REYNOLDS EZEDIARO v. GHADDAR MACHINERY & CO. LIMITED (2011)

REYNOLDS EZEDIARO v. GHADDAR MACHINERY & CO. LIMITED

(2011)LCN/5068(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of July, 2011

CA/L/346M/2011

 

Before Their Lordships

CLARA BATA OGUNBIYIJustice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria

JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria

Between

REYNOLDS EZEDIAROAppellant(s)

 

AND

GHADDAR MACHINERY & CO. LIMITEDRespondent(s)

ADZIRA GANA MSHELIA, J.C.A (Delivering the Lead Ruling): The Applicant herein brought a motion on notice pursuant to Order 4 Rule 6, Order 7 Rules 1, 2 & 3 and Order 18 Rule 11 of the Court of Appeal Rules 2011 and under the Inherent Jurisdiction of this Honourable Court. By the said motion filed on 15th April 2011, applicant prayed for the following orders: –
“1. AN ORDER extending time for the Appellant/Applicant to file this application in this Honourable Court after the Lower Court per Adefope J. of the High Court of Lagos State refused a similar application on 28th February 2011.
2. AN ORDER staying execution of the Judgment/Ruling of the High court of Lagos state per Honourable Justice Adefope Okojie delivered on 18th January 2011 in suit No.LD318/2010 pending the hearing and determination of the Appellant/Applicant’s appeal at the court of Appeal, Lagos.
3a. AN ORDER of interlocutory injunction restraining the Respondent from taking any step and/or action against the Appellant/Applicant’s business pending the hearing and – determination of the Appellant/Applicant’s appeal at the court of Appeal, Lagos;
IN THE ALTERNATIVE
3b. AN ORDER extending the time for the Appellant/Applicant to give up possession of the property in dispute till after the hearing and determination of the Appellant/Applicant’s appeal at the court of Appeal, Lagos;
4. AND ORDER granting accelerated hearing of the appeal and abridging the time within which parties are to file their briefs of argument;
AND for such further orders as this Honourable court may deem fit to make in the circumstances of this application.”
The grounds for this application are that: –
1. The Appellant/Applicant had earlier filed an application seeking a sole order of (staying of execution) dated 28th February 2011 within the time prescribed by the Rules of this Honourable Court. However, on 14th April 2011 when the application came up for hearing, counsel to the applicant had to withdraw same owing to the hint that the Rules of the Honourable Court prohibit the grant of such an order;
2. The applicant has gone through the Rules of this Honourable Court and did not see any such provision and is therefore seeking amongst other reliefs, an order of stay of execution;
3. Order 4 Rule 6 of the Rules of this Honourable Court provides that this appellate court has power to make any necessary order for the protection of property or person pending the determination of an appeal, even though no such order was sought at the lower court;
4. The lower court lacked the jurisdiction to deliver the judgment/ruling on 18th January 2011;
5. The Appellant/Applicant’s constitutional right to fair hearing has been grossly infringed as a result of the said judgment/ruling;
6. The Respondent has no interest whatsoever in the subject property in dispute;
7. All the above inter alia constitute special circumstances that warrant the grant of this application in order not to render the decision of the Honourable Court nugatory if in favour of the Applicant;
8. It is in the interest of justice and upholding the rule of law that this application be granted.
The motion is supported by a 13 paragraph affidavit and two Exhibits. A further affidavit was filed on 31/5/11 containing 6 paragraphs and one Exhibit “YB1” certified true copy of the ruling of the lower court.
In opposing the application the Respondent filed notice of preliminary objection on 25/5/11 and a counter affidavit filed also on 25/5/11 containing 15 paragraphs.
When the motion filed on 15/4/11 came up for hearing on 1/6/11 the argument in respect of the preliminary objection and the main motion were taken together. Dr. Braithwaite argued his notice of preliminary objection first. For clarity the Notice of Preliminary objection is reproduced hereunder as follows: –
“TAKE Notice that the Respondent herein named intends at the hearing of the Appellant/Applicant’s motion on notice dated 15th April, 2011 to rely upon the following preliminary objection notice whereof is hereby given to you VIZ:
That the Appellant/Applicant’s motion on notice dated 15th April, 2011 should not be heard and should be dismissed by this Honourable Court.
“AND TAKE NOTICE that the grounds of the said objection are as follows: –
1. That the Appellant/Applicant being a trespasser (see paragraph 9 (viii) and (ix) of the Appellant’s own Affidavit in support of motion dated 15th April, 2011, had filed a similar application before this Honourable Court which was struck out on 14th April, 2011 (see Exhibit “M1/1″ attached to the counter affidavit dated 25th May, 2011) and there ere no special or exceptional circumstances in this present application, explaining its filing out of time by 46 days. The application must be made within 15 days after the date of its refusal by the lower court.
