SIRPI ALUSTEEL CONSTRUCTION NIGERIA LIMITED v. SNIG NIGERIA LIMITED
(1999)LCN/0596(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of October, 1999
CA/PH/96M/99
JUSTICES:
IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria
MICHAEL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBE Justice of The Court of Appeal of Nigeria
Between
SIRPI ALUSTEEL CONST. NIG. LTD. Appellant(s)
AND
SNIG NIGERIA LIMITED Respondent(s)
RATIO
THE PRINCIPLE GOVERNING THE GRANT OR REFUSAL FOR STAY OF EXECUTION
Generally the principle governing the grant or refusal for stay of execution was expertly and eruditely put by Coker, JSC in Vaswani Trading Co. v. Samlakh & Co. (1972) 12 S.C. 77:-
“When the order or judgment of a lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the Court of Appeal and indeed any Court will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observation of Bowen L.J. in The Annot Lyle (1886) 11 P.114 at P.116) … when it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matter which may, unless the order for stay is granted, destroy the subject-matters of the proceedings or foist upon the court especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right to appeal, or generally provide 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. “
In U.B.N. v. Fajebe Foods & anor (1994) 5 NWLR (Pt.344) 325 of 342 – 3; Salami JCA cited the view of the learned Author Dr. Akinola Aguda on the 1stt Edition of his book “Supreme Court of Appeal and High Courts of Nigeria”, where he said:-
“In considering whether or not to grant a stay pending an appeal, the Court will take into consideration the following points:-
(a) The chances of the Applicant on appeal, if such chances are virtually nil, then a stay may be refused; Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Wey v. Wey (1975) 1 SC 1. See also Olusesan Shoge v. Latifu Musa (1975) 1 NMLR 133 and Odufuve v. Fatoke (1975) 1 NMLR 222.
(b) 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; Dr. T O. Dada v. The University of Lagos & Ors. (1971) 1; University of Ife 344; Utilgas Nigerian & Overseas Co. Ltd. v. Pan African Bank (1974) 10 SC 105; (1974) 1 All NLR (Pt.2) 47.
(c) Whether if the appeal succeeds, the Applicant will not be able to reap the benefit of the judgment on appeal. See Wilson v. Church (No.2) (1978) 12 Ch.D 454, 458.
(d) Where the judgment is in respect of money and costs whether there is a reasonable probability of recovering these hack from the Respondent if the appeal succeeds; Lawrence Ogobegu Ebegbuna v. James Omotunde Ebegbuna (1974) 3 WSCA 23.
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 his appeal: Nwajekwu Emefisi & Ors v. Michael Mbanugo & Ors. (1970 – 71) 1 ECSLR 100. A stay may be ordered in respect of the sum payable, whilst an order for the payment of the costs to the counsel for the successful party is made on his giving an undertaking that he personally would refund the sum of money in case the appeal succeeds. See Wilson v. Church (No.2) ante.” PER PATS-ACHOLONU, J.C.A.
PATS-ACHOLONU, J.C.A. (Delivering the Lead Ruling): In its application dated, 31st of March, 1999, the Defendant/Appellant applied for the following prayers, that is to say:-
“an order staying the execution of the judgment of the High Court of Rivers State delivered in this suit on 1st day of December, 1998 pending the determination of the appeal filed by the defendant therefrom,”
On the 27th of May, 1999, he filed another application praying for the following prayers:”
“1. an order setting aside the Writ of Attachment issued against the Defendant/Applicant dated the 29th day of March, 1999 and obtained from the Port Harcourt High Court, Rivers State, by the Plaintiff/Respondent herein.
2. An order setting aside the purported execution by the Plaintiff/Respondent and the officials of the Port Harcourt High Court of the judgment delivered in this suit on the 1st day of December, 1999 by Honourable Justice Akpughunum of the Port Harcourt High Court.
3. An order for an injunction preventing the Deputy Sheriff of the Port Harcourt and Plaintiff/Respondent herein from further execution of the judgment given on 1st December, 1988,
4. An order directing the Deputy Sheriff of the Port Harcourt High Court and the Plaintiff/Respondent to return to the Defendant/Applicant herein all the goods and chattels of the Defendant/Applicant that the Plaintiff/Respondent and the officers of the Port Harcourt High Court have removed from the Defendant/Applicant’s premises,”
The Applicant sough for permission of the Court to argue the motion together to which the Court readily agreed as the permission was not opposed.
