Chief J. S. Amadi & Ors V. Mr. Edmund Chukwu & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C

This is an application dated 2nd day of December, 2010 but filed on 3rd day of December, 2010. The Appellants are the Applicants seeking the following Orders:

“1. An order staying execution of the judgment of the Court of Appeal, Port Harcourt Division in Appeal No. CA/PHC/281/2001 delivered on 23rd April, 2008 pending this appeal.

2. And for such further order(s) as the Honourable court may deem fit to make in the circumstances”

In supporting of the application is an affidavit of 15 paragraphs deposed to by one Udo Abahia, a Litigation Secretary in the Law firm of Larry S. & Co. of counsel to the Applicants. Attached to the application are various documents marked Exhibits AA, BB, CC and CC1 respectively. Also in support is a further affidavit of 4 paragraphs deposed to by the same Udo Abahia who deposed to the original affidavit. Attached to the further affidavit is a copy of an Amended Notice of Appeal in this case filed on 15/6/2010. The document is marked Exhibit DD.

This application was opposed by the Respondents and they filed a counter affidavit so to do. The said counter affidavit of 9 paragraphs was deposed to by one Mr. Sunny Chukwu who described himself as a principal, member of Rumu-Chukwu family of the Respondents to the appeal. A document attached to the said counter affidavit is marked Exhibit A.

When arguing the application, Mr. Larry of counsel to the applicants submitted that there is substance in the appeal with good grounds. He referred specifically to ground six (6) of the Grounds of Appeal and submitted that the affidavit in support disclosed exceptional circumstances to enable the court to grant the stay of execution sought. He referred in particular, to paragraphs 5, 6, 7, 8, 9 and 10 of the supporting affidavit. He also referred to paragraph 3 of the further affidavit filed on 18/11/2011 to which the Amended Notice of Appeal is attached.

Learned applicants’ counsel submitted that the facts contained in Exhibit AA attached to the application answered the allegation in paragraph 5 (e) of the counter affidavit of the Respondents.

He urged the court to grant the application and stay the execution of the judgment of the court below.

In response, learned counsel to the Respondents, Mr. Adele referred to the counter affidavit they filed to oppose the application. He relied on all the facts deposed to therein.

Learned counsel submitted that the judgment being appealed against is a Declaratory Judgment which under our law should not be stayed. He submitted further that once a person has been adjudged a trespasser, a stay of execution order ought not to be granted to such a person. Otherwise, to grant a stay will enable such a person to continue in trespass. He cited, Akibu v. Oduntan (1991) 2 NWLR (Pt.171) 1, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117)592.

Learned counsel submitted that the application lacks merit. He contended that the affidavit filed in support does not contain any special circumstance to warrant the grant of stay of execution. He submitted that the appellants ought to have prayed for accelerated hearing of the appeal rather than a stay of execution order. He urged the court to dismiss the application.

The applicants herein were the plaintiffs at the trial court where they had claimed the following:

(a) A declaration that the plaintiffs are entitled to the customary right of occupancy over the entire piece and parcel of land situate at Rumuwokerebe Rumukwurusi in the Port Harcourt Judicial Division and known as and called EKWU APAMINI.

(b) A declaration that the Defendants as customary tenants under native law and custom of the plaintiffs have forfeited for misconduct, all their rights in the land known as and called EKWU APAMINI.