2. That the Appellant/Applicant’s application dated 15th April 2011 is incompetent and an abuse of the process of court since he has failed and neglected to compile and transmit the Record of Appeal to this Honourable Court. ”
Respondents’ counsel commenced his argument by reference to ground 2 of the notice of objection. Counsel contends that the purported record of appeal is not competent as it was transmitted out of time. Reference was made to paragraph 7 of the affidavit in support which contained an averment that the notice of appeal dated 31st January 2011 was filed on 1st February 2011. Learned counsel submits that under the rules registrar has 60 days and appellant has 30 days from date of filing of notice of appeal to compile and transmit record. The Notice of Appeal Exhibitcc2 was filed on 1/2/11, while the record of appeal was filed on 26/5/11. It was argued that the purported record was filed out of time under Order 8 Rule 4 and 5 of the Rules of Court. Counsel also referred to another Notice of Appeal dated 9/3/11 but argued that the record of appeal in respect of same is not before the court. Learned counsel maintained that the record of appeal was filed out of time and there is no application brought to regularize same. Counsel contends that there is proof of service of the second notice of appeal. Counsel relied on the averment in paragraph 7 of the affidavit in support and Order 4 Rule 10 of the Court of Appeal Rules, 2011. Learned counsel urged the court to dismiss the application. As regards the first ground of objection learned counsel argued that applicant is a trespasser and is therefore not entitled to stay of execution. That applicant admitted this fact in paragraph 9 of the affidavit in support. The judgment of the court had adjudged the applicant a trespasser as such counsel urged the court to dismiss the application. See: Akibu v. Oduntan (1991) 2 NWLR (pt. 171) 1.
In response applicant’s counsel Akoni SAN contended that there is a competent record of appeal. Learned senior counsel submitted that I there is no provision in the Rules which says that appeal must be entered before application for stay could be made. Applicant’s counsel submitted that the rule says where an appeal is entered in the Court of Appeal the lower court ceases to have jurisdiction. Where an application has been brought before the lower court and same refused it can be brought to the Court of Appeal irrespective of whether appeal is entered or not. Reliance was placed on Order 7 Rule 3 of the Rules of Court which allows such renewed application to be brought within 15 days of refusal. With regard to the validity of the record senior counsel submitted that the notice of appeal that is relevant is that one filed on 9/3/11. See pages 148 – 155 of the record. In so far as there is valid record of appeal based on the notice of appeal of 9/3/11 this application is competent he argued. That the certificate of service does not apply by virtue of Order 8 Rule 7 to the record compiled by a party. Learned counsel submitted that the lower court made no such finding that applicant is a trespasser. Reliance was placed on Exhibit CC1. See: A.P. Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 413 – 414. It was argued that in a tenancy situation, where a tenant holds over he becomes a statutory tenant and not a trespasser. See page 43 of the record of appeal.
While arguing the main application the learned senior counsel withdrew reliefs 2 and 3a. Senior counsel proceeded to argue reliefs 1, 3(b) and 4. The grounds for the application are stated on the face of the motion paper. The motion is supported by a 13 paragraph affidavit and two Exhibits attached. A further affidavit was also filed on 31/5/11.
Reliance was placed on the record of appeal filed on 26/5/11. It was submitted that the facts supporting the relief are stated in paragraphs 9(vi); (vii); (viii) (ix) and (x). That the tenant has a right to stay in the premises since he had 10 years renewed lease. That Order 4 Rule 6 of the Rules of Court empowers the court to protect property pending the determination of the Appeal. He relied on Order 18 Rule 11 of the Court of Appeal Rules. Applicant’s counsel contended that more injustice will occur if the property is not retained. That respondent did not counter the facts averred by applicant in their counter affidavit.
In opposing the application Dr. Braithwaite submitted that the application has no merit. Respondents filed a counter-affidavit on 25/5/11. Counsel referred to paragraphs 6 – 15 to show the character of the applicant in this application. He also referred to Exhibit ‘M11’.
Counsel posited that when issue of record of appeal is considered, the application is worthy of dismissal. See: Denton West v. Chuks Nwoba (2008) 6 NWLR (pt. 1083) 418 at 439. Counsel urged the court to dismiss the application.
While replying on point of law Akoni SAN submitted that based on the notice of appeal of 9/3/11 which they are relying upon, the record is valid having been filed on 26/5/11. He stated that the 90 days have not lapsed.
