special or exceptional circumstances vary from case to case. However, such circumstances involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or judgment or foist helplessness or render nugatory any order or orders of the Appellate Court
or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally produce 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.
6. The onus is on the party 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.
7. The Court will grant a stay where its refusal will deprive the appellant of the means of prosecuting the appeal.
8. The chances of the applicant on appeal are important. If the chances are virtually nill, a stay may be refused.
9. The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case.
10. Whether if the appeal succeeds the appellant will not be able to reap the benefits of the judgment on appeal.
11. Whether the judgment is in money and costs and whether there is a remarkable probability of recovering these back from the respondent if the appeal succeeds.
12. Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting the appeal.
See also Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Martins v. Nicanner Foods Co. Ltd (1988) 2 NWLR (Pt. 74) 75 per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

APPEAL: ONUS OF PROOF; WHICH OF THE PARTIES HAS THE ONUS TO SATISFY THE APPELLATE COURT THAT A REFUSAL OF STAY WOULD BE UNJUST AND INEQUITABLE

The onus is on the Applicant to satisfy this Court that in the circumstances, a refusal of stay would be unjust and inequitable. He must show cogent reasons to deny the Respondent enjoyment of his success at the Court below. See Olatunji v. Owena Bank PLC (2008) LPELR-2578 (SC); (2008) 8 NWLR (Pt.1090) 668. There is the necessity of an applicant applying for a stay of execution to demonstrate that his appeal has merit. See T.S.A Industries Ltd v. Kema Investments Ltd (2006) LPELR-3129 (SC). per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

NNAMANI BE NNAJI NWOBODO Appellant(s)

AND

OKIDA AKKAH Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling): This is a motion for stay of execution of the Judgment of the Enugu State High Court delivered on 2/2/14 by the Chief Judge, Hon. Justice I.A. Umezulike in Suit No E/718/96 pending the determination of the appeal lodged by the Appellant/Applicant in this Court. The undisputed facts that led to this application are as follows:-
In October 1986, the Appellant/Applicant agreed to sell the property known as 3B Mount Close Awkunanaw, Enugu to offset the Applicant?s indebtedness to Cooperative and Commerce Bank Ltd. The Respondent paid the sum of N93,000 into the account of the Applicant at the Cooperative Commerce Bank Ltd. The Applicant claims that the N93,000 was deposit with the balance left to be paid. The Respondent contends that the property was offered to him at the price of N93,000. On 17th December, 1986, Applicant signed a Deed of Assignment of the property over to the Respondent. Applicant claims that he did not know the purport of the document and he only signed it because the Respondent, knowing the Applicant was illiterate misled him to believe that

the document was an instrument to enable the Respondent get a loan from First Bank PLC to pay the balance of the agreed purchase price to the Applicant.

The Applicant who was Plaintiff at the trial Court had sought for a declaration that the Deed of Assignment dated 17/11/86 he made in favour of the Respondent should be set aside as null and void and an Order that the Respondent be compelled to receive the refund of N93,000 to be made by the Applicant/Appellant, return of the Deed of Lease in respect of the property etc. The Respondent counter-claimed for arrears of rent and accounts from Nov 1st 1990 to date of judgment.

The trial Court in a considered judgment dismissed the case of the Applicant and denied all the reliefs sought by him, the counter claim of the Respondent however succeeded.

Dissatisfied with the judgment of the trial Court, the Appellant/Applicant appealed against the decision by a Notice of Appeal dated and filed on 05/02/14, containing 4 grounds of appeal. An application for stay of execution of the judgment to the trial Court was dismissed by the trial Court.

The Applicant being dissatisfied with the ruling of the

trial Court has by a motion on notice filed on 21/04/15 brought an application for an Order staying the execution of the judgment of the Enugu State High Court delivered on 02/02/14 by Hon. Justice I.A. Umezulike. The motion is supported by a 20 Paragraph affidavit and a further affidavit filed on 02/09/2015. The only relevant depositions in the affidavit in support of the application are Paragraphs 17-19 which read as follows:
”17. That the Respondent is very keen on selling or alienating the property forming the subject matter of this suit.
18. That my counsel Dr. G.C. Oguagha informs me, and I verily believe him, that my grounds of appeal contain substantial issues of law to be argued on appeal.
19. That my said counsel informs me, and I verily believe him, that my appeal is likely to succeed.”
The pertinent depositions in the further affidavit are in Paragraph 2 as reproduced below:
”2. That my counsel Dr. G.C Oguagha has informed me and I have verily believed him as follows:
a. That the learned trial judge in his judgment relied

exclusively on a Deed of Assignment tendered as Exh 11, as can be seen from PP. 35 to 38 of his said judgment.
b. That the said Exh. 11 was roundly attacked by my said counsel in his final address as being null and void and of no effect because, amongst other things, it was fraudulently obtained by the Defendant/Respondent.
c. That the numerous submissions to nullify the said Exh. 11 made by my said counsel were duly reproduced by the learned trial judge at pp. 25 to 35 of his said judgment.
d. That the learned trial judge completely failed to consider these submissions, after having copiously recounted them (at pp 25 to 35 of his judgment); thus treating them as if they were never made.
e. That, specifically, the learned trial judge failed to consider the issue of misrepresentation on the ground that I was an illiterate who did not know or understood the contents of the said Exh.11, which was prepared by the Defendant/Respondent (who was a lawyer of over 34 years), and who induced me to sign it that it was a document that would enable him (the Defendant/Respondent) to