In his submission to the Court, Onile-Ere stated that the Applicant objected to the manner the Writ of Attachment was carried out. He submitted that the purported issuance of the Writ of Attachment and the execution were abuse of the process of the Court, He stated that the manner the Writ of Execution was carried out made whole nonsense of Order 3(3)(3) of the Court of Appeal Rules as the judgment would foist on the Appellant a fair accompli and more or less attempt to deny the Appellant of its constitutional right of appeal. He referred to Vaswani Trading Co. v. Savalakh & Co. (1972) All NLR 483; Military Governor of Lagos State v. Ojukwu (1985) 2 NWLR (Pt.10) 806; U.B.N. Ltd. v. Fajebe (1994) 5 NWLR (Pt.344) 325.
Uguru Esq. replicando, submitted that there is no evidence that the Respondent cannot pay. He stated that the matter of granting a stay is purely discretionary and no case is binding precedent on the other so as to make the Court follow it nilly willy. He told the Court that the Applicant issued a cheque which it later stopped, describing such behaviour as definitely inequitable, He further submitted that there is nothing in the affidavit in support to show that if the appeal succeeds the judgment Creditor/Respondent will be unable to pay. Besides, he further stated that there are no substantial grounds of appeal.
In its affidavit in support of the 1st Motion paper the Applicant averred that it gave notice of intention to defend the suit but the Court below ruled against it as the suit was placed in an undefended list. Equally, too the Motion for Stay filed by the Applicant before that Court was dismissed. In the affidavit in support of the 2nd application, the Applicant averred that the Writ of Attachment and Levy of Execution were carried out on the same date the ruling refusing the Motion for Stay was delivered and the learned Counsel for the Applicant described the action of the Respondent as having been done in bad faith. He contended that inspite of the Motion to set aside the Writ of Attachment the Court below refused to hearken to prayers sought.
In the 1st Affidavit filed on 6/10/99 the Respondent averred that when it was levying execution on the Appellant’s property, the Appellant issued 2 cheques covering the judgment debt and persuaded the Court bailiffs to refrain from removing the attached properties from the Appellant’s premises, and that based on such gesture of goodwill, the bailiff removed only 2 cars and left other attached property. He added in the affidavit that the cheques were stopped in any case. The affidavit added that the Respondent has assets in Nigeria worth U.S. Dollars to Million and is capable of refunding the judgment should the Applicant succeed in the appeal.
It seems to me that the Appellant/Applicant rests on the manner the Writ of Attachment and Execution were carried out. In its view that manner has the unnerving characteristic of indecent haste. It failed to understand how immediately after the Ruling on Motion for Stay was refused the Respondent quickly moved into the Appellant’s property to levy execution without granting to it what it described as the “usual grace period.” Generally the principle governing the grant or refusal for stay of execution was expertly and eruditely put by Coker, JSC in Vaswani Trading Co. v. Samlakh & Co. (1972) 12 S.C. 77:-
“When the order or judgment of a lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the Court of Appeal and indeed any Court will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observation of Bowen L.J. in The Annot Lyle (1886) 11 P.114 at P.116) … when it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matter which may, unless the order for stay is granted, destroy the subject-matters of the proceedings or foist upon the court especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right to appeal, or generally provide 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. ”
In U.B.N. v. Fajebe Foods & anor (1994) 5 NWLR (Pt.344) 325 of 342 – 3; Salami JCA cited the view of the learned Author Dr. Akinola Aguda on the 1stt Edition of his book “Supreme Court of Appeal and High Courts of Nigeria”, where he said:-
“In considering whether or not to grant a stay pending an appeal, the Court will take into consideration the following points:-
(a) The chances of the Applicant on appeal, if such chances are virtually nil, then a stay may be refused; Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Wey v. Wey (1975) 1 SC 1. See also Olusesan Shoge v. Latifu Musa (1975) 1 NMLR 133 and Odufuve v. Fatoke (1975) 1 NMLR 222.
(b) 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; Dr. T O. Dada v. The University of Lagos & Ors. (1971) 1; University of Ife 344; Utilgas Nigerian & Overseas Co. Ltd. v. Pan African Bank (1974) 10 SC 105; (1974) 1 All NLR (Pt.2) 47.
(c) Whether if the appeal succeeds, the Applicant will not be able to reap the benefit of the judgment on appeal. See Wilson v. Church (No.2) (1978) 12 Ch.D 454, 458.