I would first of all resolve the points raised in the respondents notice of preliminary objection before determining the application on merit. The first ground of objection raised by the Respondents is that there is no valid record of appeal before this court as same was filed out of time. The applicant averred in paragraph 7 of the affidavit in support that the Notice of Appeal was filed 1st February, 2011. For clarity paragraph 7 read thus: –
“7. The Applicant, being dissatisfied with the said judgment/ruling of the lower court, has filed on 1st February 2011 a Notice of Appeal dated 31st January 2011 in which it has adduced substantial and arguable grounds of appeal for determination by this Honourable Court. Attached herewith and marked “Exhibit CC2″ is a copy of the said Notice of Appeal. ”
By virtue of the provisions of Order 8 Rule (1) and (4) of the Court of Appeal Rules, 2011 the registrar has 60 days to compile the record of appeal, from the date of filing of the Notice of Appeal. Thereafter appellant has 30 days to compile and transmit the record where registrar failed to compile the record within the prescribed period. For the purpose of emphasis Order 8 Rule 1 and 4 are reproduced hereunder:-
“8(1)The Registrar of the court shall within sixty days after the filing of notice of appeal compile and transmit the Record of Appeal to the court.
2. xxxxxxx
3. xxxxxxxx
4. Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and Exhibits necessary to the court within 30 days after the registrar’s failure or neglect. ”
The record of appeal before us was filed on 26/5/11. I agree with Respondents’ counsel that the record of appeal was filed out of time.
There is no application before this court to regularize same. Applicant’s counsel in his own argument before us relied on the notice of appeal filed on 9/3/11 and contended that the record of appeal before this court was filed within time. For the purpose of this application this court will rely on the facts deposed to in the affidavit filed in support of same. Depositions in affidavit are evidence. No reference was made to the Notice of Appeal filed on 9/3/11 either in the affidavit in support, deposed to by Chidiebere Eze – Ajoku Esq. or the further affidavit filed on 3/5/11. The relevant notice of appeal is the one filed on 1st February 2011. Since the record of appeal was filed out of time, it means no appeal has been entered before this court.
The second ground of objection is that applicant being a trespasser is not entitled to grant of stay of execution. I have perused paragraph 9 of the applicant’s affidavit in support and the judgment referred to by respondents’ counsel. From the facts and circumstances of this case I seem to agree with applicant’s counsel that applicant is not a trespasser. In a tenancy situation where a tenant holds over he becomes a statutory tenant and not a trespasser. See: A.P. Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 413 – 414. The second ground cannot be sustained. I wish to note that applicant had also withdrawn relief 2 i.e. the application for stay of execution.
Respondents’ counsel had urged the court to sustain the objection and dismiss the entire application. In the course of his submission applicant’s counsel withdrew reliefs 2 and 3a and same were struck out. The reliefs left to be considered are reliefs 1, 3 (b) and 4. The only relief that may be considered pursuant to Order 4 Rule 6 of the Court of Appeal Rule 2011 is relief 1 and 3 (b). As regards relief 4, it is premature to consider it since no appeal has been entered before this court. Prayer 4 is caught up by the preliminary objection filed by the Respondents.
The question now is can the entire motion be dismissed in view of relief 3 (b) in which applicant is asking the court to exercise its powers under Order 4 Rule 6 of the Court of Appeal Rules, 2011, and grant same? It seems to me that reliefs sought under Order 4 Rule 6 can be entertained by this court once there is a valid subsisting notice of appeal. In Globe Motors Holdings Ltd. v. Honda Motors Ltd. (1998) NWLR (pt 550) 373 at 380 -481 Ayoola JCA (as be then was) had this to say: –
“On the plain reading of Order 1 Rule 20 (8) it is difficult to read into it a condition that an appeal must have been entered before its provisions take effect. It suffices in my view, that an appeal has been lodged. The intendment of Order 1 Rule 20 (8) is to ensure speedy access to this court when an injunction is sought. ”
See also Military Administrator Delta State v. Olu of Warri (1998) 8 NWLR (Pt. 562) 480 at 489. I wish to note that Order 1 Rule 20 (8) is in pari materia with Order 4 Rule 6 of the Court of Appeal Rules, 2011.
Order 4 Rule 6 deals with specific reliefs. It is therefore my considered view that the entire motion -cannot be dismissed as urged by respondents’ counsel. Relief 3 (b) has sustained the motion. However relief 4 being premature is hereby struck out. I hold that the first ground of the objection is not sustainable; it is overruled and struck out. I would however, uphold ground two of the notice of preliminary objection. The notice of preliminary objection partly succeeds.
