PARTICIPANT PROPERTIES LIMITED v. MR. ADEMOLA FASHOLA & ORS
(2019)LCN/13506(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/L/508A/2017(R)
RATIO
STAY OF EXECUTION: WHETHER A COURT CAN VARY THE CONDITIONS ON AN ORDER FOR STAY OF EXECUTION
Generally, a Court can vary the conditions on an order for stay of execution. It is within the discretionary power of a Court or judge to make an order of variation but in doing that it has to be judicially and judiciously exercised. See United Cement Company of Nigeria vs. Dangote Industries Ltd & Anor (2006) LPELR 7742 (CA); Nwobodo vs. Akkah (2016) LPELR- 40308.PER TOBI EBIOWEI , J.C.A.
HE WHO COMES TO EQUITY MUST COME TO EQUITY MUST COME WITH CLEAN HANDS: WHEN A PARTY WANTS THE COURT TO VARY ITS STAY OF EXECUTION CONDITIONS
A Court will not smile favourably to such a person. Certainly this Court will not. The Applicant wants an equitable relief to vary the condition of the stay of execution, it is the requirement of the law that a person who wants a Court to exercise equitable remedy in his favour must come with clean hands. He who wants equity will do equity. In Nimasa & Anor vs. Hensmor Nig. Ltd (2012) LPELR-7913 (CA), Pemu, JCA held at page 9 as follows:
The Applicants, having disobeyed the order of the lower Court, and having failed to seek an order to vary the said order, or to seek an order declaring it null and void, had no right to approach this Court seeking the same order, which had been granted them at the lower Court. He who seeks equity must do equity. He who comes to equity must come within clean hands. Equity leans against double portions.PER TOBI EBIOWEI , J.C.A.
YOU CANNOT PUT SOMETHING ON NOTHING
The law has long been established that no one can put something on nothing and expect it to stand. See U.A.C. Ltd vs. Macfoy (1962) AC 152: Aluge-Obia vs. Okonta (2010) EPR Vol. 6 page 485; J.A. Aderibigbe & Anor vs. Tiamiyu Abidoye NSCQR Vol. 38 2009 page 86. PER TOBI EBIOWEI , J.C.A.
WHETHER A COURT NEEDS TO LOOK AT A DOCUMENT IN ITS FILE WHILE WRITING ITS JUDGEMENT WHETHER OR NOT THE DOCUMENT WAS NOT TENDERED
It is not disputed that a Court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. Agbaisi vs. Ebikorefe (1997) 4 NWLR (Pt. 502) pg. 630 Agbahomovo vs. Eduyegbe (1999) 3 NWLR (Pt. 594) pg. 170. Thi
s is an exercise of judicial discretion which must be exercised not only judicially but also judiciously.PER TOBI EBIOWEI , J.C.A.
Justice
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
Justice
PARTICIPANT PROPERTIES LIMITEDAppellant(s)
AND
MR. ADEMOLA FASHOLA
2. MR. BABATUNDE ADEBUTU
3. MRS. TINUOLA OLUFON
4. MRS. BOLANLE ENOBAKHARE
5. MR. ADRIAN AGYEMAN-BEMPAH
6. MRS. KEHINDE ALUSI
(Representing the Onayemi family owners of Michael VI Towers-15, Goriola Street, Victoria Island, Lagos)Respondent(s)
TOBI EBIOWEI , J.C.A. (Delivering the Lead Ruling): Before the lower Court, the parties filed one suit each against each other. The suit of the Appellant at the lower Court is Suit No. M/1031/2013 while that of the Respondents is Suit No LD/3707/2014. Both suits concern the property known as Michael VI Towers-15 Goriola Street, Victoria Island, Lagos. The Appellant suit which was first in time challenged the arbitration award made against it by the sole arbitrator appointed by the Chief Judge of Lagos State in the person of Arc. Justus O. Okah-Avea. The Respondents parallel suit is for an order to recognize and enforce the arbitration award. The Appellant raised a preliminary objection challenging the Respondents suit on the ground that it is an abuse of Court process. The preliminary objection of the Appellant to the Respondents suit No LD/3707/2014 was dismissed by the lower Court on 14/10/14. This led to appeal No CA/L/1223/2014 which is an interlocutory appeal. Judgment was delivered on Suit No LD/3707/2014, which is the Respondents suit on 18/3/16. The lower Court also delivered judgment on the same day on the
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suit of the Applicant that is Suit No M/1031/2013. In the judgment the lower Court dismissed the Applicants case (Suit NO. M/1031/2013) and upheld the Respondents case (Suit No LD/3707/2014). In summary, the case challenging the arbitration award failed while the case seeking for the enforcement of the award succeeded. This was while the appeal on CA/L/1223/2014 was pending. The Applicant then filed an appeal against the final judgment. That appeal bears the Appeal No CA/L/508A/17.