(d) Where the judgment is in respect of money and costs whether there is a reasonable probability of recovering these hack from the Respondent if the appeal succeeds; Lawrence Ogobegu Ebegbuna v. James Omotunde Ebegbuna (1974) 3 WSCA 23.
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 his appeal: Nwajekwu Emefisi & Ors v. Michael Mbanugo & Ors. (1970 – 71) 1 ECSLR 100. A stay may be ordered in respect of the sum payable, whilst an order for the payment of the costs to the counsel for the successful party is made on his giving an undertaking that he personally would refund the sum of money in case the appeal succeeds. See Wilson v. Church (No.2) ante.”
There is no doubt that the Court seised with the question as to whether or not to grant a stay will look at the surrounding factors; the Court must perforce aim at preserving the res if it is capable of destruction or ruination should it change hands. Generally in case of money judgment where the Applicant makes out a case convincing the Court that the Respondent will be unable to pay should the appeal be successful, the Court will be guided by prudence to invariably grant a Motion for stay. It is the duty and I dare say the responsibility of the Applicant to convince the Court that the Respondent is a person of straw. Where the Respondent is well off in money judgment and the Applicant has not shown that it will not be able to pay, the Court will be reluctant to grant the motion.
In this case the core of the Appellant/Applicant’s case is whether or not an execution carried with such rapidity and has the feature of abuse or indecency should not be set aside by the Court. In U.S.N. Ltd. v. Fajebe Foods (supra), the Court of Appeal stated that where an execution is carried in a manner that offends the spirit and intention of the Order 3 Rule 3(3) of the Court of Appeal it will be set aside. The Rule provides that:-
“Where an application has been refused by the Court below an application for a similar purpose may be made to the Court within 15 days after the dale of the refusal.”
It seems to me that the tenor and intendment of this provision sends out a message that no motion or any act may be taken except on the expiration of the 15 days grace. The Respondent contended that it cannot wait to know whether or not the Applicant will resort to the Court of Appeal for a remedy from the wordings of Order 5 Rule (3) sub Rule (3). It seems to me that a situation where execution is made on the very day application for stay in the Court below is refused smacks of hurriedness. It leaves no room for the judgment creditor to explore the possibility of further remedies in an appellate Court. However, each case must be treated differently from another given the facts that surround it.
In this case, there was money judgment. The creditor is financially ample enough to repay the money should the Applicant succeed in appeal. Where the Respondent hurriedly issued a writ of execution and attachment and the Applicant promptly issued two cheques and persuaded the Respondent from going on further with execution, what then is the effect. In this case, the Applicant slopped the cheque. I have carefully read all affidavits of the Applicant in this case and there is not one word rebutting the deposition contained in the Respondent’s affidavit that it issued cheques and stopped them.
Why did the Applicant keep quiet about such a matter? Such underhand action gives the impression that the Applicant is not prepared to disclose the full facts of the case. The doubt is therefore created as to whether it is coming with clean hands. Even if the execution was done earlier than was expected, the Applicant to my mind ought to show that the judgment creditor will be unable to repay. I cannot stand half truths. Facts are the fountain head of law. It is said that facts have the most killing effect or persuasion and this must be known by every lawyer. Indeed it can be said that the convincing force of power of argument in the court depends largely on the clarity and strength of the attendant facts. I observe that there is always a tendency in our lawyers to be ready to cite the law without at first relying on the imperious force of facts. In the case before us the learned counsel for the Applicant had commenced citing the law before we stopped him to give us at least the resume of the facts. An experienced advocate should master the facts of the case very well and put them on the scale before approaching the Court. He would ignore at his peril the facts that are against him. He should seek to make an intellectualized and forensic analysis of the facts and seek to use them to show that regardless of some facts that are obviously against him yet the court should be convinced of the force of his contention and grant the prayers sought.
As it is said, no two cases are the same, therefore each one has to be treated in the light of the circumstances in which it is folded. The Applicant has not been very honest in disclosure of important facts. He who comes to equity must come with clean hands. There is no merit in the Applicant’s case. The application is hereby dismissed with costs assessed at N3,000.00.
AKPIROROH, J.C.A.: I have had the privilege of reading in draft the Ruing delivered by my learned brother, ACHOLONU, J.C.A, and I agree with him. The fact that the applicant issued two cheques in satisfaction of the judgment debt when the respondent was levying execution which it later stopped for no goods reason goes to show that its hands are not clean. He who comes to equity must come with clean hands.