I will now consider relief 3 (b) on merit. What the applicant is asking for under relief 3 (b) is an order extending time within which to give up possession of the property in dispute pending the determination of the appeal by this court. Applicant relied on Order 4 Rule 6 of the Court of Appeal Rules to show that this court has the power to protect property in applications of this nature. For clarity Order 4 Rule 6 provides: –
“The court shall have power to make orders by way of injunctions or the appointment of a Receiver or Manager, and such other necessary  orders for the protection of property or person, pending the determination of an appeal to it even though no application for such an order was made in the court below. ”
The facts supporting the relief are contained in paragraphs 9 (vi); (vii); (viii); (ix) and (x) of the affidavit in support. The said paragraphs are reproduced hereunder as follows: –
“9.vi The Applicant is a businessman with his business premises No. 10A Akin Adesola Street, Victoria Island, upon which he presently operates a Boutique, Bar, Restaurant and Night Club and has expended huge sums of money in the modeling, redesigning and painting of the said premises to the knowledge and admiration of Prince Agboola Aderemi – his landlord.
vii. Whilst the Applicant is pursuing its challenge to the Respondent, it is impossible for the Applicant to relocate from the said property within the 21 days period ordered by the lower court without losing his clientele, business reputation and means of livelihood, as the businesses for which the property is used are such that require consistency and reliability. In the likely event that his Appeal heard and determined in his favour, would have already lost his business status and good will in the line of business in which he is involved, if this application is not granted.
viii. In obedience to the order of the lower court, the Applicant has made serious efforts at getting an alternative property for his business but has been unsuccessful so far. It is therefore imperative that this application be filed.
ix. A similar application for stay of execution had been filed at the lower court dated 4th February 2011 and was subsequently refused by the said court on 28th February 2011.
Hence, this application being made to this Honourable Court.
x. The Applicant undertakes to prosecute this appeal diligently and verily believes this is an appropriate circumstance that warrants an order abridging the time within which parties are to file their briefs of argument.”
On the one hand, the applicant’s counsel had contended that more injustice be caused if the property is not retained. Respondent on the other hand urged the court to take note of the applicant’s character. The facts averred in paragraphs 6-15 of the counter-affidavit was relied upon by the Respondent. I would reproduce paragraphs 6 – 14 for the purpose of emphasis. Paragraphs 4 – 16 reads thus: –
“6. In response to paragraphs 10 and 12 of the Appellant/Applicant’s Affidavit in support, I affirm that it would not only be prejudicial to the Respondent, who had been unduly kept out of its premises for which it paid a whopping sum if N130 Million (One Hundred and Thirty Million Naira) it would also inflict untold hardship on the Respondent, if this unmeritorious Application were granted.
7. That furthermore, the application on the face of it, lacking inequity, is clearly, a ploy by the Appellant/Applicant to deprive the Respondent the fruit of his successful litigation.
8. That the Applicant’s conduct in this matter of this suit between the parties, is reprehensible.
9. That the Appellant/Applicant is not a person of integrity as he is in the habit of deceiving and misleading the courts in cases involving him on the subject matter, and there have been findings of the Lagos High Court, to this effect. A copy of the Ruling of Hon. Justice D.T. Okuwobi in Suit No. LD/851/08 and dated 8th January 2010 is hereby attached and marked Exhibit “M12”.
10. That I refer to page 11 of Exhibit “M12”, which reads thus: –
“I find as a fact that the applicant who shares two names in common with the party sued as the 3rd Defendant is the person the claimant intends to sue.
There is a case of a misnomer here and the said Defendant cannot be misled that he is the person sued.  Upon his admission that he occupies the premises as tenant thereof, the matter must be laid to rest.”
See also page 17 of Exhibit “M12” which reads thus: –
“The Applicant who claims not to be privy to the transaction of the sale of the property he occupies has also held brief for the 1st and 2nd Defendants in the position taken that the transaction of sale is void as the Governors consent was not sought within the provision of Section 22 of the Land Use Act. I must state here that the Applicant who is not the vendor is a busy body to canvass this defect. ”
12. That in the interpleader proceedings in suit No. LD/851/08 Ghaddar Machinery & Co. and Reynolds Ezediaro and Chief  S.O Ezedioro, the court found some element of conspiracy between the judgment Debtor (Appellant/Applicant) and the claimant in the interpleader proceedings. A copy of the judgment of Okawobi J. dated 2nd July 2010 is hereby attached and marked Exhibit “M13”.
13. That I refer to page 6 of Exhibit “M13” which reads thus: –