The Applicant instituted an application for stay of execution before this Court. This Court considered the application and made an order for conditional stay. This was made on 27/4/17. In the said order, this Court asked the Applicant to pay the judgment sum into an interesting yielding account in the name of the Chief Registrar of this Court. This Court further ordered that the money should be paid into that account within six months otherwise the order will be abated. The Appellant/Applicant on 25/9/18 filed this application for variation of the order for conditional stay. This is the application before this Court for consideration. The Appellant/Applicant in
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the motion before this Court is seeking the following prayer:
An order of this Honourable Court reinstating the Order of Stay of Execution made by this Honourable Court on the 27th of April 2017, in favour of the Appellant/Applicant by varying the conditions of Stay of Execution stipulated in the Order of the Honourable Court, by directing the Appellant/Applicant to pay the sum of N67,671,740.26 (Sixty Seven Million, Six Hundred and Seventy One Thousand, Seven Hundred and Forty Naira, Twenty Six Kobo) into an interest yielding account in the name of the Chief Registrar of this Honourable Court pending the hearing and final determination of the appeal filed by the Appellant/Applicant.
The grounds for the prayers as stated in the motion are as follows:
i. The Order of Conditional Stay of Execution made by this honourable Court on the 27th April, 2017 is beyond the capacity of the Appellant, as the Appellant does not have the said amount, nor does it have the capacity to raise the Judgment sum given the peculiar circumstances of the Appellant and the case before this honourable Court.
ii. That the Appellant/Applicant did
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not realize or earn any profits from its lease and management of the property known and described as Michael VI Towers (hereinafter referred to as MVI Towers) situate at No. 15, Goriola Street, Victoria Island, Lagos which was the crux of the dispute between the parties.
iii. That the Appellant/Applicant does not have any means with which it could satisfy the Order of this Honourable Court, given the fact that the Appellant/Applicant had expended hugely on the Respondents property, the MVI Towers, which led to the Appellant incurring huge indebtedness on account of the massive renovations and upgrading carried out by the Appellant on the Respondents property, at the sole expense of the Appellant.
iv. That the Appellant, as a sign of good faith, is willing and desirous to pay the sum of N67,671,740.26 (Sixty Seven Million, Six Hundred and Seventy One Thousand, Seven Hundred and Forty Naira, Twenty Six Kobo), into an interest yielding account in the name of the Chief Registrar of this Honourable Court, in lieu of the Judgment Sum, which is N200,000,000.00 pending the hearing and final determination of the appeal filed by the
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Appellant/Applicant.
v. The Appellant/Applicant has disclosed special and exceptional circumstances for the grant of the order sought in the instant application.
vi. This Honourable Court has the power to vary its Order in deserving cases, such as the instant case.
