Attorney-general of the Federation & Ors V. Abdullahi Yunusa Bayawo (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

The applicants were the respondents before the Federal High Court, Lagos in a suit brought by the Respondent, a former staff of the 2nd applicant.

The lower Court, in its ruling of 30/4/99 had ordered for the reinstatement of the respondent and payment of all his claims and entitlements.

Dissatisfied with the said Ruling, the respondents filed an appeal against it in this Court. They also brought this application praying for the following orders.
“1. An order for stay of execution of the orders of the Federal High Court contained in the ruling of D. D. Abutu J. in Suit No. FHC/L/CS/482/98 dated 30th day of April, 1999.
2. An order for stay of contempt proceedings filed in this Suit on 7/7/99 by the respondent against principal officers of the 2nd applicant.”

The applicants filed in support of the motion an Affidavit made up of 10 paragraphs to which 5 documents marked as Exhibits ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’ were annexed. Further and better Affidavit of 7 paragraphs to which Exhibit ‘F’ the ruling of the lower Court of 22/10/99 was annexed. To a further Affidavit of 6 paragraphs filed on 20/1/2000 is annexed 10 the ruling of the lower Court of 50/ 4/99 as Exhibit ‘G’.

The respondent filed a Counter-Affidavit of 10 paragraphs in opposition to this application, to which 5 documents marked as Exhibits ‘FC’, ‘FC2’, ‘FC3’, ‘FC4’ and ‘FC5’ were annexed.

On 20/1/2000 we heard arguments for and against the grant of orders sought in this application, Mr. J. Y, Gima, of counsel for the applicants stated that the grounds of appeal raised substantial issues of law and question of jurisdiction. He submitted that there are special or exceptional circumstances that have been shown for the consideration of this application. He referred to Agbaje v. Adelekan (1990) 7 NWLR (Pt. 164) 595 at 609, 611, Vaswani Trading Co. v. Savalakh and Co. (1972) 12 SC 77. It is submitted by the learned counsel that the applicants have made a good case for the preservation of the res since the respondent would not be in a position to pay back huge sum of money awarded to him, should the appeal succeed. He relied on the case of Doma v. Ogiri (1997) 1 NWLR (Pt.481) 322 at 151; UNIPORT v. Kraus Thompson Organisation Limited and Anor. (1999) 11 NWLR (Pt.625) 91 at 102 – 103 – Shell Petroleum Dev. Co. Ltd. v. Nwolu (1991) 3 NWLR (Pt.180) 496 at 505.

On stay of contempt proceedings, it is contended by the learned counsel that since the applications are desirous of exercising their constitutional right of appeal, this Courts should use its discretion to grant a stay so as not to stultify the appeal. He cited the case of Okeke v. Yaroson (1999) 11 NWLR (Pt.625) 106 and Ezegbu v. F.A.T.B. Ltd (1992) 7 NWLR (Pt.251) 89 at 101. It is finally urged that paragraphs 13 – 16, 17, 21, 22, 24(i) and (ii), 28 and 29 should be discountenanced for offending section 87 of the Evidence Act, 1990.

Mr. M. Nezianya, for the respondent, referring to the Counter-Affidavit filed on 25/11/99, opposed the application for being incompetent, it is submitted that the grounds are vague as they do not show whether the error complained of are of law or fact. He referred to Order 3, Rule 2(4) of the Court of Appeal Rules, 1981 as amended, and these cases: Okorie v. Udom (1960) 5 FSC 162 (1960) SCNLR 326; Osawaru v. Ezeiruka (1978) 6 – 7SC 135; Sodeinde v. Registered Trustees Ahmaddiya Movement In-Islam (1980) 1 – 2 SC 163. It is also submitted that the applicants who are contemnors having lost out their preliminary objection on jurisdiction at the lower court, they cannot now parade same in their notice of appeal. It is in view of this the learned Counsel has submitted that the grounds of appeal do not show special circumstances. He relied upon Nigerian Army v. Mowarin (1992) 4 NWLR (Pt.235) 345. It is the contention of the learned Counsel that the Affidavit in Support of the application do not comply with the provision of Oaths Act Cap. 333 Laws of the Federation 1990. It is finally submitted that the damages awarded by the lower Court is not excessive. Reference was made to the case of Shugaba v. Federal Minister of Internal Affairs (1981) 2 N.C.C. 459. (1983) 3 NCLR 915: Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt.193) 593.