Besides, the facts deposed in the counter affidavit by the respondent that it is in a good financial position to refund the judgment debt to the Applicant were not challenged.
Suffice it to say that this application obviously lacks merit and I also dismiss it with N3.000.00 costs in favour of the respondent.
IKONGBEH, J.C.A.: Only two questions need to be answered to dispose of the two applications brought by the applicant. Firstly, has the applicant made out any case to warrant granting him a stay of the execution of the judgment of the lower court? Secondly, is the fact that the respondent took out a writ of fifa the day the lower court refused the applicant’s application for stay of execution and executed it the next day reason enough, in the circumstances of this case, to set aside the execution?
My learned brother, Pats-Acholonu, J.C.A., has answered them to my satisfaction. I agree entirely with his reasoning and conclusion. I will only emphasise that counsel will have himself to blame for the loss of his client’s case if he fails to put before the court facts necessary and sufficient to bring the case within the classes of case within which the court may exercise its discretion in his favour.
The mere fact of filing of an appeal does not necessarily lead to the granting of a stay of execution. Section 18 of the Court of Appeal Act Cap. 75 clearly states that The Court always has the discretion, either unconditionally or on such conditions as it thinks the justice of the matter demands, to grant a stay. Only paragraphs 7 and 8 of the affidavit sworn to on 31/3/99 in support of the first motion, i.e., for stay of execution contain the facts relied on by the applicant for this prayer. Paragraph 7 states the belief of the deponent that the applicant’s appeal has a good chance of success. Paragraph 8 states that one Mr. Jacques Branntonne all whose behalf the plaintiff had prosecuted the suit before the lower court has left the country for good and so the applicant would find it difficult to recover the judgment sum should his appeal succeed. At this early stage this Court cannot or even should say whether or not the appeal will succeed. All that can be said now is that the grounds of appeal are arguable. However, that an appeal presents arguable grounds cannot by itself be ground for granting a stay. It must be considered in conjunction with other factors. As has been seen, the only other factor relied on by the applicant is the averment concerning Mr. Branntonne. Apart from the say-so of the deponent there is nothing on the record to show that Mr. Branntone ever had anything to do with the case in the court below. The first sentence in the ruling of the lower court appealed from shows that the plaintiff/respondent took out the writ of summons on its own behalf claiming the cost of the hire of its personnel and of airfare. It did not claim to be suing on behalf of anybody. There is, therefore, no basis for the deponent’s belief that the judgment sum will be difficult to recover in the event of the appeal succeeding. As this factor has not been established there is nothing to compliment the presence of good grounds of appeal. It follows that the applicant has not made a case for a grant of stay in his favour.
On the second question, our decision in U.B.N Ltd. v. Fajebe Foods (1994) 5 NWLR (Pt.344) 325 at 345 – 346 and the cases cited therein should not be taken as laying it down that once it is shown that there has been precipitated execution of judgment after the refusal by the lower court of an application for stay, then such execution must necessarily be set aside. The entire circumstances of the matter must be looked at. Where the judgment debtor takes no objection or comes up with a belated objection as an after-thought to such precipitated execution the court may refuse to intervene. Again where the applicant has not been forthright in stating the facts the Court may also refuse to lend its hand. The conduct of the applicant in this case shows clearly that its objection before us is an afterthought. The writ of fi fa was executed on 30/5/99. It issued two cheques in satisfaction of the judgment debt. There is no evidence before us that it protested by asking us to set it aside. Although it filed a motion in this Court the next day, he never complained in it of any irregular execution or requested that we set it aside. No mention whatsoever was made of the fact that execution had been levied and that it had issued cheques in payment of the debt. The clear impression was that things were still in status quo. In Fajebe’s case, supra, the judgment debtor took immediate action in the Court of Appeal to have the execution set aside. Again in that case the respondent levied execution despite the pendency of the application before the Court of Appeal for stay. Another fact against the applicant is the sneaking manner in which it went about stopping the cheques. It had no intention of satisfying the judgment debt but made the respondent to believe that it had. It then went behind the respondent and stopped the cheques. The affidavits and the counter-affidavits show that the applicant was not as forthright as it should have been. For the reasons given I too would dismiss the applications. I abide by the order as to costs in the lead ruling.
Application dismissed.
Appearances
Oladele O. Onile-Ere For Appellant
AND
- Uburu (with him, A. Onudibe) For Respondent