The Applicant in addition to the 42 paragraph affidavit in support of the motion of 25/9/18 filed a further affidavit of 23 paragraphs after been served with the Respondents counter affidavit of 9 paragraphs. The Applicant also filed a further affidavit for the records of the Court. This was filed on 6/5/19, a day before the application for variation was taken. In reacting to the motion, the Respondents filed a counter affidavit to the motion. In the circumstance, this Court ordered counsel to file written addresses. The Learned Counsel for the Appellant/Applicant is Y. A. kadiri Esq., who adopted the written address on behalf of the Appellant/Applicant on 7/5/19. The Respondents counsel is Chief Olalekan Yusuf (SAN) but the written address was adopted on the same day by Adeyemi Ogunhewoye Esq., from the office of Chief Olalekan Yusuf (SAN). The Counsel to the
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Appellant/Applicant raised a single issue for determination which is; whether the Applicant is entitled to be the granted of the relief sought. In answering the question in the positive, counsel submitted that this Court can vary the terms of the conditional stay of execution where such condition is proven to be herculean, onerous, unreasonable and impracticable. It is further submission that in the affidavit in support and further affidavit, the Applicant has satisfied the condition. He referred to LSDPC vs. Citymark (west Africa) Ltd (1998)LPELR-1743; Lingo (Nig.) Ltd & Anor vs. Nwodo (2003) LPELR 10785 (CA); Nigerian Bank for Commerce and industry vs. Dauphin Nigeria Limited (2010) LPELR-4605 (CA) and paragraphs 9.10,29,30,31,32,33,34 of the affidavit in support and paragraphs 7,16b,16c,16d,17 of the further affidavit. It is his further submission that the variation should be granted since the Applicant has shown that it will be subjected to financial hardship capable of threatening its corporate existence to a state of complete annihilation. Granting this application will meet the tenet of substantial Justice, Counsel Submitted. He referred to CBN vs.Beckiti Construction Ltd
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(2003) LPELR 7214(CA) to finally submit that this Court should grant the application.
The Learned counsel to the Respondent agreed with the position of the law as stated by counsel to the Applicant but was emphatic in submitting that the Applicant has not shown that the condition is onerous or unfavourable to the Applicant or that refusal to grant the application will affect the corporate existence of the Applicant. He referred to Igwe vs. Amuchenwa (2005) 10 NWLR (pt 933) 420 @ 426; Kopek Construction vs. Ekisola (1998) 10 NWLR (pt 568) 120 @ 128. It is counsel further submission that this application should not be granted as the Applicant has not come with clean hands. He cited Ladipo vs. Aminike Investment Co. Ltd (1998) 4 NWLR (Pt. 546). The burden on the Applicant to vary the condition is stronger than the demand for condition to stay execution. Counsel referred to Sentinel Assurance CO Ltd vs. Societe Generale Bank (Nig.) Ltd (1992) 2 NWLR (Pt. 224) 495. Counsel finally submitted that the motion should be dismissed. The Applicant filed a reply address but most of it was not necessary as it appears like re-opening the
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address. He urged Court to look at all the documents in the case file before the Court.
The real issue is whether in the light of the facts before the Court, this Court can vary the terms or the condition of the stay of execution earlier granted by it. Generally, a Court can vary the conditions on an order for stay of execution. It is within the discretionary power of a Court or judge to make an order of variation but in doing that it has to be judicially and judiciously exercised. See United Cement Company of Nigeria vs. Dangote Industries Ltd & Anor (2006) LPELR 7742 (CA); Nwobodo vs. Akkah (2016) LPELR- 40308.
This Court in its ruling of 27/4/17 on the interlocutory appeal for stay of execution had directed the Applicant to pay the judgment sum into an interest yielding account in the name of the chief Registrar of this Court within 60 days of the order. Instead of obeying that order, the Applicant filed this motion on 25/9/18. This is about a year and 6 months from the day the order was made. It is of importance to note that this Court on 27/4/17 when making the order for conditional stay stated that the order will abate if the Applicant
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fails to pay the judgment sum into the interest yielding account within six months of the order. As to what the judgment sum is, it is not very relevant here but what is important from the order, the Applicant wants varied is that the order must be obeyed within six months from 27/4/17 meaning therefore that if it is not done on or before 27/10/17, the order for stay will abate. The implication of this is that, as at when the Applicant filed this motion for variation on 25/9/18 the order for conditional stay has abated. The order has abated 11 months from when it was to have been complied with by the Applicant. The Applicant was in disobedience to the order of a Court over 11 months.
The reasonable deduction therefore is that as at when the motion for variation was filed, the Applicant was in disobedience to this Court. Can a Court that the Applicant has shown disrespect to, grant the reques