Responding on the question of non-compliance with the 1st schedule of the Oaths Act, J. Y. Gima of Counsel for the applicants has urged us not to cling to technicalities. That the applicants have substantially complied with the Oaths Act. He relied on the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 717. He also referred to Section 84, of the Evidence Act.

The two preliminary issues that arise in the light of the submissions of the learned Counsel for the respective parties in this application are as follows:
(1) Firstly, the issue of paragraphs 13 – 16, 17, 21, 22. 24(i) and (ii), 28 and 29 of the Counter-Affidavit offending Section 87 of the Evidence Act, 1990: and
(2) Secondly, the issue of the Affidavits in Support of the application not complying with Section 13 and the 1st Schedule to the Oaths Act Cap. 333. Laws of the Federation 1990.

I will now consider the first preliminary issue. The learned counsel for the applicants has urged this Court to expunge and discountenance the paragraphs of the Counter Affidavit stated above, saying that they offend Section 87 of the Evidence Act in that they contain extraneous matters by way of objection or prayer or legal argument or conclusion,
Section 87 of the Evidence Act States:
“87. An Affidavit shall not contain extraneous matter by way of objection or prayer, or legal argument or conclusion.”
My close perusal of paragraphs 13-17; 21-24(i) and (ii), 28, and 29, in my view do not offend against Section 87 of the Evidence Act, and I will therefore not expunge them. Section 86 of the Evidence Act states:
“86. Every Affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true’”
The respondent has complied with Section 86 and 87 of the Evidence Act. Facts are stated as they are. Those paragraphs of the Counter-Affidavit complained of do not contain extraneous matter by way of objection or prayer or even legal argument or conclusion. It is not in all cases that reference to a provision of law in an Affidavit may involve legal argument. See Fawehinmi v. The State (1990) 1 NWLR (Pt. 127) 474 at 497.

As regards non-compliance of the Affidavits of the applicants with the provision of the Oaths Act, I have carefully considered the declarations of the deponent Nnanna Alamezie at the end of the 3 Affidavits:
(i) In the Affidavit in support of the application it is declared in para 10 thus:
“10. That I swear to this Affidavit in good faith in accordance with the Oaths Law”.
(ii) In the Further and Better Affidavit the declaration is:
“7. That I make this solemn declaration conscientiously believing the same to be true and by virtue of the provision of the Oaths Act”
(iii) It is in the 3rd Further Affidavit the same deponent made this declaration similar to the 2nd above.
“6. That I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act”.
Section 13 of the Oaths Act provides as follows:
“It shall be lawful for any Commissioner for Oaths, notary public or any other person authorised by this Act administer an Oath, take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
It is the Statutory Declaration at page 12249 of the Act that is relevant here. It reads:
“I do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.”
It is quite clear that the declaration in Further and Better Affidavit and the “Further Affidavit” in paragraphs (ii) and (iii) respectively above comply with the 1st Schedule of the Oaths Act Cap.133 Laws of the Federation 1990 word for word.
The declaration in the paragraph (i) above has the wordings “in good faith” and “Oaths Law” instead or the word “conscientiously” and “Oath Act”. This Affidavit is only defective in form not in substance, I am satisfied that it is duly sworn before the Commissioner for Oaths. By virtue, therefore, of Section 84 and due compliance with Section 90(5) of the Evidence Act, the Affidavit in Support of the Applicant’s application is not defective and it cannot be discountenanced. In the case of N.N.B. PLC v. IBW ENT. Nigeria Ltd. (1998) 6 NWLR (Pt. 554) 446, the applicant did not at all comply with the 1st Schedule of the Oaths Act. This Court held that the Affidavit was incompetent and it cannot support a motion. This is not the case with the instant application.

I will now consider the two prayers in this application. First, the stay of execution pending appeal. It is trite that a successful party is entitled to enjoy the fruits of his judgment. The exception to this general rule, however, is that where an adverse party has shown special or exceptional circumstances such judgment can be stayed pending appeal. This is because the grant of stay of execution is an equitable remedy. The applicant seeking this equitable remedy indeed, has to show that he merits it. He does not just simply secure it for the asking. See Vaswani Trading Co. v. Savalakh Co. (Supra) Balogun v. Balogun (1969) 1 All NLR 349; Utilgas Nigeria and Overseas Co. v. Pan African Bank (1969) 1 All NLR 149; Utilgas Nigerian and Overseas Co. v. Pan African Bank (1974) 10 SC 105 and Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627.