ZENITH BANK v. DAILY TIMES & ANOR
(2021)LCN/15851(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 10, 2021
CA/A/CV/1131/2020(R)
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
ZENITH BANK PLC APPELANT(S)
And
1. THE DAILY TIMES LTD 2. CENTRAL BANK OF NIGERIA RESPONDENT(S)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgement): By its Motion on Notice dated and filed on the 18th day of December, 2020 the Appellant/Applicant prays for the following:-
“1. AN ORDER of this Honourable Court staying the execution of the Judgment delivered in Suit No. FHC/ABJ/CS/45/2019 between THE DAILY TIMES OF NIGERIA LTD V ZENITH BANK PLC & ANOR on the 9th day of December, 2020 pending the hearing and determination of the Applicant’s appeal.
2. AND FOR SUCH FURTHER ORDER or Orders as this Honourable Court may deem fit to make in the circumstances.”
The application is predicated on 12 grounds. The Motion is also supported by 25 paragraph Affidavit with three Exhibits attached namely the lower Court’s Judgment, A copy of Notice of Appeal filed and an earlier Motion filed for stay of execution at the lower Court.
On 22nd day of December, 2020 the 1st Respondent filed Counter Affidavit in opposition to the Appellant’s Motion for Stay of Execution filed as aforesaid on 18/12/2020.
On 8/2/2020 the Appellants/Applicant’s Motion to amend its Notice of Appeal filed on 10/12/2020 and to deem the Amended Notice of Appeal filed on 25/1/2021 as properly filed and served was granted. The learned Senior Counsel to the Appellant SOLOMON E. UMOH, SAN then sought for an adjournment on 8/2/2021 to file further Affidavit in Support of the Motion for Stay of Execution. The application for an adjournment was granted and the Motion for Stay of Execution was adjourned till today for hearing.
Moving the Motion, the learned Silk for the Appellant/Applicant drew attention of the Court to the reliefs sought on the face of the Motion Papers, the Affidavit in Support, Further Affidavit in Support of the Appellant/Applicant’s Motion for stay of Execution and Second FURTHER Affidavit in Support of Appellant’s/Applicant’s Motion for Stay of Execution filed on 9/2/2021 and 10/2/2021 respectively.
He relied on the Affidavits aforesaid and admonished the Court to note that the application was not brought as a ploy to delay the hearing of the appeal and that the Appellant/Applicant has exhibited diligence in the prosecution of the appeal. That the record was transmitted on time and that the Appellant has filed its Brief of Argument. He therefore submitted that this is a case in which a Judgment Debtor will be allowed to retain the Judgment Debt, having demonstrated that it is ready for the expeditious hearing or determination of the appeal. He relied on the cases of OWENA BANK a case decided by this Court and SCC & OR V OURLINE LTD (SUPRA) among some of the cases cited.
He submitted that this application should abide the judgment in this appeal as according to him the two appeals emanating from the judgment of the lower Court are now ripe for hearing.
He also drew attention of the Court to paragraph 15 of the 1st Respondent’s Counter Affidavit wherein it was deposed that the judgment sum should be deposited with the Deputy Chief Registrar of this Court who would in turn pay same to an interest yielding account pending the determination of the appeal. He submitted that, that is an indication that the 1st Respondent is not in a position to refund the money if paid to it and admission that the application is grantable. He informed the Court that the Appellant is ready and willing to give a Bank Guarantee in respect of the Judgment sum. He strongly urged this Court to grant the Motion for Stay of Execution as prayed.
STEPHANIE ABDULSALAM, ESQ for the 2nd Respondent has no objection to the grant of the Motion for Stay of Execution.
On his own part KALU ONUOHA, ESQ for the 1st Respondent opposed the Motion for Stay of Execution. He relied on the 1st Respondent’s Counter Affidavit consisting of 18 paragraphs. He informed the Court that he is not opposed to conditional Stay of Execution. He submitted that the monetary sum involved should be paid to the Deputy Chief Registrar who will in turn pay same into an interest yielding account and that whoever wins will collect the money with interest.
The law is settled that unless otherwise ordered a judgment of Court to pay money takes effect from the date it is pronounced or delivered in Court. See CHIEF M. O. OLATUNJI V OWENA BANK PLC & ANOR (2008) 8 NWLR (PART 1090) 668 AT 678 – 680 per MUSDAPHER, JSC later ON (RTD) of blessed memory.
Therefore, an Applicant seeking for the exercise of discretion must show special or exceptional circumstances. The Court must also take into account the competing interests of the parties, that is the Judgment Debtor and the Creditor in Monetary Judgment. This is because the Judgment of a Court is presumed to be correct until the contrary is established. See INTEGRATION NIG LTD VS ZUMAFON (NIG) LTD (2014) 4 NWLR (PART 1398) 479 AT 490 A – H per PETER-ODILI, JSC.
This Court in the case of NNPC V BCE CONSORTIUM ENGINEERS (2004) 2 NWLR (PART 858) 484 AT 503 B – C per GALADIMA, JCA later JSC relying on the Supreme Court case of MOBIL OIL (NIG.) LTD VS AGADAIGHO held as follows:-
“The last of this illuminating passage points out that in money judgment the Court can only allow judgment debtor who has applied for a stay of execution pending appeal to retain the debt if and only if the judgment creditor consents thereto. This is not the case in the instant case.
It is now well settled that the competing interests of the judgment creditor and judgment debtor shall be regarded as of paramount importance in granting an application for Stay of Execution of Judgment.”
Guided by the well laid down principles of law relating to exercise of Court’s discretion in granting or refusing Stay of Execution of Monetary Judgment, we have carefully and calmly read the Appellant/Applicant’s Motion for Stay of Execution, the grounds upon which it was predicated, the Affidavit in Support and the Exhibits attached, the Further and Better Affidavit and the 2nd Further and Better Affidavit and Exhibits thereto, the Counter Affidavit of the 1st Respondent, the various submissions of learned Senior Counsel to the Appellant/Applicant and the authorities relied upon vis-a-vis the submissions of learned Counsel to the 1st Respondent and we are of the firm view that interest of justice demands that a conditional Stay of Execution ought to be granted on this application and not on the terms put forward by the Appellant/Applicant.
Consequently, we grant the application for Stay of Execution on the condition that Appellant/Applicant shall deposit the Judgment sums with Deputy Chief Registrar of this Court within ten days (10) from today who shall in turn deposit the said sums of money into an interest yielding account with a reputable Bank other than the Appellant/Applicant.
At the end of the appeal whoever wins shall collect the principal sums plus interest.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.: I agree.
Appearances:
SOLOMON UMOH, SAN with him, OBINNA MBATA, ESQ. and MATHEW ECHO, ESQ. For Appellant(s)
KALU ONUOHA, ESQ. with him, IFUNANYA ORANUBA, ESQ – for 1ST RESPONDENT.
STEPHANIE ABDULSALAM, ESQ. with him, ADEDOLAPO ADEREMI – for 2ND RESPONDENT. For Respondent(s)