Sirpi Alusteel Construction Nigeria Limited V. Snig Nigeria Limited (1999)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

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:-