“I am not convinced by Exhibits A, B, C, D of the claimant of S.O. Ezediaro title to the Range Rover when the judgment debtor admitted ownership. I definitely prefer the version of victor Ojo whose evidence was not controverted to the effect that the judgment debtor owns the vehicle and freely offered it for execution to prevent carting away of other goods in his premises. The onus is on the judgment debtor to explain away how and when the vehicle became that of  S.O. Ezediaro contrary to his earlier evidence in court. The claim of the claimant now appears to suggest some collusion between the judgment debtor and this claimant. If indeed he exists.”
14. That the Appellant/Applicant’s application is brought in bad faith with the sole purpose of depriving the Respondent the occupation of his premises the subject matter of this suit. ”
Applicant denied the averments in paragraphs 8 14 of the counter affidavit in the further affidavit filed on 31/5/11.
With reference to the facts averred in paragraph 9(i) of the affidavit in support the applicant entered into a lease agreement in respect of a property at No. 10A, Akin Adesola Street, Victoria Island, Lagos with his landlord Prince Agboola Aderemi on 3rd August 2005 which lease was to expire on 2nd August 2010 with an option for renewal for another 5 years. Applicant exhibited the letter he wrote to the landlord on 7/01/10 expressing his intention to renew the lease of the properly. The letter is attached to the affidavit in support as Exhibit CC3. A careful reading of the judgment of the High Court Lagos State delivered on 18/01/10, (Exhibit CC1) showed that the option to renew was not exercised by the former landlord and the tenancy was not renewed. It is also clear that the property under consideration even though it was purchased by the Respondent since 2008, they have been unable to secure possession of the premises. The learned trial judge also found as a fact that applicant is on the premises without any agreement or consent of either the respondent or the former landlord, his tenancy having expired since August 2010. Judgment was entered in favour of the Respondent on 28/2/11 and applicant was ordered to give up possession within 21 days. Applicant is yet to vacate the premises.
Applicant has now filed this application before this court seeking extension for time to remain in possession of the properly pending the hearing and determination of the Appellant/Applicant’s appeal before this court. The relief sought by the applicant if granted has the effect of staying the execution of the judgment of the lower court delivered on 18/1/2011.
The application herein is equitable in nature and the grant of the relief sought is discretionary. The discretion however should not be exercised as a matter of course but judicially and judiciously. See: Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt. 269) 462.
I would also state that such discretion can only be exercised in favour of an applicant who has made out in his affidavit evidence before the court some special circumstances for the grant thereof. There is no hard and fast rule about what a court may consider special circumstances. Each case is treated according to its peculiar facts and circumstances.
However, the apex court had laid down guiding principles in myriad of cases. In Ajomole v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 257 at 289 Nnaemeka – Agu JSC of (blessed memory) stated thus: –
“It has long been recognised that the broad basis for the exercise of the power to order a stay of execution  is equitable – an equitable principle  which strikes a mean between the entitlement of a successful litigant to the fruits of a judgment in his favour, on the one hand, and the need to see not only that the intending appellant’s constitutional right to appeal is not impeded in any way but also, more importantly that when he exercises that right successfully, the result is not rendered nugatory on the other hand.”
See also celebrated case of Vaswani trading Co. v. Savalakh & Co,  (1972) 1 All NLR (pt.2) 483. In another related case of Olunloyo v. Adeniran (2001) 14 NWLR (Pt. 734) 699, the Supreme Court, stated the current position of the law at page 7 lines 20 – 40 as follows: –
“Now it is settled that a stay of execution will only be granted if and only if the court is satisfied that there are special or exceptional circumstances to warrant doing so, because the principle of law is that a judgment of a court of law is presumed to be correct and rightly made until the contrary proved or established…
A discretion to grant or refuse a stay must therefore take into account the competing rights of the parties. See: Okafor & Ors. v. Nnaife (supra). And where there is a pending appeal as is the situation herein, the special circumstances which have received judicial approval are when execution would:
a. destroy the subject matter of the proceedings;
b. foist upon the court a situation of complete helplessness;
c. render nugatory any order or order of the appeal court;
d. paralyse in one way or the other the exercise by the litigant of his constitutional right of appeal; or
e. provide a situation in which even if the appellant succeeds in his appeal, there could be no return to the status quo.”