obtain a further loan from his employers to complete payment of the purchase price of the property.
f. That I did not know that it was a Deed assigning the said property to the defendant. This submission is recounted by the learned trial judge at pp. 29 to 30 of his judgment.
g. That the Applicant?s case was mainly based on the nullity of the said Exh. 11 and formed the principal issue submitted to the trial Court for determination (p.18 lines 4-5 of his judgment) but the learned trial judge completely failed to consider and determine this issue.
h. That also the learned trial judge failed to consider the issue that the Defendant/Respondent did not complete the purchase price of the property, and has not done so up till date. This issue raised by my counsel is recounted at pp. 26 to 29 of his judgment by the learned trial judge.
i. That on the whole, the learned trial judge devoted 18 pages out of his 38 page judgment to elaborately reproducing the numerous submissions made by my counsel, but completely failed to consider any of them; and yet he declared that

Exh. 11 remain unimpeached (p. 37, last paragraph of his judgment).
j. That the learned trial judge upheld the defendant?s counter-claim, and granted the reliefs claimed by him without showing how the defendant succeeded in proving his said counter-claim, and his said reliefs (P.37, last Paragraph to 38 of his judgment).

The Respondent filed a 13 Paragraph counter affidavit on 30/05/15. Paragraphs 3-8 are reproduced as follows:
3. That Paragraph 10 of the appellant/applicant?s affidavit is not true, and I hereby give an undertaking that the res in this appeal will not be alienated, destroyed or re-structured if the application is denied pending the determination of the appeal.
4. That ownership or interest in the said property no longer vests on the appellant/applicant but on me by the judgment of the Court below.
5. The appellant/applicant has been in possession of the property the subject matter of this Appeal since 1986 and has been collecting rent from the 6 (six) flats and utilizing same for himself

though he sold the property to me in 1986.
6. That the appellant/applicant wants the judgment of the Lower Court to be stayed while he continues to enjoy rent collected in the property that the Lower Court has adjudged me to be the owner.
7. The grounds of appeal contained in the Notice of Appeal do not contain any substantial issue of law to be argued on appeal.
8. The materials for the grant of stay of execution pending appeal are not available in the appellant?s grounds of appeal or on the motion paper.

RESOLUTION
The application before this Court is for an Order staying the execution of the judgment of the Court below. A stay of execution is an equitable remedy. An Order for stay of execution is a discretionary matter and as with all exercise of discretion, it must be done judiciously and judicially. By virtue of S. 18 of the Court of Appeal Act 2004, the Court of Appeal has jurisdiction to grant or refuse stay of execution of a judgment appealed against, and such grant may be made unconditionally or

upon conditions imposed with the judicial discretion of the Court. See also, Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.
The Court should be mindful when faced with an application for stay of execution to ascertain that such an application is not merely a ploy to stall the proceedings but that the applicant has germane reasons for bringing such an application. This Court per Onalaja J.C.A. has formulated a comprehensive list of principles to serve as beacons to guide the Courts, be it of first instance or an appellate Court in considering the issue of stay of execution. See P.H.M.B v. Utomi (1999) 13 NWLR (Pt. 636) P. 572 at 574-575,
The locus classicus in Nigeria is Vaswani Trading Co. Ltd v. Savalakh & Co (1972) All NLR 922; (1972) 12 SC 50. See also Ajomale v. Yaduat (2) 1991 5 NWLR (Pt.191) Pg.266; Akilu v. Oduntan & Ors (1991) 2 NWLR (Pt.171) Pg.1. The following principles have been established in the long line of cases.
”1. The Courts have the unimpeded discretion to grant or refuse a stay. In this and in all other instances of discretion, the Court is bound to exercise the discretion both judicially and

judiciously and not erratically
2. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent?s equal right to justice is a discretion that is not judicially exercised.
3. A winning plaintiff or party has a right to the fruits of his judgment and the Court will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is entertained.
4. An unsuccessful litigant applying for a stay of execution must show special or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay.
5. What will constitute these special or exceptional circumstances vary from case to case. However, such circumstances involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy

the subject matter of the proceedings or judgment or foist helplessness or render nugatory any order or orders of the Appellate Court
or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally produce 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.
6. The onus is on the party 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.
7. The Court will grant a stay where its refusal will deprive the appellant of the means of prosecuting the appeal.
8. The chances of the applicant on appeal are important. If the chances are virtually nill, a stay may be refused.
9. The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case.
10. Whether if the appeal

succeeds the appellant will not be able to reap the benefits of the judgment on appeal.
11. Whether the judgment is in money and costs and whether there is a remarkable probability of recovering these back from the respondent if the appeal succeeds.
12. Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting the appeal.
See also Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Martins v. Nicanner Foods Co. Ltd (1988) 2 NWLR (Pt. 74) 75
In this case, the prayer for stay of execution pending appeal is made to prevent the successful party in this case, the Respondent from reaping the fruits of his success at the trial. It is a serious interruption of the interest of the Respondent and for the Appellant to successfully deny even temporarily, the Respondent of the benefits of this success, the Appellant must have strong reasons- exceptional reasons. There is nothing to show that the Respondent intends to destroy or alienate the res of the substantive suit. In fact, Paragraphs 3 and 11 of the

