Central Bank of Nigeria V. Beckiti Construction Limited (2003)

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SULEIMAN GALADIMA, J.C.A.

By its application on notice filed on 19th March, 2003 brought before this court, applicant is praying for the following order:
“An order varying the order of conditional stay of execution made by the lower court on 3rd March, 2003 by substituting the condition given by that court with the following:
‘The judgment debt inclusive of all accrued interest be kept with the Central Bank of Nigeria which will give an undertaking to pay interest on the said amount at prevailing rate of time to time should the appeal be decided against it.”

The application is supported by a – 14 paragraph affidavit with the judgment and ruling of the lower court attached and marked exhibits ‘CBN1’ and ‘CBN4’ respectively. Exhibits ‘CBN2’ and ‘CBN5’ are the notice of appeal and a copy of letter written to the applicant by the respondent respectively. Respondent filed a counter affidavit of 10 paragraphs in opposition.

When this application came before us on the 3rd November, 2003 for hearing, Olatunji Oyeyipo, Esq., learned counsel for the applicant submitted that in an application for variation for conditional stay of execution, the applicant is expected to show how onerous the condition of stay has been. That the applicant is not satisfied with the ruling of the lower court delivered on 3/3/2003.

It is contended that the respondent by their exhibit ‘CBN5’ have shown that if the judgment sum remains with them it would be trapped. It is submitted that the case of U.B.N. Ltd. v. Odusote Bookstore Ltd. (1994) 3 NWLR (Pt. 331) 129 is not applicable to this instant case. Since the Central Bank, is a bank of the bankers, it does not operate strictly as a commercial bank and it will not in anyway trade with the respondent fund. Reliance was placed on Owena Bank Plc. v. O.B.C. Ltd. (1998) 9 NWLR (Pt. 564) 129; Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) 643.

Chief Adedeji Adekoya, Esq. learned counsel for the respondent referred to the counter-affidavit filed on 30/4/2003 in opposition to this application. He contended that the applicant, having been fully settled needs not bring this application and urged that the application should be refused and consequently dismissed as it lacks merit.

This court has the jurisdiction and the discretion to vary an earlier order of the trial court for stay of execution under certain circumstances at the instance of the applicant who initially applied for an order of stay at the trial court. However, this power provided by Order 3 rules 23(2) and (3) of the Court of Appeal Rules, 2002, must be exercised judicially and judiciously. See C.G.F.C.S.PA. v. Nigerian Ports Authority (1972) 12 SC 107; Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129 and First Bank of Nigeria Ltd. v. Doyin Investment Nigeria Ltd. (1989) 1 NWLR (Pt. 99) 634.

In considering an application for variation of the condition of stay of execution the cardinal requirement under the principle of justice is to duly consider the respective and competing rights or interest of both parties in the application with a view to maintaining a balance in their positions and doing substantial justice to them.

The grounds for which the applicant has sought the order of this court are stated in paragraphs 3 -10 of the affidavit of Olatubosun Kajogbola in support of the application thus:
“3. That I have the authority of both my employers and the appellant/applicant to depose to this affidavit.

4. That by the judgment of the lower court delivered on 16th July, 2002, the court awarded damages in the sum of N82,865,451.51 with interest at 21% per annum from 1st June, 1992 till final liquidation of the judgment debt. A copy of the judgment is annexed hereto and is marked exhibit ‘CBN1’.

5. The applicant was dissatisfied with the judgment of the lower court and instructed our chambers to appeal which we immediately did. A copy of the notice of appeal is annexed hereto and is marked exhibit ‘CBN2’.

6. Further to the appeal and upon the instruction of the applicant, our chambers filed an application seeking an order staying execution of the judgment of the lower court.

7. Upon hearing argument of counsel on the application for stay of execution, the lower court on 3rd March, 2003 delivered its ruling wherein a conditional stay of execution was granted the condition being that the applicant pays the proceeds of the judgment ‘into an interest yielding account in the Commercial Bank where the proceeding amount in this suit is lodged within 14 days’. A copy of the ruling of the lower court dated 3rd March, 2003 is attached hereto and is marked exhibit ‘CBN3’.

8. I know as a fact that the Commercial Bank referred to in exhibit ‘CBN3’ is Capital Bank International Ltd. (formerly Credit Lyonnis Commercial Bank Ltd).