Kosofe Local Government V. Segun Demuren (2002)

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GALADIMA, J.C.A.

This is a motion on notice, brought by the appellant pursuant to Order 3 rules 3 (1) (3) and (4) of the Court of Appeal Rules, 1981, praying the court for the following reliefs:

1. An order extending the time, within which to apply for the stay of execution of the ruling, dated 25th April, 2001.
2. An order staying the execution of the ruling dated 20th April, 2001, pending the determination of the appeal filed by the appellant/applicant.
3. And for such further order or orders as this Honourable Court, may deem fit to make in the circumstances of this case.

The application is supported by a 20 paragraph affidavit. On 2/5/2002, applicant filed further affidavit containing 15 paragraphs.

The respondent filed counter-affidavit of 15 paragraphs in opposition to the application. Applicant attached a number of documents, which are marked exhibits’ A’, ‘A1’ , and ‘B’, being the notice of appeal, treasury receipt, and the ruling of the lower court respectively.

Also annexed are exhibits ‘C’ ‘D’ ‘E’ F’ and ‘G’; Exhibit ‘F’ being the certified copy of judgment of the lower court.

On 7/5/2002, we took argument. Learned Counsel for applicant, Mr. O. Oyenuga, relied on all the paragraphs of the affidavit in support of this application, particularly paragraphs 6, 13 and 19, and also paragraphs 6 – 11, 12, 13 and 14, of the further affidavit, in support of the application. He argued that, the notice of intention to commence legal proceedings was defective as it was not served on the Secretary to the applicant’s Secretary. Reference was made to the case of Shomolu Local Government Council v. Shakiru Agbede (1996) 4 NWLR (Pt. 441) 174 at 176. Drawing our attention to the weak financial position of the applicant, as the main reason why this application ought not to be granted, learned Counsel also reasoned that to grant this application would deprive the applicant resource to prosecute its appeal. Reliance was placed on the case of Gani Fawehinmi v. Halius Akilu (1990) 1 NWLR (Pt. 127) 450.

Opposing this application, the respondent, Mr. Segun Demuren, the learned Counsel who appeared in person, remarked that he has filed a 15 paragraph counter-affidavit on 7/3/2002. He referred us to paragraphs 9, 10, 11, and 12, and submitted that the applicant has deprived him of enjoying the fruit of his judgment sum, which to date stood at N685,000. He further submitted that the applicant has failed to satisfy the basic principles guiding the grant of application for stay of execution as stated in Ise-Oluwa (Nig.) Ltd. v. Nigeria Distilleries Ltd. (2001) 6 NWLR (Pt. 709) 427 at 435. He urged the court to dismiss the application or in the alternative grant it on condition that the application shall be ordered that the judgment sum to be paid into interest yielding account of a reputable bank to abide the judgment of this court on appeal so that any successful party will collect the principal sum with interest.

Some of the principles guiding grant of application for stay of execution have been given in a plethora of cases of the Supreme Court and this court as including:

(a) The existence of special or exceptional circumstances;

(b) The preservation of the res or subject-matter of the litigation. This is to ensure that the appeal is not rendered nugatory, upon success.

(c) The subject-matter of the appeal and the request for the stay having or sharing the same substratum.

(d) Where the applicant will be financially handicapped to prosecute the appeal; although poverty per se is not a ground for granting an application for stay of execution, however poverty which results in inability of prosecuting the appeal could be; and

(f) Where the appeal raises an arguable or substantial issue of law.

I would like to state that the onus is placed squarely on the applicant to establish one or more of these principles, especially the existence of special or exceptional circumstances, and this must be shown on the face of their affidavit. See Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5 – 7 SC 60; Shodeinde v. The Registered Trustees of The Ahmaddiya Movement-in-Islam (1980) 1 – 2 SC 163; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Henkel Chemicals Nigeria Ltd. v. Henkel KG.A.A. (1993) 1 NWLR (Pt. 269) 356.