Respondent’s counter affidavit show that the Respondent does not intend to alienate, destroy or restructure the res pending the determination of the appeal, even though the judgment was given in his favour. See Jadesimi v. Aleke (1998) 11 NWLR (Pt.572) 133; A.U Deduwa & Ors v. Emmanuel Amoma Okorodudu & Ors (1974) LPELR-936 (SC).

In considering the grant or refusal for a stay of execution, it is necessary to look critically at the grounds of appeal. The grounds of appeal contained in the Applicant’s Notice of Appeal as follows:
”1. The learned trial judge erred in law by failing to consider and pronounce on some important issues raised

by the plaintiff that vitiated the Deed of Assignment (Exh. 11)
2. The learned trial judge erred in law in pronouncing Exh. 11 valid when plaintiff pleaded and gave evidence to show that he was an illiterate; that he did not understand the nature of Exh. 11 that it was not explained to him, that he was misled into signing Exh. 11 by the defendant’s misrepresentation; and that the defendant never completed the purchase price of the said property.
3. The learned trial judge erred in law in misconstruing the plaintiff?s case when he held that there was no fraud on the face of the Deed of Assignment (Exh. 11)
4. The learned trial judge erred in law in failing to evaluate the evidence placed before him.”
The purpose is to see whether the grounds constitute special or exceptional circumstances where a stay may be granted. While the grounds of appeal raised in this case may not be frivolous and may be arguable, they are not substantial or strong enough to constitute special or exceptional circumstance. For example issue of jurisdiction may be considered as special

circumstances to warrant a stay of execution. See Alawiye v. Ogunsanya (2012) 12 SCNJ 943. It has not been raised here. See also Dillimerco Mfg Co. v. Velentine Varnish Co. (1996) 3 NWLR (Pt.437) 395; Dantumbu v. Adene (1986) 2 NWLR (Pt. 22) 347; Klifco Ltd v. Phillip Holzmann A.G. (1996) 3 NWLR (Pt. 436) 276; Fatoyinbo v. Osadeyi (2002) LPELR-1252 (SC); (2002) 11 NWLR (Pt.778) 384.
There is no doubt that the most important consideration is the need for the Court to balance the competing interests of parties based on equity. The orders granted by the trial Court sought to be stayed must be considered.

The trial Court made the following orders:
1. A declaration that under the Deed of Assignment and Registration at the Land Registry, Enugu as No. 70/70/116 dated 17/11/86 between the Plaintiff and the Defendant, ownership of the property has passed to the defendant effective from 17/11/86.
2. A declaration that all the rents collected from the premises situate at 3B Mount Close, Awkunanaw, Enugu by the Plaintiff or his agents belong to the Defendant.
3. An account of the proceeds of rent in

respect of the premises from November 1, 1990.
4. An Order of Court compelling the Plaintiff to pay to the Defendant all rents/monies collected by the Plaintiff from the tenants from November 1 1990, till the determination of this suit.
5. An Order of Court restraining the plaintiff by himself, his agents, servants or privies from further collection of any rents or arrears of rent from the property in dispute or laying claim to the said property.?

Clearly, while Orders 1 and 2 are declaratory and cannot be stayed, while Orders 3, 4, and 5 are executory and can be stayed. It is my view that having regard to the facts and circumstances of this case, equity and balance of convenience is squarely on the side of the Respondent who has secured a declaration of his right to the property in dispute. The competing interests of the parties is that on one hand the Applicant has enjoyed access and financial benefits since 1990 from a house now adjudged to belong to the Respondent, whereas the Respondent has been deprived. Moreover, the Applicant has not shown any exceptional circumstance that would tilt the

scale of equity in his favour to convince me to grant a stay of execution. The Appellant/Applicant drives the pace of the appeal.

The motion for stay of execution has no merit and is hereby dismissed. N50,000 costs to the Respondent against the Applicant.

TOM SHAIBU YAKUBU, J.C.A.: I read the draft of the ruling rendered by his Lordship, HELEN MORONKEJI OGUNWUMIJU, JCA.

I am in complete agreement with the reasoning and conclusion reached in the ruling. I have nothing more useful to add to it. Hence, the appeal is dismissed.
I, too award N50,000.00 costs to the Respondent against the Applicant.

?EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with reasoning, conclusions and orders therein.

Appearances

Dr. G. C. OguaghaFor Appellant

AND

Chief L. M. E. Ezeofor with him, Nkem Anyaogu (Mrs)For Respondent