Governor of Oyo State & Anor. V. Chief Akin Akinyemi (2002)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

During court session on the 24th of January, 2002, Mr. Ishola, Director Civil Litigation – Ministry of Justice, Oyo State, moved that an order for stay of execution of the judgment delivered by this court in appeal No. CA/1/12/2000 on the 7th of December, 2000, be granted pending the determination of the appeal lodged against the judgment at the Supreme Court. The enabling statutes are section 18 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, and rules, 3(1) of the Court of Appeal Rules 1981 as amended.

The application is supported by 20 paragraphs affidavit and 8 paragraphs further and better affidavit. Documents attached as exhibits include the judgment on appeal to the Supreme Court, notice of appeal, an affidavit sworn to by the respondent pursuant to Order 23 rule 1 of the High Court (Civil Procedure) Rules, 1988, bond entered by the appellant in the sum of N14, 350,000.00, motion filed on 3/1/2002 to discharge the order made in the garnishee proceeding before the trial court.

The respondent filed a 17-paragraph counter-affidavit to oppose the application for stay. In his argument, Mr. Ishola (DCL) relied on all the facts deposed to and now to serve as evidence to be relied upon by this court. He drew attention of court to ground three of the appeal- which is on the issue of lack of jurisdiction of the court to entertain the suit ab initio. Clause II of the agreement between the parties (exhibit F) makes provision that where there is any dispute between the parties same shall be referred to arbitration. The learned counsel maintained that the issue of jurisdiction can be raised at any stage even for the first time in the Supreme Court. He referred to the cases of Martins v. Nicannar Food Co. Ltd. & Anor. (1988) 2 NWLR (Pt. 74) p.75; Ogun State Housing Corporation v. Ogunsola (2000) 14 NWLR (Pt. 687) p. 431 at 444.

By way of reply to the submission of Mr. Akeredolu (SAN) appearing for the respondent, Mr. Ishola mentioned that motion for stay was filed and served on the respondent on 27/12/2001. The order nisi in the garnishee proceedings filed by the respondent was served on the applicant on 28/12/2001. The applicant filed before the lower court on 3/1/2002 motion for an order to discharge or vacate the garnishee order made on 13/12/2001 or in the alternative stay of the ruling delivered in the garnishee proceedings pending the determination of the appeal filed against the judgment of the Court of Appeal in appeal No. CA/1/12/2000 pending a further appeal to the Supreme Court. The counsel for the appellants/applicants referred to the cases of Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at p. 82; Steyr (Nig.) Ltd. v. De luke M. Enterprises Ltd. (1999) 12 NWLR (Pt. 631) p. 458 at p. 468-469.

Mr. Akeredolu (SAN) for the respondent, in his reply to the submission on the application for stay, emphasised the fact that this application for stay followed a garnishee order made at the trial court and which had been levied on the applicant. This now poses the question whether this court can grant a stay for an act that is already completed or executed. Learned counsel referred to the case of A.G., Anambra State v. Okafor (1992) 2 NWLR (PT.224) p. 396 at p. 419 – 420.

The applicant can only bring an application to set aside the garnishee order – but where the garnishee has been made absolute- the debt must be paid. Notice has to be given before the order nisi is made. Learned Senior Advocate referred to the book Debt Recovery Laws and Procedure chapter 7 page 97. Learned Senior Advocate contended that the applicant did not proffer special circumstance to justify granting his application for stay. The ground on jurisdiction was not made bona fide as the issue was extensively dealt with before the trial court – there was no appeal against it then. If the application is overruled and this court is inclined to grant a conditional stay of the judgment/debt the money should be paid into an interest yielding account within two weeks – as the applicant has enough money in its account to satisfy the condition. By way of emphasis – the application of the appellants/applicants is for an order of this court, staying execution of its judgment delivered on the 7th of December, 2001. The salient facts forming the background of the application can be found in the relevant paragraphs of the affidavit deposed to by the applicants on which they relied in the application for stay filed on the 27th of December, 2001 as follows:-

Paragraph 4 –

“That by a writ of summons dated 22nd June, 1999, the respondent as plaintiff under the undefended list procedure claimed the sum of N14,350,000 and interest on the said sum at the rate of 21% per annum against the appellants/applicants at the trial court.”

Paragraph 7 –

“That this honourable court in a unanimous decision, Coram Dalhatu Adamu, JCA, Francis Fedode Tabai, JCA and Olufunlola Adekeye, JCA delivered on the 7th day of December, 2001 allowed the appeal and entered judgment in favour of the respondent in the sum of N14,350,000 and interest on the said judgment at the rate of 21% per annum and 10% cost against the appellants/applicants. A certified true copy of the judgment is hereby attached as exhibit “A”.

By way of the special circumstances relied upon the applicant deposed as follows:-

Paragraph 9 –

“That W. A. Gbadegesin, Esq. of counsel informed me and I verily believe that the notice and grounds of appeal contained raise issue of jurisdiction and other issues in respect of which the law is recondite.”