Arch Daniel Obaro V. Dantata & Sawoe Construction Company Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

This is an appeal against the reserved and considered ruling of Bage, J., delivered on 19th October, 1995 granting an order for a conditional stay of execution of the judgment delivered on 20th July, 1995 ill the Federal Capital Territory High Court. The appellant herein who was incidentally the plaintiff in the court below per his final amended statement of claim claimed against the respondent herein a total sum of N417,500.00 being special and general damages arising from negligence of the respondent. After hearing of the case, the learned trial Judge awarded to appellant a sum of N165,000.00 as special and general damages together with costs assessed at N2,000.00. The respondent herein being unhappy with the judgment filed a notice and grounds of appeal against the decision on 24th July, 1995. On the same day, he filed a motion on notice praying for stay of execution of the judgment which application was argued or canvassed on 14th September, 1995. The plaintiff is dissatisfied with the ruling of 19th October, 1995, staying the execution of the judgment delivered on 20th July, 1995. In the notice of appeal, learned counsel for appellant adumbrated three grounds of appeal. The grounds read as follows:-

1. The lower court erred in law in making an order directing the defendant/judgment debtor/Applicant to pay the judgment debt and costs to the Chief Registrar of the court within one month, or at all, when:

(a) there was no such prayer before him;

(b) in law, the court, not being a father Christmas, cannot grant a relief not sought by either party before him;

(c) he did not give the parties a hearing in respect thereof; and

(d) order 46 rule 2(2) of the High Court Rules on which he relied is no authority for arbitrary and capricious exercise of judicial discretion; by reason of that error deprived the plaintiff/judgment creditor/respondent (the appellant herein) of the fruit of his victory in the case.

2. The lower court erred in law in failing to exercise his discretion to grant an order for stay of execution (albeit conditionally) judiciously and judicially, in that:

(a) the court having held that the affidavit in support of the application offends the provisions of the Evidence Act and therefore useless, there was no material whatsoever before him on the basis of which he could judiciously and judicially exercise any discretion to grant the application (whether conditionally or otherwise);

(b) in law the court can only exercise its judicial discretion on the basis of material properly placed before him and not capriciously or arbitrarily.

(c) the only ground for the application for stay of execution was that “the grounds of appeal (filed) raise substantial and arguable points of law”; which grounds of appeal the learned trial judge held did not raise any “serious or recondite issue of law.”

(d) it was never alleged that if the judgment debt and cost were paid to the judgment creditor/respondent (appellant herein) it might be difficult or impossible to recover same from him if the appeal succeeded; and

(e) indeed the appellant (herein) categorically asserted in his counter affidavit that he would have no difficulty in refunding the judgment debt and cost in the unlikely event of the appeal being successful; which assertion was never refuted by the respondent herein.

3. The judgment is against the weight of the evidence.”

The learned counsel for both parties in compliance with the provisions of order 6 of the Court of Appeal Rules filed and exchanged briefs of argument. In the respective briefs, issues calling for determination were identified. The only issue framed in the appellant’s brief read as follows –

“Having regard to the relief sought in the application for stay of execution, the affidavit evidence before the court and the findings of the learned trial Judge, whether the learned trial Judge properly exercised his judicial discretion in granting the application for stay of execution, albeit conditionally?”

The respondent who was the applicant in the court below identified the issue set out immediately here under in its brief –