The Military Governor Of Lagos State & Ors. V. Chief Emeka Odumegwu Ojukwu & Anor. (1986)

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ESO, J.S.C. 

Ordinarily any court has a discretion to grant or refuse stay of execution pending an appeal but this is a discretion that must have to be exercised both judicially and judiciously bearing in mind the equal right of the parties before it (here the Applicants and the Respondents) to justice.

Normally therefore a court will not deprive a successful litigant, (here the Respondent) of the fruits of his litigation (here an Order restoring him, Chief Emeka Odumegwu Ojukwu – to his residence at No. 29 Queen’s Drive Ikoyi and restraining the present Applicants…..from evicting or taking any steps to evict the Respondent from his residence at No. 29 Queen’s Drive Ikoyi Lagos) pending the appeal; see Annot Lyle (1886) 11 PD 114 see p. 116. udgment): On 16th December, 1985, the following application, dated 9th December 1985, was filed before this Court –

“TAKE NOTICE that this Honourable Court will be moved on ….day of…1985 at the hour 9 o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Applicants for:

(1) An Order staying the execution of the ruling delivered by the Court of Appeal, Lagos in this suit and dated Wednesday 13th of November, 1985, pending the final determination of the appeal lodged herein to the Supreme Court;(2) Such further Order or Orders as this Honourable Court may deem fit to make.”

It was supported by an affidavit containing 18 paragraphs, some of which I would refer to later in these Reasons.

Also, on 11th December, 1985, the Respondent through his learned counsel, Chief F.R.A. Williams, S.A.N., filed a notice of Preliminary objection as follows –

“NOTICE OF PRELIMINARY OBJECTION”

TAKE NOTICE that at the hearing of the Defendants’ application dated the 9th day of December 1985, the Plaintiff will object that the said application is frivolous, vexatious and an abuse of the process of the court because –

(1) The said application has been filed in order purely to delay the execution of the order of the Court of Appeal reinstating the plaintiff to possession of his residential house at No. 29 Queen’s Drive Ikoyi.

(2) There was no genuine intention to prosecute the appeal initiated by the Notice of Appeal dated the 22nd day of November 1985

(3) The grounds of appeal contained in the said Notice of Appeal are frivolous and manifestly unarguable.”

The application was heard by this Court on 16th December, 1985, that is, precisely five days after it had been filed. We determined the application that day and dismissed it, after reserving our reasons for dismissing the application.

It would be useful to state a few facts as disclosed on the facts placed before us preceding the present application for a good understanding of this matter.