The crucial question to be answered in this case is, whether from the supporting and further affidavit and the notice and grounds of appeal annexed to the applicant’s motion paper, he has furnished this court with sufficient particulars of special and exceptional circumstances to warrant the exercise of this court’s discretion in his favour? A careful perusal of the affidavit evidence showed that the circumstances disclosed in the application are in the main, the inconvenience of relocation, in view of the time frame given by the court below and the nature of the business operated by the Applicant. Applicant is therefore asking that time be extended to him to remain in possession until the determination of the pending appeal. I have earlier stated in this ruling that the judgment appealed against disclosed that respondent purchased the property in dispute since February, 2008. It is in evidence and the facts also reveal that the option to renew the rent was not granted by the landlord. It is also not in dispute that the applicant’s rent expired since August 2010.
Applicant has since remained in occupation of the premises.
It is necessary to consider the competing interests of the parties.
Whether the balance of convenience is in favour of the applicant or the respondents recourse must be had to the materials placed before the court. In paragraphs 9(vi); 9(viii) reproduced (supra) applicant had stated the nature of the inconvenience he would suffer if he is not allowed to retain the properly. The nature of the business includes a Boutique, Bar, Restaurant and Night Club. Applicant’s complaint is that he cannot find an alternative property within 21 days hence his application for extension of time. I agree with applicant’s counsel that respondent did not counter the averments in paragraphs 9vi, 9vii and  9viii of the affidavit in support. The said paragraphs are deemed admitted. The law is trite that facts in an affidavit not challenged, not contradicted and not controverted by a party are deemed to be admitted by him unless such facts on the face of them will lead to absurdity if accepted as being the truth of what they try to establish. In Badejo v. Federal Ministry v. Education (1996) 8 NWLR (Pt. 464) 15 at 42 paragraphs E – F held as follows: –
“It is an elementary principle of law that facts contained in an affidavit from part of documentary evidence before the court. Where an affidavit is filed deposing to certain facts, and the other party does not file a counter – affidavit or a reply to the counter-affidavit, the facts deposed to in the affidavit would be deemed, unchallenged and undisputed. In the instant case those paragraphs which disclosed that the interview for admission into Federal Government College had already taken place on 8th October, 1988 were not denied. They are therefore deemed admitted.”
See also Alagbe v. Abimbola (1978) 2 SC 39; Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587 at 657 and Olorunfemi v. Asho (2000) 12 NWLR (Pt. 643) 143. In the instant case, as stated Respondents filed counter affidavit but did not specifically deny the fact that 21 days granted the applicant by the lower court to relocate was inadequate having regard to the nature of the business he is operating. For the respondents they maintained that granting the application would inflict untold hardship on them if the unmeritorious application is granted. I have also examined the notice and grounds of appeal. I am satisfied that the grounds of appeal raise substantial issues and therefore arguable. In other words the grounds of appeal are not frivolous. Applicant’s complaint is that the landlord did not give him adequate notice as a tenant before selling the property. Applicant averred that he was not aware the property in dispute was sold to a third party during the subsistence of his 5 years tenancy period. All that the applicant is asking for is that he be given more time so that he could find an alternative property for his business. I seem to agree with applicant’s counsel that considering the nature of the business the 21 days period ordered by the lower court is very much inadequate. There is no doubt that respondents are entitled to enjoy the fruits of their victory.
However, Applicant has shown special circumstance to justify the exercise of court’s discretion in his favour. Considering the facts and circumstances of this case, I am of the humble view that applicant has shown that the balance of convenience is in his favour. I had observed that Applicant’s rent expired since August 2010, as such it would be unfair to extend his stay until the determination of the appeal. One cannot say within certainty as to when the appeal will be heard and determined by this court.
In sum I hold that relief 3(b) succeeds. I hereby make the following orders:
1. Appellant/Applicant is granted 6 (six) months from today to retain possession of the property.
2. At the expiry of the 6 (six) months period applicant shall give up possession of the premises to the Respondents, whether the appeal is concluded or not.
3. I shall further order that this appeal be given accelerated hearing.
4. I award N20,000.00 costs in favour of the Respondent.

CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the lead ruling just delivered by my brother Mshelia JCA and I agree with the reasonings and conclusions arrived thereat.
just for purpose of emphasis, I wish to add that plethora of authorities are very clear on the principle that a successful party is not to be deprived of the fruits of his labour. The implication therefore is that courts are to be wary in exercising their discretion on questions of stay of execution which should be granted only upon special or exceptional circumstances to be shown by the applicant. The granting of such a relief therefore is not a matter of course. It must be based on tangible facts placed before the court and upon which the exercise of discretion ought to be judicial and judicious. The convenience of the parties would also be taken into account and be of a serious consideration.
A very significant salient factor grounding the determination as to whether to grant this application or not is the nature of the business operated by the applicant and which the period allowed by the lower court would not in my view serve as adequate. There is also no counter affidavit deposed to by the respondent that the applicant had within this period secured an alternative place of business. No evidence was also placed before us that the applicant had either constructive or actual knowledge of the sale of the property during the pendenry of his tenancy. From all deductions the respondent has not also shown what he would suffer if the extension is granted for purpose of alleviating the inconvenience to be suffered by the applicant.
In my considered view and having regard to the entire circumstance of the case, the refusal of the application would cause greater hardship to the applicant as against the party who had purchased the property in question.
In an application of this nature, reason as well as the circumstance of each case ought to be taken into account. To every general rule there is always an exception. The entire circumstance from the available facts by both parties having been weighed on an imaginary scale will certainly tilt the pendulum thereof in favour of applicant. I agree with the well thought out reasonings arrived thereat by my brother Mshelia JCA. The application on the totality has merit wherein special circumstance weighs in favour of the applicant. I therefore also grant the application in the same terms as the lead ruling of my brother herein inclusive of order made as to costs.

JOHN INYANG OKORO, J.C.A.: I was obliged a copy of the Ruling just delivered by my learned brother, Mshelia, JCA and I agree that the alternative prayer 3(b) be granted in terms of the lead Ruling. Accordingly, the Applicant is granted 6 months extension with effect from today, within which to give up possession of the property at No. 10A Akin Adesola Street, Victoria Island, Lagos, to the respondent. I abide by all the consequential orders made in the lead Ruling, that relating to costs, inclusive.

 

Appearances

O. Akoni (SAN) with O. Awunuga Esq., F. Arigbe Esq. and Y. BelloFor Appellant

 

AND

Dr. Tunji Braithwaite with O. Braithwaite, Dapo Omolodun Esq. and I.S. Usman Esq.For Respondent

 

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